Separate property

“ But a little investigation will show that the separate property of either is what he or she possesses at marriage or receives afterwards by gift or inheritance, while all that is acquired-during marriage by the joint earnings of the two belongs to the husband. In many States the law now provides that if the wife engages in business as a sole trader or goes outside the home to work, her earnings belong to her, but all the proceeds of her labor within the household are still the sole and separate property of the husband. ”

“ Miscellaneous Laws.—Either husband or wife may hold, manage and dispose of his or her separate property independent of the other, but property which they hold in common is under the management and control of the husband except that he cannot devise by will more than one-half of the community real or personal property, or convey, mortgage or encumber any of the community real estate unless his wife joins him. ”

“ In consequence of the admission of property, or the giving a separate right by the law of society to those things which by the law of nature were in common, there was necessarily some means to be devised, whereby that separate right or exclusive property should be originally acquired ”

“ Only a separation of property carried out as a386 principle will be able to form the new and clear ideas of justice that the present time demands. A separate estate places two individuals side by side, co-operating with the freedom that is enjoyed by a brother and sister or two friends. Both parties retain full right of decision and full responsibility. ”

“ That it is competent for the state, in its fundamental law or by statute, to provide that all property thereafter acquired by or coming to a married woman shall constitute her separate estate, not subject to the control, nor liable for the debts, of the husband, and that such regulations do not take a way or impair any vested right of the husband, is in our judgment a proposition too clear to require argument, or the citation of authorities, to support it. ”

“ So also if the father be tenant in tail, and alienes the estate-tail to a stranger in fee, the alienee thereby gains the right of possession, and the son hath only the mere right or right of property. And hence it will follow, that one man may have the possession, another the right of possession, and a third the right of property. ”

“ The usual clause in Enclosure Acts stated that the land should be 'allotted according to the several and respective rights of all who had rights and interests' in the enclosed property, and expenses were to be borne 'in proportion to the respective shares of the people interested'. ”

“ Should there be the slightest irregularity in the method of transfer, men, members of society, imprescriptible possessors of the land, might be deprived at one blow of property, possession, and the means of production. ”

“ Their right of property, that is, the right of exclusive possession, is therefore completed and conditioned by mutual recognition, and does not exist without it. All property is based upon the union of many wills into one will. ”

“ Let us admit, then, with the most careful writers, that if transient property, or the right of preference resulting from occupation, existed prior to the establishment of civil society, permanent property, as we know it to-day, is the work of civil law. It is the civil law which holds that, when once acquired, property can be lost only by the action of the proprietor, and that it exists even after the proprietor has relinquished possession of the thing, and it has fallen into the hands of a third party. ”

“ In order to satisfy the claims of these persons it was accordingly enacted that all who had obtained property from the grantees "for good and valuable consideration, and not consideration of blood, affinity or marriage," should, in lieu of the lands restorable to their former owners, receive "other lands, tenements, hereditaments of equal value, worth, or purchase." ”

“ Scholium.—If farm-rent is only a fraction of the supposed product of the proprietor, whatever the amount and value of the property, the same is true in the case of a large number of small and distinct proprietors. For, although one man may use the property of each separately, he cannot use the property of all at the same time.
To sum up. The right of increase, which can exist only within very narrow limits, defined by the laws of production, is annihilated by the right of occupancy. Now, without the right of increase, there is no property. Then property is impossible. ”

“ So also, with regard to holding estates or other property, if land be granted for the purposes of religion or learning to twenty individuals not incorporated, there is no legal way of continuing the property to any other persons for the same purposes, but by endless conveyances from one to the other, as often as the hands are changed. ”

“ If the form cannot be separated from the object, nor property from possession, possession must be shared; in any case, society reserves the right to fix the conditions of property. Let us suppose that an appropriated farm yields a gross income of ten thousand francs ”

“ ILLUSTRATION.—An illustration that gives us the idea of property will make our definition clear. A takes his shoes to a cobbler to be repaired. When he calls for them, he does not have the price for the work, and the cobbler refuses to give them up. Both A and the cobbler have a property right in the shoes. The right to absolute ownership is in A, that is his property right. The temporary possession, however, is in the cobbler, and he may hold the shoes under the lien for repairs indefinitely and until he receives his compensation. The lien is his property right. ”

“ But if one tenant in common enters into actual and exclusive possession of the land, taking the rents and profits to his own use, and openly assert his own exclusive property in the lands, and deny the title of any other, it will be considered as an adverse possession by him, and those claiming under him, and an ouster of the other claimants. ”

“ A lease of land is the rightful possession and use without the ownership of it, while a servitude over land is the rightful use without either the ownership or the possession of it. There are two distinct methods in which I may acquire a road across another man’s property. ”

“ And as the right of farm-rent necessarily implies the right of use,—in other words, as the right to cultivate land by the labor of a slave supposes one's power to cultivate it himself, according to the principle that the greater includes the less,—the name property was reserved to designate this double right, and that of possession was adopted to designate the right of use. ”

“ Our law for the distribution of intestate estates occasions a frequent division of landed property, and prevents monopolies of land. But in opposition to these we have labored under many disadvantages. ”

“ Moreover none of the usual precautions are adopted to mark the limits of the different properties, which, in the absence of any reliable land survey, are often very vaguely described in the title deeds.”198 In cases of intestacy real property is divided equally among the children or nearest relatives. When there is a will the testator can only reserve for his disposal a share of the estate equivalent to that which, after an equal division, descends by right to each of the direct heirs. ”

“ Toullier: "Property is a right, a legal power; possession is a fact." The tenant, the farmer, the commandite, the usufructuary, are possessors; the owner who lets and lends for use, the heir who is to come into possession on the death of a usufructuary, are proprietors. If I may venture the comparison: a lover is a possessor, a husband is a proprietor. ”

“ Such estates are ever more and more frequently becoming the property of the merchant or manufacturer from the town, or perhaps of the neighboring proprietor of the same inferior rank, who has lately settled in the country, and become entitled to the exercise of equal rights with the hereditary owner. ”

“ Long terms in some states have annexed to them the properties of freehold estates. In some states estates pur autre vie descend like real property; in others an estate pur autre vie is deemed freehold only during the life of the grantee ”

“ A proprietor shall have the right to possess, enjoy, and dispose of assets either individually or jointly with others. The inviolability of property and the right to inherit property shall be protected by law. ”

“ A far more serious impediment is the complicated state of the ownership of land, which renders it frequently impracticable to subdivide a property into such portions as would bring the land within the reach of small bidders. ”

“ The second law related to land, enacting that no one should occupy more than five hundred jugera, or acres, and that if he had a surplus, he should be deprived of it, for the benefit of those who wished to settle their own liabilities with other people's property. ”

“ Now, the law bases property upon immemorial, unquestionable possession; that is, prescription. Labor is only the sensible sign, the physical act, by which occupation is manifested. If, then, the cultivator remains proprietor after he has ceased to labor and produce; if his possession, first conceded, then tolerated, finally becomes inalienable,—it happens by permission of the civil law, and by virtue of the principle of occupancy. So true is this, that there is not a bill of sale, not a farm lease, not an annuity, but implies it. ”

“ Titles to estates can be made with greater facility, and it may be presumed that it will not be necessary to make the expensive and redundant conveyances which appear to be required in the transfer of real property at home. ”

“ That the owner of a chose in action or of property in the custody of another may assign a part of such rights, and that an assignment of this nature, if made, will be enforced in equity, is also settled doctrine of this court. ”

“ The same code also mentions mills and water courses as objects of private property. [91] The following clause enlightens us still more as to the condition of the land: If a dispute arises between two families concerning the boundary of their lands, the two families fight in presence of the count; the one to whom God gives the victory enters into possession of the disputed territory; the members of the other family pay a fine of 12 solidi “because they have attacked the property of another.” ”

“ I ask, then, in the first place, how possession can become property by the lapse of time? Continue possession as long as you wish, continue it for years and for centuries, you never can give duration—which of itself creates nothing, changes nothing, modifies nothing—the power to change the usufructuary into a proprietor. Let the civil law secure against chance-comers the honest possessor who has held his position for many years,—that only confirms a right already respected ”

“ In the law of the Visigoths, we find men who own vineyards, fields, meadows, and even pasturage and forests. [82] Land is hereditary property; and there is an entire section upon the division of landed possessions [Pg 19] amongst co-heirs, as well as one on the boundaries of private estates. It is the same throughout the Lombard law; the right of ownership applies to everything, even to forests. ”

“ The kind and frequency of the acts of occupancy necessary to constitute a continuous possession depend somewhat on the condition of the property, and the uses to which it is adapted in reference to the circumstances and situation of the possessor, and partly on his intention. ”

“ As in every feudal grant there were two estates, the absolute propriety in the lord, a qualified property, namely, the possession and profits, in the tenant; now that they were prohibited from taking the real tenancy, they cunningly devised a means of subdividing the tenancy, by separating the profits from the possession. When, therefore, a man had a mind to alienate to the church, as he could not do it directly, he infeoffed a person to the use of such a monastery. ”

“ The land is all private property,—or nearly so, very little of it remaining in the hands of the Government on behalf of the people generally,—and having been divided into these large sections, cannot now be split up into smaller sections except by sale or inheritance. ”

“ That act provides that an owner of a large estate may sell to his tenants the holdings they occupy, and his untenanted land to any one who desires to buy it, in such tracts and at such prices as may be agreed upon, corresponding to the income now derived from that particular property. No landlord can sell a few acres here and there of good land under this act, although, of course, he is at liberty to dispose of any part of his estate at any time at any price that he may consider proper. ”

“ In order that the question of proprietorship may not remain too long unsettled, and thereby injure the public welfare, disturbing the peace of families and the stability of social transactions, the law has fixed a time when all claims shall be cancelled, and possession shall regain its ancient prerogative through its transformation into property. ”

“ If the idea so constantly appealed to in justification of property law is to be realised; if the fruits of each man’s labor [68] are to be guaranteed to him and he is to own the instruments with which he works; if the laws of property are not to establish a parasitic class taking tribute from the labor of others in the forms of Rent and Interest, then we must modify our administration of property. ”