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Property Law

Generally, property is divided into two major areas: realty and personalty. Realty is land, whereas personalty is possessions—for instance, jewelry, money, furniture, or (formerly) slaves. State laws regulate who may purchase property, who may own it, and how it will be distributed upon the death of the owner or owners. This premise applies unless the land is federal property, in which case the federal government makes the determination.

Property laws have been important from the beginning of this nation, especially since many new citizens did not or could not own property in their countries of origin. Disagreement among the colonies about continuing British legal traditions resulted in differences in colonial laws—some colonies wanted to remain true to British legal tradition, whereas others chose to abandon some or all of the traditions. With its very structured property and inheritance common-law tradition, Great Britain allowed women to file suit in chancery courts, known as “equity courts.” The approach a colony took on such an issue determined to a large extent the rights and privileges that women living in that colony possessed.

Some colonies, such as Virginia, had liberal laws that gave widows the right to own or control the use of land as part of their dowry rights.13 Connecticut, on the other hand, gave women no rights to own their property or their husbands' real property. Other colonies gave wives the right of private examination.14 Their laws required husbands to get the signatures of their wives before title to joint property or property brought to the marital state by the wife could be conveyanced or transferred. 15 Virginia adopted the British chancery court system, which gave women the ability to challenge male descendants' claims to land. In the western territories, because of the influence of Spanish civil law, women might enjoy community property rights.

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Jones v. Porters, 1740. Law Library of Congress.

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The importance of courts is evinced by the relative abundance of published court opinions. Some cases even reached the U. S. Supreme Court. One of the earliest, Jones v. Porters, was decided in 1740 in a Virginia court.16 In it, the court nullified a conveyance made by a married couple because the wife's private examination had not been recorded. Without the private examination on record, purchases could be nullified, as illustrated by a 1691 law of New York: “An Act declaring what are the Rights & Privileges of Their Majesties Subjects inhabiting within Their Province of New-York: That no Estate of a Feme Covert shall be sold or conveyed, but by Deed acknowledged by her in some Court of Record, the Woman being secretly examined, if she doth it freely, without threats or compulsion of her Husband.”17

Between the late eighteenth and the end of the nineteenth century, the U.S. Supreme Court rendered more than one hundred decisions in which women and property rights or conveyancing of property were at issue. One of the first cases was Barnes' Lessee v. Irwin in 1793, which concerned a wife's inherited property and an antenuptial agreement.18 The high court ruled in favor of the defendant, upholding the validity of the antenuptial agreement and the wife's right to grant ownership through her will. The importance of property ownership and the right to devise were clearly evident in the pervasive laws and court decisions rendered in colonial America and the early United States of America.

PATHFINDER: Property Rights

While reading an article on community property in New Mexico, you see a commentary on a court decision that interests you. A footnote gives the legal citation as McDonald v. Senn et al., 53 N.M. 198, 204 P.2d 990 (1949).19 The Law Library of Congress has both reporters, New Mexico Reports (N.M.) and the Pacific Reporter, Second Series (P.2d), but you choose to use the Pacific Reporter, the regional reporter. As you begin reading the decision, you discover that the New Mexico community property law was adopted in common law in 1876; the statute was passed later. The statute was based on California law, which was modeled on the civil law of Spain and Mexico.

You are interested in looking at both the earliest statutes on community property in California and some judicial decisions interpreting those laws. You can either (1) find the case citations from California listed in the McDonald decision, or (2) find the statutory citations from California listed in the decision. The most expedient approach is to use the statutory citations.

The California statutory citation for community property, written in the dissent, is “Section 161a of the California Civil Code, . . . adopted in 1927.”20 Start your search for the earliest statutes with this citation to the law being interpreted here. In the Civil Code of the State of California . . . 1927, section 161a of the appendix is an amendment to an earlier law. Sections 159-181 in the main body of the Civil Code give the law antedating this amendment. Because this edition of the Civil Code is annotated, you find a short history of the legislation here. Following section 159, “Husband and wife. Property relations,” you read:

“Legislation §159. 1. Enacted March 21, 1872; based on Stats. 1850, p. 254, §§ 14, 15, 22, 23; Field's Draft, N. Y. Civ. Code, § 80. 2. Amended by Code Amdts. 1873-74, p. 193, inserting ‘in writing’ after ‘may agree.’”21

To follow the tracings, first consult the Civil Code of the State of California, 1872. Section 164 of the code states: “All other property acquired after marriage, by either husband or wife, or both, is community property.”22 The notes in the annotations indicate that the first mention of community property occurs in the California Constitution, 1849, Article XI. Sec. 14. The General Laws of the State of California, from 1850 to 1864, Inclusive quotes the section:

Husband and Wife

An Act defining the rights of husband and wife.

Passed April 17, 1850, 254.

§3564. Sec. 2. All property acquired after the marriage by either husband or wife, except such as may be acquired by gift, bequest, devise, or descent, shall be common property.”23

The California Constitution of 1849, Article XI: Promiscuous Provisions. 215. section 14 states:

“All Property, both real and personal, of the wife, owned or claimed by her before marriage, and that acquired afterwards by gift, devise, or descent, shall be her separate property; and laws shall be passed more clearly defining the rights of the wife, in relation as well to her separate property, as to that held in common with her husband.”24

Also interesting is a mention of a treatise entitled Civil Laws of Spain and Mexico, a translation of the civil law of Spain published in 1851, in the discussion of McDonald v. Senn. Chapter 4 of the treatise, Rights and duties of Husband and Wife in relation to the property acquired during marriage, Section 1, Community of Goods, states:

“Art. 43. The law recognizes a partnership between the husband and wife as to the property acquired during marriage, and which exists until expressly renounced, in the manner prescribed in Section 3.”25

Court decisions can be found in the notes provided in the annotated codes or by using the state digests. In this instance, the Civil Code of the State of California is annotated and provides a number of citations to secondary sources:

“1) California Jurisprudence: See articles Husband and Wife; Divorce and Separation, vol. 9, p. 821. 2) A.L.R. Notes: Liability of husband for services rendered by wife in carrying on his business, note 23 A.L.R. 18.”26
(A.L.R. is American Law Reports.) The General Laws of the State of California is annotated also and provides a number of judicial decisions in the marginal notes: “Separate property of husband. 13 Cal. 9. 18 Cal. 654. Common property.”27 The first, 13 Cal. 9, is a case named Barker v. Koneman (1859), an appeal from a district court concerning property left in trust for the widow. The case 18 Cal. 654, or Lewis v. Lewis, is an appeal from probate court in 1861 determining the value difference between the late husband's separate estate and the common property.28

Interpreting and tracing the citations to statutory law and court decisions may initially seem complex, but once you begin to find the relevant footnotes and recognize legal citations, the research process is the same as it is in other subject areas.

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