MBE Question Thread Forum

[FormerChild]

Question: is a statute of limitations issue substantive or procedural? I was under the belief, b/c of Civ. Pro., that it is substantive. But watching the Barbri Conflict of Laws lecture today, the guy said historically it's procedural, and then never clarified that under modern law its substantive or anything

I think it is treated as substantive for civil procedure purposes, but treated as procedural for choice of law purposes? Now that I say it, that doesn't make any sense, but I also slightly remember one of the lecturers caveating their characterization of statute of limitations in a way that made it seem like it was treated differently in other contexts.

ETA: I just did the conflicts assessment and an answer said that the modern trend in conflicts of law was to treat statutes of limitation as substantive... So in an essay, we would just need to say "If this jxd followed the traditional approach to characterizing SOL then _____ but if the ixd followed the modern trend then ____"

gracias

[RavenAgain]

Mortgage Question:

Is a loan taken out to finance an addition to a house, and secured by the entire house, considered a Purchase Money Mortgage for that new portion of the house?

PMM I believe. But what if half of the loan is for the house improvement and the other half to buy a TV? Is then 50% a PMM or nothing?

[RavenAgain]

Can some one please explain this perpetuities issue? How does the remainder below violate the rule?

“to my friend for life, and then to his widow for her life, remainder to his children then alive”

I get that the friend might ultimately marry someone who was not alive at the time interest created (new widow), and that person might have kids with him after everyone is dead, but how does that invalidate the remainder? Her life is still important as the measuring life, right?

I think the problem is that the unborn widow is not the measuring life, the friend is, because unborn widow was- at the time of the creation of the gift, unborn, she can't be a measuring life. The rule says: "No interest is good unless it must vest, if at all, not later than 21 years after some life in being at the creation of the interest." If the friend ends up marrying someone who is unborn at the time of the interest was created (ie "the unborn widow"), she's no longer the measuring life.

And theoretically- friend's unborn widow can outlive friend for more than 21 years and since the gift doesn't vest to children until the widow dies, the gift violates RAP because it could vest more than 21 years after the death of all the lives in being at the time of the creation of the gift (here the friend- who is the only measuring life), so the gift was invalid from the start.

I think the key problem here is that it is an inter vivos gift and not a will, as this would not violate RAP if it was vesting at his death.

[ConfusedL1]

Any tips on hearsay evidence?

My issues is that the problems almost never say for what purpose the evidence is being introduced, and I've gotten a few wrong because I'll think "oh, P is doing it to prove a substantive fact" without considering it could just be notice or something else.

Should I always just assume I should look for ANY other possibility?

[RavenAgain]

Any tips on hearsay evidence?

My issues is that the problems almost never say for what purpose the evidence is being introduced, and I've gotten a few wrong because I'll think "oh, P is doing it to prove a substantive fact" without considering it could just be notice or something else.

Should I always just assume I should look for ANY other possibility?

Yes. Try to think you want to bring the evidence in yourself and are looking for an excuse why you can introduce it despite it being HS (such as notice, motive, effect on listener, non-assertive act, etc...).

[ConfusedL1]

Can anyone explain the below mortgage questions?

A developer obtained a bid of $10,000 to tear down her old building and another bid of $90,000 to replace it with a new structure in which she planned to operate a sporting goods store. Having only limited cash available, the developer asked the lender for a $100,000 loan. After reviewing the plans for the project, the lender in a signed writing promised to lend the developer $100,000 secured by a mortgage on the property and repayable over ten years in equal monthly installments at 10% annual interest. The developer promptly accepted the demolition bid and the old building was removed, but the lender thereafter refused to make the loan. Despite diligent efforts, the developer was unable to obtain a loan from any other source.

Prep course says there was no consideration, so it's reliance damages only, but the borrower promises to repay the loan, with the home securing the debt as collateral, so shouldn't that be consideration? I guessed reliance correctly, but the "no consideration" point seems wrong to me.

[RavenAgain]

Does the jury always only decide equitable remedy rewarding claims and the judge the legal remedy? What if there are interrelated? Would it not be important for the jury to have a complete picture?

[RavenAgain]

No no thanks I got that. I meant that the reason the perpetuities issue exists if "heirs" are included is because the property may not vest until 21 years after Jeff's life because we don't know who the heirs are?

Kind of. Even if we knew who they were, the idea is that they could take more than 21 years after a measuring life.

I interpret the RAP question in a different way, but please feel free to comment!
Either way worded (for "Jeff" or including his heirs) - it will always violate RAP because the Executory Interest can vest in more than 21 years after either B's or J's death. So whether it is Jeff or Jeff and his heirs does not matter. Doctrine of Worthier Title would still convert Jeff and his heirs into a FSA for Jeff. Once Jeff's interest is stricken it leaves a FS determinable for Ben and a possibility of reverter in the transferor.

[RavenAgain]

Whats the difference between Durham and Diminished Capacity? Sounds very similar "but for the disease"....

[dlrbfl]

Property Question: I am generally confused about contribution, partition, reimbursement, credit, and accounting regarding co-tenant's rights and duties.

Are they just different means of getting paid? For example, my outline says a co-tenant leasing premises out must ACCOUNT to the other tenant for their share of rental income, but that a co-tenant may seek CONTRIBUTION for repairs. And then for improvements, there is no right to contribution, but a co-tenant can get CREDIT for an increase in value attributable to the improvement. I am so confused

Thank you!

[InterAlia1961]

Property Question: I am generally confused about contribution, partition, reimbursement, credit, and accounting regarding co-tenant's rights and duties.

Are they just different means of getting paid? For example, my outline says a co-tenant leasing premises out must ACCOUNT to the other tenant for their share of rental income, but that a co-tenant may seek CONTRIBUTION for repairs. And then for improvements, there is no right to contribution, but a co-tenant can get CREDIT for an increase in value attributable to the improvement. I am so confused

Thank you!

You don't sound confused to me. You're a lawyer, right? Knowing how everyone, including you, gets paid is a huge chunk of the job. When in doubt on an essay or in real life, identify the payer, and proceed from there.

[ConfusedL1]

Contracts:

You owe bank money $10,000. You ask for them to accept small payments over a year. They say OK, but no consideration offered. They turn around and sue you for the $10,000.

Must this promise be in writing? It's over $500, isn't it? Or is it the fact that no new money is involved keep it from needing to be in writing?

[Bobby_Axelrod]

Contracts:

You owe bank money $10,000. You ask for them to accept small payments over a year. They say OK, but no consideration offered. They turn around and sue you for the $10,000.

Must this promise be in writing? It's over $500, isn't it? Or is it the fact that no new money is involved keep it from needing to be in writing?

The requirement of a writing for contracts over $500 only pertains to the sale of goods.

[Toubro]

No no thanks I got that. I meant that the reason the perpetuities issue exists if "heirs" are included is because the property may not vest until 21 years after Jeff's life because we don't know who the heirs are?

Kind of. Even if we knew who they were, the idea is that they could take more than 21 years after a measuring life.

I interpret the RAP question in a different way, but please feel free to comment!
Either way worded (for "Jeff" or including his heirs) - it will always violate RAP because the Executory Interest can vest in more than 21 years after either B's or J's death. So whether it is Jeff or Jeff and his heirs does not matter. Doctrine of Worthier Title would still convert Jeff and his heirs into a FSA for Jeff. Once Jeff's interest is stricken it leaves a FS determinable for Ben and a possibility of reverter in the transferor.

The Doctrine of Worthier title is inapplicable here - it's only relevant when the grantor conveys to a grantee and creates, in the same conveyance, a remainder or executory interest in grantor's heirs. In that case the grant to grantor's heirs is treated as creating a reversion in FSA to the grantor. The idea was that grantor's heirs would the take by descent (more $$ for the crown) rather than by devise (the fiction being that taking by descent is worthier than taking by devise). Today the rule usually only applies to inter vivos transfers though.

So the conveyance to Jeff alone, and not to Jeff and his heirs, creates a construction problem. Traditionally courts would hold that it's just a life estate, because of a presumption that a grantor would not want to hurt his or her heirs' interests. If it's just a life estate, it would be clear within the span of Jeff's life if he'd take; if he dies and hasn't taken, the conveyance would fail. Vest or fail, we're gonna know within the lifetime of a relevant life in being (Jeff). If it's construed as being more than a life estate -- not bc of Worthier Title (see above) but some other rule of construction -- then it would violate RAP for reasons we've both identified.

[BuddyHoller]

CivPro question on Counterclaims

A and B transact. A and B later both injured in an accident completely unrelated to the transaction. A sues B over the transaction. B brings counterclaim related to the injury for negligence, not the transaction.

Barbri is saying this is a compulsory counterclaim because it arose from the same transaction or occurrence. But the question specifically says it is not. What am I missing?

[Bobby_Axelrod]

CivPro question on Counterclaims

A and B transact. A and B later both injured in an accident completely unrelated to the transaction. A sues B over the transaction. B brings counterclaim related to the injury for negligence, not the transaction.

Barbri is saying this is a compulsory counterclaim because it arose from the same transaction or occurrence. But the question specifically says it is not. What am I missing?

Question number?

[BuddyHoller]

CivPro question on Counterclaims

A and B transact. A and B later both injured in an accident completely unrelated to the transaction. A sues B over the transaction. B brings counterclaim related to the injury for negligence, not the transaction.

Barbri is saying this is a compulsory counterclaim because it arose from the same transaction or occurrence. But the question specifically says it is not. What am I missing?

Question number?

#16138

[Bobby_Axelrod]

CivPro question on Counterclaims

A and B transact. A and B later both injured in an accident completely unrelated to the transaction. A sues B over the transaction. B brings counterclaim related to the injury for negligence, not the transaction.

Barbri is saying this is a compulsory counterclaim because it arose from the same transaction or occurrence. But the question specifically says it is not. What am I missing?

Question number?

#16138

Ah, the call of the question isn't asking whether B's negligence claim is a compulsory counterclaim. It's asking whether A's claim arising out of the same car accident is a compulsory counterclaim, which it is.

[FormerChild]

Confused as to a Titles issue and BFP's, not sure how to word it so I'll just include the Adaptibar question that confused me:

"The owner in fee simple of Richacre, a large parcel of vacant land, executed a deed purporting to convey Richacre to her nephew. The owner told her nephew, who was then 19, about the deed and said that she would give it to him when he reached 21 and had received his undergraduate college degree. Shortly afterward the nephew searched the owner's desk, found and removed the deed, and recorded it.

A month later, the nephew executed an instrument in the proper form of a warranty deed purporting to convey Richacre to his fiancee. He delivered the deed reciting that it was given in exchange for "$1 and other good and valuable consideration," and explained that to make it valid the fiancee must pay him $1. The fiancee, impressed and grateful, did so. Together, they went to the recording office and recorded the deed. The fiancee assumed the nephew had owned Richacre, and knew nothing about the nephew's dealing with the owner. Neither the owner's deed to the nephew nor the nephew's deed to his fiancee mentioned anything about any conditions.

The recording act of the jurisdiction provides: "No conveyance or mortgage of real property shall be good against subsequent purchasers for value and without notice unless the same be recorded according to law."

Two years passed. The nephew turned 21, then graduated from college. At the graduation party, the owner was chatting with the fiancee and for the first time learned the foregoing facts.

The age of majority in the jurisdiction is 18 years old.

The owner brought an appropriate action against the fiancee to quiet title to Richacre.

The court will decide for …

A. the owner, because the nephew's deed to the fiancee before the nephew satisfied the owner's conditions was void, because the fiancee had paid only nominal consideration.
B. the owner, because her deed to the nephew was not delivered.
C. the fiancee, because the nephew has satisfied the owner's oral conditions.
D. the fiancee, because the deed to her was recorded. "

The answer is B. I get the delivery concept totally and understand why the owner retailed title. What I don't understand, and what the explanation did not touch on, was why the fiancee is not a BFP? Even if she were a BFP, would the owner still have a superior title b/c the original deed to the nephew was never delivered? What if instead of it being the nephew's fiancee, the nephew sold it to a random third party, Jim. Assuming Jim had no actual, inquiry or record notice (since nephew's deed was recorded), would owner still have superior title than Jim, a BFP?

[Puffman1234]

Confused as to a Titles issue and BFP's, not sure how to word it so I'll just include the Adaptibar question that confused me:

"The owner in fee simple of Richacre, a large parcel of vacant land, executed a deed purporting to convey Richacre to her nephew. The owner told her nephew, who was then 19, about the deed and said that she would give it to him when he reached 21 and had received his undergraduate college degree. Shortly afterward the nephew searched the owner's desk, found and removed the deed, and recorded it.

A month later, the nephew executed an instrument in the proper form of a warranty deed purporting to convey Richacre to his fiancee. He delivered the deed reciting that it was given in exchange for "$1 and other good and valuable consideration," and explained that to make it valid the fiancee must pay him $1. The fiancee, impressed and grateful, did so. Together, they went to the recording office and recorded the deed. The fiancee assumed the nephew had owned Richacre, and knew nothing about the nephew's dealing with the owner. Neither the owner's deed to the nephew nor the nephew's deed to his fiancee mentioned anything about any conditions.

The recording act of the jurisdiction provides: "No conveyance or mortgage of real property shall be good against subsequent purchasers for value and without notice unless the same be recorded according to law."

Two years passed. The nephew turned 21, then graduated from college. At the graduation party, the owner was chatting with the fiancee and for the first time learned the foregoing facts.

The age of majority in the jurisdiction is 18 years old.

The owner brought an appropriate action against the fiancee to quiet title to Richacre.

The court will decide for …

A. the owner, because the nephew's deed to the fiancee before the nephew satisfied the owner's conditions was void, because the fiancee had paid only nominal consideration.
B. the owner, because her deed to the nephew was not delivered.
C. the fiancee, because the nephew has satisfied the owner's oral conditions.
D. the fiancee, because the deed to her was recorded. "

The answer is B. I get the delivery concept totally and understand why the owner retailed title. What I don't understand, and what the explanation did not touch on, was why the fiancee is not a BFP? Even if she were a BFP, would the owner still have a superior title b/c the original deed to the nephew was never delivered? What if instead of it being the nephew's fiancee, the nephew sold it to a random third party, Jim. Assuming Jim had no actual, inquiry or record notice (since nephew's deed was recorded), would owner still have superior title than Jim, a BFP?

I've seen this in a few problems and as far as I can tell the issue is that you cannot be a BFP if the person you're buying it from never had any title at all or cannot trace it back properly to good title. If this wasn't true then any random person could just come in, claim they own land, sell it to the unwitting BFP, and the BFP would be able to take the land from the actual owner who never conveyed anything at any point. Here, Nephew never got title so he can't convey it. This is the kind of situation where the estoppel by deed thing comes into play.

If Nephew were eventually validly given the deed, then the BFP he "sold" to would take it. I don't know what would happen if that BFP had sold it to another BFP. I also don't know what happens with the shelter rule when it extends past 1 sheltered buyer. I haven't seen any problems involving a longer chain than one person past the bad actor in either the estoppel by deed or shelter rule context and the Themis outlines I have don't say how it works past that, so I hope it never comes up.

[BuddyHoller]

CivPro question on Counterclaims

A and B transact. A and B later both injured in an accident completely unrelated to the transaction. A sues B over the transaction. B brings counterclaim related to the injury for negligence, not the transaction.

Barbri is saying this is a compulsory counterclaim because it arose from the same transaction or occurrence. But the question specifically says it is not. What am I missing?

Question number?

#16138

Ah, the call of the question isn't asking whether B's negligence claim is a compulsory counterclaim. It's asking whether A's claim arising out of the same car accident is a compulsory counterclaim, which it is.

Ah, thank you. The explanation was poorly worded and I missed that.

[DCESQ]

Confused as to a Titles issue and BFP's, not sure how to word it so I'll just include the Adaptibar question that confused me:

"The owner in fee simple of Richacre, a large parcel of vacant land, executed a deed purporting to convey Richacre to her nephew. The owner told her nephew, who was then 19, about the deed and said that she would give it to him when he reached 21 and had received his undergraduate college degree. Shortly afterward the nephew searched the owner's desk, found and removed the deed, and recorded it.

A month later, the nephew executed an instrument in the proper form of a warranty deed purporting to convey Richacre to his fiancee. He delivered the deed reciting that it was given in exchange for "$1 and other good and valuable consideration," and explained that to make it valid the fiancee must pay him $1. The fiancee, impressed and grateful, did so. Together, they went to the recording office and recorded the deed. The fiancee assumed the nephew had owned Richacre, and knew nothing about the nephew's dealing with the owner. Neither the owner's deed to the nephew nor the nephew's deed to his fiancee mentioned anything about any conditions.

The recording act of the jurisdiction provides: "No conveyance or mortgage of real property shall be good against subsequent purchasers for value and without notice unless the same be recorded according to law."

Two years passed. The nephew turned 21, then graduated from college. At the graduation party, the owner was chatting with the fiancee and for the first time learned the foregoing facts.

The age of majority in the jurisdiction is 18 years old.

The owner brought an appropriate action against the fiancee to quiet title to Richacre.

The court will decide for …

A. the owner, because the nephew's deed to the fiancee before the nephew satisfied the owner's conditions was void, because the fiancee had paid only nominal consideration.
B. the owner, because her deed to the nephew was not delivered.
C. the fiancee, because the nephew has satisfied the owner's oral conditions.
D. the fiancee, because the deed to her was recorded. "

The answer is B. I get the delivery concept totally and understand why the owner retailed title. What I don't understand, and what the explanation did not touch on, was why the fiancee is not a BFP? Even if she were a BFP, would the owner still have a superior title b/c the original deed to the nephew was never delivered? What if instead of it being the nephew's fiancee, the nephew sold it to a random third party, Jim. Assuming Jim had no actual, inquiry or record notice (since nephew's deed was recorded), would owner still have superior title than Jim, a BFP?

I've seen this in a few problems and as far as I can tell the issue is that you cannot be a BFP if the person you're buying it from never had any title at all or cannot trace it back properly to good title. If this wasn't true then any random person could just come in, claim they own land, sell it to the unwitting BFP, and the BFP would be able to take the land from the actual owner who never conveyed anything at any point. Here, Nephew never got title so he can't convey it. This is the kind of situation where the estoppel by deed thing comes into play.

If Nephew were eventually validly given the deed, then the BFP he "sold" to would take it. I don't know what would happen if that BFP had sold it to another BFP. I also don't know what happens with the shelter rule when it extends past 1 sheltered buyer. I haven't seen any problems involving a longer chain than one person past the bad actor in either the estoppel by deed or shelter rule context and the Themis outlines I have don't say how it works past that, so I hope it never comes up.

My understanding is that the nephew is a donee and not a BFP but a donee because he didn't purchase it for value, it was a gift. BFPs do not include donees, heirs or devisees (nor are they protected under the recording statute unless the shelter rule applies). Here the shelter rule wouldn't apply to the fiancee because the nephew isn't a BFP even though the shelter rules applies to donees, devisees, and heirs of a BFP.

[RavenAgain]

No no thanks I got that. I meant that the reason the perpetuities issue exists if "heirs" are included is because the property may not vest until 21 years after Jeff's life because we don't know who the heirs are?

Kind of. Even if we knew who they were, the idea is that they could take more than 21 years after a measuring life.

I interpret the RAP question in a different way, but please feel free to comment!
Either way worded (for "Jeff" or including his heirs) - it will always violate RAP because the Executory Interest can vest in more than 21 years after either B's or J's death. So whether it is Jeff or Jeff and his heirs does not matter. Doctrine of Worthier Title would still convert Jeff and his heirs into a FSA for Jeff. Once Jeff's interest is stricken it leaves a FS determinable for Ben and a possibility of reverter in the transferor.

The Doctrine of Worthier title is inapplicable here - it's only relevant when the grantor conveys to a grantee and creates, in the same conveyance, a remainder or executory interest in grantor's heirs. In that case the grant to grantor's heirs is treated as creating a reversion in FSA to the grantor. The idea was that grantor's heirs would the take by descent (more $$ for the crown) rather than by devise (the fiction being that taking by descent is worthier than taking by devise). Today the rule usually only applies to inter vivos transfers though.

So the conveyance to Jeff alone, and not to Jeff and his heirs, creates a construction problem. Traditionally courts would hold that it's just a life estate, because of a presumption that a grantor would not want to hurt his or her heirs' interests. If it's just a life estate, it would be clear within the span of Jeff's life if he'd take; if he dies and hasn't taken, the conveyance would fail. Vest or fail, we're gonna know within the lifetime of a relevant life in being (Jeff). If it's construed as being more than a life estate -- not bc of Worthier Title (see above) but some other rule of construction -- then it would violate RAP for reasons we've both identified.

Good points. I meant Rule in Shelley's case not Worthier Title, always getting confused between these two!

If what you are saying is right it would mean that any transfer which says "to J" could be viewed as creating only a life estate. However, my understanding is that the technical requirement to add wording like "to J and his heirs", to ensure you are transferring a fee simple, had been abolished, and we should treat any gift that simply says "to J" as a transfer of a fee simple, certainly for MBE purposes. Would you agree?

[Toubro]

No no thanks I got that. I meant that the reason the perpetuities issue exists if "heirs" are included is because the property may not vest until 21 years after Jeff's life because we don't know who the heirs are?

Kind of. Even if we knew who they were, the idea is that they could take more than 21 years after a measuring life.

I interpret the RAP question in a different way, but please feel free to comment!
Either way worded (for "Jeff" or including his heirs) - it will always violate RAP because the Executory Interest can vest in more than 21 years after either B's or J's death. So whether it is Jeff or Jeff and his heirs does not matter. Doctrine of Worthier Title would still convert Jeff and his heirs into a FSA for Jeff. Once Jeff's interest is stricken it leaves a FS determinable for Ben and a possibility of reverter in the transferor.

The Doctrine of Worthier title is inapplicable here - it's only relevant when the grantor conveys to a grantee and creates, in the same conveyance, a remainder or executory interest in grantor's heirs. In that case the grant to grantor's heirs is treated as creating a reversion in FSA to the grantor. The idea was that grantor's heirs would the take by descent (more $$ for the crown) rather than by devise (the fiction being that taking by descent is worthier than taking by devise). Today the rule usually only applies to inter vivos transfers though.

So the conveyance to Jeff alone, and not to Jeff and his heirs, creates a construction problem. Traditionally courts would hold that it's just a life estate, because of a presumption that a grantor would not want to hurt his or her heirs' interests. If it's just a life estate, it would be clear within the span of Jeff's life if he'd take; if he dies and hasn't taken, the conveyance would fail. Vest or fail, we're gonna know within the lifetime of a relevant life in being (Jeff). If it's construed as being more than a life estate -- not bc of Worthier Title (see above) but some other rule of construction -- then it would violate RAP for reasons we've both identified.

Good points. I meant Rule in Shelley's case not Worthier Title, always getting confused between these two!

If what you are saying is right it would mean that any transfer which says "to J" could be viewed as creating only a life estate. However, my understanding is that the technical requirement to add wording like "to J and his heirs", to ensure you are transferring a fee simple, had been abolished, and we should treat any gift that simply says "to J" as a transfer of a fee simple, certainly for MBE purposes. Would you agree?

Oh hmmm. For some reason the practice questions I've done (including those from my 1L property professor, extra problems from other commercial sources during 1L, and of course bar prep stuff now) have never brought up this issue although it certainly jibes with the general trend of the relaxation of a lot of the rules. But I'm glad I've mentally flagged this and I'll be hypersensitive to it going forward. Will report back if I notice anything!

[liebs378]

If a defendant kills someone while voluntarily intoxicated are they guilty of second degree depraved heart murder or involuntary manslaughter caused by criminal negligence?


I'm having trouble distinguishing between the to