§ 163. Of Title by Accession and Confusion. Title by accession is the title by which the owner of personal property acquires an estate in such other personal property, as is naturally or artificially produced by, or united to, his own. The owner or hirer of animals is entitled to their progeny produced during his ownership or term. When materials, belonging to one person, are used in the construction of an article, by another person who furnishes the principal materials, the article constructed belongs to the latter. If an artist paints a picture on the canvas of another, the whole belongs to the artist. In these, and all other instances, the owner of the principal article becomes the owner of the accession. Akin to accession is confusion, which occurs when one person wilfully so mingles his own goods with those of another, that they cannot be distinguished from each other. In such cases, if the intermixture was by consent, each has his pro rata interest therein. But if the intermixture was not by consent, the wrong-doer loses his property, and the other becomes entitled to the whole. Read 2 Bl. Comm., pp. 404, 405, 407. 2 Kent Comm., Lect. xxxvi, pp. 360–365. 2 Pars. Cont., B. iii, Ch. xi, Sec. 5, pp. 134-137. § 164. Of Title by Creation. Title by creation is the title by which a person acquires an estate in such personal property as owes its existence or value to his skill and labor. The principal classes of property acquired by this title are inventions and literary property. An invention is any new and useful art, machine, manufacture, or composition of matter, or any new and useful improvement on any art, machine, manufacture, or composition of matter, not before known and used. Literary property consists of the sentiments and language of books or other writings, the original designs of maps, charts, prints, cuts, or engravings, and the arrangement and composition of pieces of music. Both inventions and literary property belong solely to the author, as long as they are kept within his exclusive possession, but when circulated abroad, with his consent, become common property, and subject to the free use of the community. For the protection and encouragement of authors, however, the law now so provides that the benefits of their inventions or literary compositions may be secured to them, and that the public may, at the same time, enjoy the results of their literary or inventive skill. This is done, in the case of inventions, by what is called a patent, which is a grant by the state of the exclusive privilege of making, using, and vending, and authorizing others to make, use, and vend, an invention; and, in the case of literary property, by what is called copyright, which is a grant of the exclusive right of printing, reprinting, publishing, and vending the productions, in which such literary property is contained. In this country, both patents and copyrights are granted by the United States, under the provisions of the Acts of Congress relating thereto. Read 2 Bl. Comm., pp. 405-407. 2 Kent Comm., Lect. xxxvi, pp. 365–384. 2 Pars. Cont., B. iii, Ch. xiii, xiv. § 165. Of Title by Gift. Title by the joint act of the present and the former owner is of three kinds: Title by Gift; Title by Testament; and Title by Contract. Title by gift is the title by which a person acquires an estate in personal property, through the immediate, voluntary, and gratuitous transfer thereof to him, by its former owner. Gifts are of two kinds; gifts inter vivos, and gifts causa mortis. A gift inter vivos has no reference to the future, but goes into immediate and absolute effect. A gift causa mortis is a gift made by the donor in his last illness, or in contemplation and expectation of death, to be effective if he then dies, but, if he recovers, to be void. To both these kinds of gifts delivery is essential. If the property is subject to actual delivery, it must be so delivered. If not subject to actual delivery, there must be some act equivalent to it, whereby the donor parts not only with the possession, but with the dominion, of the property. If the gift be a chose in action it must be transferred by an assignment, or by some act equivalent thereto. When a gift is once perfected it is irrevocable, unless prejudicial to creditors, or unless the donor was under a legal incapacity, or was circumvented by fraud. Read 2 Bl. Comm., pp. 440-442, 514. Will. P. P., pp. 32-34, 237. 2 Kent Comm., Lect. xxxviii, pp. 437–448. 2 Redfield Wills, Ch. xii. § 166. Of Title by Testament. Title by testament is the title by which one person acquires an estate in personal property from another, after the death of that other, and by his voluntary act. A testament is a will operating upon personal property alone. Such a will was formerly good when made by parol, in which case it was called a nuncupative will. In later times, parol wills were discouraged, and justified only in cases of great necessity, as of a soldier in actual military service, or of a sailor while at sea. The property disposed of in a testament is called a legacy, and the person, to whom it is given, is known as a legatee. Although given absolutely by the will, such legacy is nevertheless conditional in its character; for if the debts due by the testator exceed the amount provided by him for their payment, the legacies may be abated, in part or entirely, according to the amount required to pay the debts. If a legatee dies before the testator, the legacy is lost or lapsed, and sinks into the residue of the estate. The assent of the executor is necessary to perfect the legal title of the legatee, and where the executor unreasonably withholds such assent, he may be compelled to yield it by decree of a court of equity. Legacies are ordinarily payable one year after the decease of the testator. Read 2 Bl. Comm., pp. 489-520. 4 Kent Comm., Lect. lxviii, pp. 516-518. 1 Redfield Wills, Ch. vi. 2 Redfield Wills, Ch. xiii, Sec. 8, 14, 16, 17. § 167. Of the Requisites of a Testament. The requisites of a will of personal property, as well as the mode and time of the vesting and payment of legacies, are now usually determined by statute in the different States. The rules, concerning the execution and construction of a written testament, are generally the same as those governing a devise. Read 1 Redfield Wills, Ch. ii, iv, v, vi, vii, ix. § 168. Of Title by Contract. Title by contract is the title by which a person acquires an estate in personal property, through the transfer thereof to him by another person, for a valuable consideration. A contract is an agreement between two or more persons, upon sufficient consideration, to do or not to do a particular thing. Four things are necessary thereto: (1) Parties able to contract; (2) A sufficient consideration; (3) A subject-matter to be contracted for; (4) An actual contracting by proposal on the one side and acceptance on the other. Read 2 Bl. Comm., p. 442. 1 Pars. Cont., Prelim. Ch., Sec. 2, 3. § 169. Of the Parties to a Contract. Any person, not debarred therefrom by law, may make a contract. An infant cannot bind himself by any contract except for necessaries. A married woman, not abandoned by her husband, can make no contract except as to her sole and separate estate, unless empowered so to do by statute. Insane persons, and persons under guardianship, are also usually unable to contract. Read 1 Bl. Comm., pp. 442-445, 465, 466. 2 Bl. Comm., pp. 290–293. 2 Kent Comm., Lect. xxviii, pp. 150-161; Lect. xxxi, pp. 234-243; Lect. xxxix, pp. 450-453. 1 Pars. Cont., B. i, Ch. xvii, Sec. 1, 3, 5-9; Ch. xviii, xix. § 170. Of the Consideration of Contracts. The consideration of a contract must be both valuable and lawful. Any benefit arising to the party promising, or any prejudice to the party to whom the promise is made, is a sufficient consideration. Mutual promises, made at the same time, are sufficient considerations for each other; |