Front Page Titles (by Subject) § 162.: Laws regulating the creation and acquisition of interests in personal property—Real and personal property herein distinguished.— - A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 2
Return to Title Page for A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 2
The Online Library of Liberty
A project of Liberty Fund, Inc.
Search this Title:
§ 162.: Laws regulating the creation and acquisition of interests in personal property—Real and personal property herein distinguished.— - Christopher G. Tiedeman, A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 2 
A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint (St. Louis: The F.H. Thomas Law Book Co., 1900). Vol. 2.
Part of: A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, 2 vols.
About Liberty Fund:
The text is in the public domain.
Fair use statement:
Laws regulating the creation and acquisition of interests in personal property—Real and personal property herein distinguished.—
It has been shown in a previous section,1 that the private property in lands is acquired from the State, and is held in subordination to the absolute property in lands, which is vested in, and can never be aliened by the State, as the representative of the public in organized society. It was also asserted and explained,1 that in consequence of the public origin of all private property in land, there was but one constitutional limitation upon the power of the legislature to regulate the acquisition and transfer of estates in land, viz., that such regulations must not interfere or conflict with vested rights. Not only in the primary acquisition of land from the State, but also in the acquisition of it from former private owners, the State has the unrestricted power to determine the conditions and form of transfer, and the character of the estates so created, as long as there is no interference with vested right by a material obstruction or practical denial of the right of alienation of a vested estate. The regulations may be arbitrary in the extreme, but they cannot be subjected to any serious constitutional objection.
It is different, however, with personal property. All personal property is the product of some man’s labor, and whether the owner has acquired it by his own labor, by inheritance or by exchange, his interest is a vested right of the most unlimited character. He does not hold it by any favor of the State, and in consequence of his possession of it he has assumed no peculiar obligation to the State. He has the right, therefore, to acquire it in any manner that he pleases, provided in so doing he does not interfere with or threaten the rights of others. Laws for the regulation of the conveyance of real property may be altogether arbitrary, provided the burden so imposed upon alienation does not amount to a practical prohibition of alienation. But in order that a similar regulation of the transfer of personal property may be lawful, it must serve some public good, and whether it does promote the public welfare is a judicial and not a legislative question. In neither case is there any likelihood that an arbitrary and wholly unreasonable regulation of the conveyance of property will be attempted. In both cases the legislature would usually be prompted to regulate conveyancing only by some public consideration, and hence the distinction here made, between real and personal property, in its application to the regulation of conveyancing, does not possess much practical importance. But a case may arise, in which the attempted regulation could, under this distinction, be declared unconstitutional, and hence it is highly proper that the distinction should be presented in this connection. The ordinary legislation, in the regulation of the conveyance of both real and personal property, has for its object either the prevention of fraud, the removal of doubt concerning the validity of one’s title, or the facilitation of investigations of titles. For some one or more of these reasons, the sale of personal property is declared to pass a good title, as against a subsequent purchaser, or incumbrancer, only when the possession has been delivered, or the bill of sale is recorded; the chattel mortgage is required to be recorded; and all transfers of property are avoided in favor of existing creditors, which are not made upon some valuable and substantial considerations. All of these are reasonable regulations, for the restraint upon the rights of alienation and acquisition is but slight and serves a worthy and public purpose; for every one is interested in the prevention of fraud, as he is of all other trespasses on the rights of others.
But there is a greater likelihood of an arbitrary or unnecessary regulation of the interests or estates which one may acquire in personal property. As has been already explained, the State has the unrestricted power to determine the kinds and characteristics of the estates which may be created in lands; but the estate or interest in personal property may be as varied and unique as human ingenuity may devise, subject to the one limitation imposed by the nature of the article of personal property. Thus, for example, it is common to find it stated in law books that a future estate may be created in personal property, where the present enjoyment does not involve necessarily a consumption of the thing itself.1 Of course, the creation of an estate in personalty of such a character, that it will prove a public injury or a private wrong, may be prohibited, and all regulations of the creation of estates and interests in personal property may be instituted, which have in view the prevention of such wrongs. But except in a few rare cases, it is difficult to see how any interest in personal property can be created which will have an injurious effect on the public or third persons. One exceptional case is that of an interest so limited as to deprive creditors of the right to subject the property to their lawful demands. A law, declaring void all conditions against sale for debts, is undoubtedly constitutional, for the public is directly interested in enforcing the payment of a debt. The contraction of a debt is a voluntary subjection of property to liability for it, and the possession of property, free from this liabilty for debt, would tend to induce and increase that wild and irresponsible speculation which does so much to produce fluctuations in values and financial disasters. It is, therefore, proper to prohibit such a limitation of both real and personal property.
See, ante, § 133.
See, ante, § 134.
Tiedeman on Real Prop., § 546.