Real Property II Final Exam, Barbri MBE questions, BUSI MC Lesson 2, Rights in Real Property - Multiple Choice Questions, prop questions

A small processor of specialized steel agreed in writing with a small manufacturer of children's toys that it would supply, and the manufacturer would buy, all of the manufacturer's specialized steel requirements over a period of years at a set price per ton of steel. Their contract did not include a nonassignment clause. Recently, the toy manufacturer decided to abandon its line of steel toys, so it made an assignment of its rights and delegation of its duties under the contract to a toymaker many times larger. The large toymaker notified the steel processor of the assignment and relayed to the processor its good faith belief that its requirements will approximate those of the assignor. Must the steel processor supply the requirements of the large toymaker? (A) Yes, because there was no nonassignment clause in the contract. (B) Yes, because the large toymaker acted in good faith to assure the steel processor that its requirements will approximate those of the small manufacturer into whose shoes it stepped. (C) No, because requirements contracts are not assignable under the UCC (D) No, because the steel processor did not give prior approval of the assignment.

(A) Because the large toymaker acts in good faith in setting its requirements to approximately those of the small manufacturer into whose shoes it stepped, the contract may be assigned. The contract in this question is a "requirements" contract: The steel processor must sell the small manufacturer of children's toys all the specialized steel it requires for its toys. Generally, the right to receive goods under a requirements contract is not assignable because the obligor's duties could change significantly. In fact, here, a significant change would seem possible because the large toymaker is a larger company than the small manufacturer and its needs could be greater. However, the UCC allows the assignment of requirements contracts if the assignee acts in good faith not to alter the terms of the contract. [UCC 2-306] (The UCC applies here because goods are involved.) Thus, assuming the large toymaker's requirements remain about the same as the small manufacturer's requirements, the steel processor would be required to honor its contract, now assigned to the large toymaker. (A) is wrong because requirements contracts may be nonassignable, even without a nonassignment clause. Thus, the clause would be irrelevant. The only thing that could allow assignment of a requirements contract is a good faith limitation, as addressed in choice (B). (C) is wrong because the UCC does allow requirements contracts to be assigned, as long as the good faith limitation is satisfied. (D) is similarly incorrect. The UCC would allow assignment without approval by the obligor if there is a good faith limitation on the requirements.

A landowner included in his will a provision giving "all of my property, both real and personal, wherever situated, to my widow for life, and after her death to any of our children who may survive her." What is the gift to the children? A A contingent remainder. B A vested remainder. C A shifting executory interest. D Void, as violating the Rule Against Perpetuities.

(A) The children have a contingent remainder. A remainder is a future interest created in a transferee that is capable of taking in present possession on the natural termination of the preceding estate created in the same disposition. Note that, as a rule of thumb, remainders always follow life estates. A remainder will be classified as contingent if its taking is subject to a condition precedent, or it is created in favor of unborn or unascertained persons. Here, the interest in the children follows a life estate and is a remainder because it is capable of taking in possession on the natural termination of the preceding estate. It is subject to the condition precedent of surviving the landowner's widow and, additionally, is in favor of unascertained persons Thus, the interest is a contingent remainder. (B) is incorrect because a vested remainder can be created in and held only by ascertained persons in being, and cannot be subject to a condition precedent. (C) is incorrect because a shifting executory interest is one that divests the interest of another transferee; i.e., it cuts short a prior estate created by the same conveyance. The gift to the children does not divest the interest of the widow; she retains a life estate in the property. The children's interest takes in possession only on the natural termination of the widow's estate (i.e., at her death).

The criminal statutes of the state define manslaughter and murder as they were defined at common law. As to insanity, the state has the following provision: "Under the defense of insanity a defendant may be entitled to acquittal if, because of mental illness, the defendant was unable to control his or her actions or to conform his or her conduct to the law." The defendant was put on trial in the state for the murder of his wife and her co-worker. The evidence at trial established that the defendant's wife was having an affair with the co-worker, and that the defendant learned of it and killed the pair. The defendant did not take the stand in his own defense. In his closing statement to the jury, the defendant's attorney made a statement, "Ladies and gentlemen, you must consider that there are some things that would provoke any one of us to kill, and there are things that make one unable to control one's actions." The defendant's attorney requested that the judge give the jury instructions on manslaughter and on insanity, and the judge agreed to do so. The judge also issued the following instructions: "INSTRUCTION #6: In order to mitigate an intentional killing to voluntary manslaughter, the burden of proof is on the defendant to establish that adequate provocation existed." "INSTRUCTION #8: Insanity is an affirmative defense and the burden of proof is on the defendant to establish that such insanity existed at the time of the killing." The jury found the defendant guilty of murder, and he appealed. He asserts that the jury instructions violated his rights under the federal Constitution. How should the appeals court rule? A Reverse the defendant's conviction, because Instruction #6 was improper. B Reverse the defendant's conviction, because Instruction #8 was improper. C Reverse the defendant's conviction, because both Instructions #6 and #8 were improper. D Uphold the defendant's conviction, because neither Instruction #6 nor Instruction #8 was improper.

(A) The court should reverse the defendant's conviction because Instruction #6 requires the defendant to disprove one of the elements of murder. Due process requires in criminal cases that the state prove guilt beyond a reasonable doubt. The prosecution has the burden of proving all of the elements of the crime charged. Thus, if malice aforethought is an element of murder and voluntary manslaughter is distinguished from murder by the existence of adequate provocation, the defendant cannot be required to prove that he committed the homicide in the heat of passion (i.e., with adequate provocation). Such a requirement would impose on the defendant the burden of disproving the element of malice aforethought, because "heat of passion" negates malice. Although the defendant can be given the burden of going forward with some evidence on the provocation issue, once he has done so, the prosecution bears the burden of proving that the killing was not done in the heat of passion. In the case at issue, Instruction #6 requires a defendant to prove that he committed the intentional killing under adequate provocation. At common law, and consequently in the state, malice aforethought is an element of murder. Therefore, this instruction in effect requires the defendant to disprove the element of malice aforethought, thereby relieving the state of its burden of proving all elements of the crime. As discussed above, such an instruction cannot pass constitutional muster. On the other hand, for an affirmative defense such as insanity, it is permissible to impose the burden of proof on the defendant. Thus, Instruction #8 does not affect the state's obligation to prove all elements of the crime, and is permissible under the general principles mentioned above.

Based on recommendations of a state commission studying the effect of pornographic films on violent criminal activity, a state adopted legislation banning films intended for commercial distribution that appealed as a whole to the prurient interest in sex of the average person in the community, portrayed sex in a patently offensive way to citizens of the state, and which a reasonable person in the United States would find had no serious literary, artistic, political, or scientific value. In ruling on a constitutional challenge to the legislation from a film distributor in the state who was convicted of distributing films in violation of the legislation, will the federal court likely find the legislation to be constitutional? A Yes, because it uses a national "reasonable person" standard for determining the social value of the work. B Yes, because it uses a statewide standard rather than a community standard for determining whether the material is patently offensive. C No, because it uses a statewide standard rather than a national standard for determining whether the material is patently offensive. D No, unless the court finds that the legislation is necessary to advance the state's compelling interest in reducing violent criminal activity.

(A) The court will likely find the legislation to be a constitutional regulation of obscenity. Obscenity, which is not protected speech under the First Amendment, is defined by the Supreme Court as a description or depiction of sexual conduct that, taken as a whole, by the average person, applying contemporary community standards, appeals to the prurient interest in sex, portrays sex in a patently offensive way, and—using a national reasonable person standard—does not have serious literary, artistic, political, or scientific value. Thus, the legislation here is constitutional because it uses a reasonable person standard, rather than a community standard, for determining the value of the work. (B) is incorrect because while a statewide standard for determining whether the material is patently offensive is permissible, it is not mandatory. A state may use a "community standard" for making this determination. (C) is incorrect because, again, a statewide standard for determining whether the material is patently offensive is permissible. Only the "social value" element of the obscenity test requires a national standard. (D) is incorrect because the legislation is valid regardless of whether it is necessary to achieve the state's compelling interest in reducing violent crime. Speech that falls within the definition of obscenity is unprotected speech; the government does not need a specific compelling interest to ban it.

A landowner owned a beachfront lot and home in a subdivision occupying several hundred acres near a lake. The recorded subdivision plan grants to each owner in the subdivision an easement to use the private roads therein for personal ingress and egress. Following seismic activity in the area, the level of the lake dropped substantially, exposing a considerable amount of land between the new shoreline and the old beachfront. It was judicially determined that this "new" land belonged to the county, which put portions of it up for sale. The landowner purchased the land extending from her old property line to the new shoreline, and constructed a boat launching ramp on the new property. She then permitted persons who did not own land in the subdivision to drive through her old property to reach the boat launching ramp on her new property, and thus to utilize the lake, for a small fee. The homeowners' association brought suit against the landowner, seeking to enjoin her from using or permitting nonresidents of the subdivision from traveling its streets to reach the boat launching ramp. How should the court rule? A For the homeowners, because the scope of the easement granted to the landowner as an owner in the subdivision does not extend to the use that she is making of the new property. B For the landowner, because she has an express easement over the streets of the subdivision. C For the landowner, because she has an easement by necessity as to the new property over the streets of the subdivision. D For the landowner, because she has an implied easement over the streets of the subdivision benefiting the new property since it abuts her old property.

(A) The express easement for the landowner's old property benefits that property only and cannot be used for the landowner's expanded access to the new property. An easement is a liberty, privilege, or advantage that one may hold in the lands of another. The holder of an easement has the right to use a tract of land (called the servient tenement) for a special purpose; e.g., laying utility lines, or for ingress and egress. An easement can be created, as in this question, by express grant. If the parties to the original creation of the use specifically state the location of the easement, its dimensions, and the special use or limits to such use, the courts will honor this expression of specific intent. Absent specific limitations, it will be assumed that the parties intend that the easement meet both present and future reasonable needs of the dominant tenement. However, a basic change in the nature of the use is not allowed. The landowner's easement by express grant merely allows her to use the private roads in the subdivision for her personal ingress and egress to and from her beachfront property. The use of the easement for access to a new boat launching ramp for which a fee is charged goes beyond the specific language of the grant (and arguably beyond the reasonable needs of the dominant tenement). Therefore, the homeowners will be able to prevent use of the subdivision streets to reach the boat launching ramp.

A man and a woman lived together for many years but never got married. Although the state in which they reside does not recognize common law marriage, it has statutes that prohibit discrimination on the basis of marital status. The man and the woman purchased a large property, taking title as joint tenants. Subsequently, the woman accumulated a $20,000 debt. She was too embarrassed to tell the man but was able to convince a bank to hold a mortgage on the property in exchange for the money. The bank was also willing to accept the woman's signature alone, and the man never learned about the mortgage. Two years later, the woman died without having paid off the mortgage. She left no will, and her only heir at law is her sister. The state in which the property is located is a "lien theory" mortgage state. Who has title to the property? A The man. B The man and the bank. C The man and the sister. D The man, the sister, and the bank.

(A) The man takes sole title to the property under his right of survivorship. A joint tenancy carries the right of survivorship. Thus, when one joint tenant dies, the property is freed of her interest and the surviving joint tenant holds the entire property. Therefore, the man owns the property. (B) is wrong because the bank has no interest. Most states, like the one in this question, regard a mortgage as a lien on title. In these states, a mortgage of the property by one joint tenant does not, by itself, sever a joint tenancy until default and foreclosure proceedings have been completed. The bank's rights were lost when the woman died prior to foreclosure. When the woman died, her interest in the property evaporated, and with it the bank's security interest. On the other hand, in a title theory state, a mortgage is considered to be an actual transfer of title to the property, rather than just a lien on the property. Thus, a mortgage by a joint tenant transfers the legal title of the joint tenant to the mortgagee (the money lender). This action destroys the unity of title and thus severs the joint tenancy.

During a presidential campaign, a candidate's campaign manager secretly engaged in activities that may have violated both state and federal laws. After the candidate was elected President, the FBI investigated the manager's activities as well as whether the President was involved. After the campaign manager was indicted in federal court, but before trial, the President granted a blanket pardon to the campaign manager for "all federal crimes that may have been committed in the past 20 years." Is the pardon valid? A Yes, because the pardon power is an unqualified power (except as to impeachment). B No, because a presidential pardon that interferes with an inquiry into the President's own actions constitutes an obstruction of justice. C No, presidential pardons must relate to specific crimes; the President cannot issue blanket pardons. D No, because a President's pardon power is limited to crimes that allegedly took place while the President is in office.

(A) The pardon is valid. Article II, Section 2 of the United States Constitution grants the President the power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment. This pardon power is not subject to control by Congress, and it includes the power to commute a sentence on any conditions the President chooses (as long as the conditions do not offend some other constitutional provision). (B) is incorrect because even if the action of issuing the pardon amounted to the crime of obstruction of justice (a questionable assumption), the pardon itself would not be invalidated. The power to pardon is a constitutional power, superior to laws found in statutes. (C) is incorrect because the pardon power is not so limited. Blanket pardons are valid. (D) is also incorrect because the pardon power is not so limited. Presidents may pardon offenses that occurred before the President took office.

A man shopping for a leather jacket at a clothing store could not decide between two jackets, so the proprietor, who knew the man and his family well, let him take one of the jackets on approval. No mention was made by the proprietor of the method of payment he expected. The man wore the jacket on a visit to his grandfather, who liked it so much that when the man told him what the jacket cost and that he had taken it on approval, the grandfather said he would buy it for him if he promised to give some of his old clothes to a favorite charity for the poor at Christmastime. The man wholeheartedly agreed to donate the clothes to the charity at Christmas. Very pleased, the grandfather called the shop and told the proprietor to send the bill for the jacket to him, which he did. Before the bill was paid and before the Christmas season arrived, the grandfather fell ill and died. The grandfather's executor has refused to pay the bill, and the man has not yet given any old clothing to the charity. Will the proprietor be able to recover the price of the jacket from the estate? A Yes, because the proprietor was the intended beneficiary of the promise between the man and his grandfather. B Yes, because the man has no duty to give the clothing to the charity. C No, because the grandfather's implied promise to pay the proprietor arising from the phone call is unenforceable. D No, because a condition has not yet occurred.

(A) The proprietor can recover the cost of the jacket from the grandfather's estate because the proprietor is an intended third-party beneficiary and his right to enforce the contract has vested. The rights of an intended third-party beneficiary vest when the beneficiary (i) manifests assent to the promise in a manner invited or requested by the parties; (ii) brings suit to enforce the promise; or (iii) materially changes his position in justifiable reliance on the promise. Here, the proprietor qualifies as an intended beneficiary of the agreement between the man and his grandfather because the proprietor was expressly designated in the contract, he was to receive performance directly from the grandfather, and he stood in an existing contractual relationship with the man that required the man to either pay for the jacket or return it, making it likely that the young man's purpose in making the arrangement with his grandfather was to satisfy the obligation to the proprietor. The proprietor can enforce the contract because his rights vested when he sent the bill to the grandfather at the grandfather's request. Thus, the proprietor will prevail against the grandfather's estate. (D) is wrong because the man's giving the clothes to the charity is not a condition that must be fulfilled before the grandfather's estate must pay. The grandfather promised to pay for the jacket if the man promised to donate the clothes; i.e., the consideration for the grandfather's promise was the man's promise, not his actually donating the clothes. As soon as the man made the promise, the grandfather's duty to pay became absolute. (If the man does not donate the clothes, he will be in breach of his contract with his grandfather, but the grandfather's performance was not conditioned on the man's donating the clothes.)

If more than _______ months' imprisonment is authorized, the offense is considered "serious" for determining whether a defendant has a constitutional right to a jury trial. A nine B six C three D twelve

(B) An offense is considered serious, making a jury trial a constitutional right, when more than six months' imprisonment is authorized.

After picking up a load of hazardous chemical waste, a truck driver for a waste management company set out on the road to his next stop. However, he had failed to secure the latch on the back panel of the truck. Consequently, the panel opened while the truck was on the road, and a metal canister full of chemical waste fell onto the road. A car struck the canister, causing the car to veer off the road and injure the driver. The driver filed suit against the company for his injuries. The jurisdiction in which the above events took place has adopted a rule of partial comparative negligence. At trial, the driver of the car admitted that he had momentarily taken his eyes off the road to look at his speedometer. When he had looked up again, the canister was there and he could not stop in time. The jury found that the company, through its truck driver, had acted willfully and wantonly and was 90% at fault, while the driver of the car was 10% at fault. The driver filed a motion for judgment notwithstanding the verdict, seeking recovery for 100% of his damages. If the judge grants the motion, what is the most likely reason? A A plaintiff's comparative negligence is not taken into account in cases of willful and wanton conduct by the defendant. B A state ordinance mandating motorists to stay within the posted speed limit requires as a matter of law an occasional glance at the speedometer. C The company was more than 50% at fault. D The company was engaged in an abnormally dangerous activity.

(B) If the driver was effectively required by statute to take an occasional quick look at his speedometer to make sure that he was complying with appropriate speed limits, then his momentary glance at the speedometer in the instant case would, as a matter of law, not constitute negligent conduct. Because this is a matter of law, the judge would be authorized to correct this aspect of the jury's verdict. If the driver is thus found to be not negligent in this matter, his recovery will not be reduced. (A) is incorrect because in most states that have adopted comparative negligence, the plaintiff's negligence will be considered even in cases where the defendant has acted willfully and wantonly. (C) is incorrect because the fact that the defendant is more than 50% at fault does not mean that the plaintiff is entitled to receive 100% of his damages from the defendant in a partial comparative negligence jurisdiction. It only means that the plaintiff's recovery is not totally defeated. (D) is incorrect because, although the transportation of chemical waste would probably be considered an abnormally dangerous activity, liability for conducting an abnormally dangerous activity attaches only if the harm results from the kind of danger to be anticipated from such activity; i.e., the injury must flow from the normally dangerous propensity of the activity. The canister falling from the truck is not the "normally dangerous propensity" of transporting chemical waste.

Jeopardy attaches in a jury trial when: A Opening statements begin B The jury is empaneled and sworn C The first witness is sworn D The judge delivers jury instructions

(B) Jeopardy attaches in a jury trial when the jury is empaneled and sworn. Under the Fifth Amendment right to be free of double jeopardy, a defendant may not be retried for the same offense once jeopardy has attached. Jeopardy does not attach in a jury trial when the first witness is sworn. This is when jeopardy attaches in a bench trial, not in a jury trial. By the time opening statements begin or the judge delivers jury instructions, jeopardy has already attached.

A plaintiff filed a civil action based on negligence against a defendant in federal district court, alleging that the defendant negligently ran a red light at an intersection and collided with the plaintiff's vehicle, causing the plaintiff's injuries. A week after the close of discovery, the plaintiff filed a motion for summary judgment on the issue of whether the defendant was negligent. With the motion, the plaintiff filed (i) his own sworn affidavit, which stated that the traffic signal was green as he entered the intersection, (ii) an affidavit of a witness who was driving the car behind him, which stated that the witness saw the entire incident and that the plaintiff's traffic signal was green as he approached and entered the intersection; and (iii) an affidavit of another witness, which stated that she saw the entire incident and that the defendant's signal had been red for several seconds before the defendant entered the intersection and was still red when the defendant entered the intersection. In response to the motion, the defendant filed her own affidavit, which stated that her traffic signal was green when she entered the intersection. She also filed the sworn deposition transcript of a pedestrian on the scene, in which the pedestrian said that, although he was intoxicated, he saw the entire accident and that the defendant's traffic signal was green as the defendant approached and entered the intersection. How should the court rule on the plaintiff's motion for summary judgment? A Deny the motion, because the plaintiff cannot obtain summary judgment on issues on which he has the burden of proof. B Deny the motion, because both parties have come forward with evidence from which a jury could find for either party if the jury believes that party's evidence. C Grant the motion, because valid reasons exist to question the credibility of the evidence that the defendant presented. D Grant the motion, because the evidence presented by the plaintiff is substantially more persuasive than the evidence presented by the defendant.

(B) The court should deny the plaintiff's motion. Summary judgment may be granted if, from the pleadings, affidavits, and discovery materials, it appears that there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. The court may not decide disputed fact issues on a motion for summary judgment; if there is a genuinely disputed material fact (meaning a dispute backed by evidence on both sides of the issue), the case must go to trial. Here, although the plaintiff's case may seem stronger, the defendant has presented some evidence showing that she was not negligent. Thus, the case must proceed to trial. (C) and (D) are incorrect because, in a motion for summary judgment, the credibility of the witnesses and the strength of the evidence is not weighed.

A father executed a deed to his art gallery "to my daughter for her life, and on my daughter's death to her children; provided, however, that if my daughter stops painting, to my brother." The daughter has two children and is still painting. At the time of the grant, what is the best description of the interest of the daughter's two children? A A contingent remainder. B A vested remainder subject to open and to total divestment. C A vested remainder subject to open. D An executory interest.

(B) The daughter's two children have a vested remainder subject to open and subject to complete divestment. A remainder is a future interest created in a transferee that is capable of taking in possession on the natural termination of the preceding estate. A remainder is vested if the beneficiaries are ascertainable and their taking in possession is not subject to a condition precedent. A vested remainder created in a class of persons that is certain to take but is subject to diminution by reason of others becoming entitled to take is a vested remainder subject to open. Vested remainders may be subject to total divestment if possession is subject to being defeated by the happening of a condition subsequent. Here, the daughter's two children have a remainder because, on the expiration of the daughter's life estate, they will be entitled to possession of the property. The remainder is not subject to a condition precedent and the beneficiaries are in existence and ascertained, so the remainder is vested, not contingent. The remainder is subject to open because the daughter may have more children. Finally, the remainder is subject to total divestment because the daughter's children's right to possession is subject to being defeated by the daughter's ceasing to paint. (A) is wrong because the remainder is vested, not contingent; i.e., it is not subject to a condition precedent, and the beneficiaries are ascertainable.

A defendant is on trial for manslaughter after he hit a victim in a bar, causing the victim to fall and hit his head on the marble bar top. The defendant claims that he hit the victim in self-defense after the victim lunged at him with a knife. During the prosecution's case, a witness testifies that she heard the victim's friend shout at the defendant, "You just killed a helpless man!" A defense witness is called to testify that he was there and does not remember hearing the victim's friend say anything. Should the defense witness's testimony be admitted? A No, it is irrelevant to any issue in the case. B Yes, it is proper impeachment of the prosecution's witness. C No, it is improper impeachment of the prosecution's witness because it relates to a collateral matter. D No, it is improper impeachment because it does not positively controvert the prosecution witness's testimony, as the defense witness merely says he does not remember.

(B) The defense witness's testimony should be admitted as proper impeachment of the prosecution's witness. Impeachment is the casting of an adverse reflection on the veracity of a witness. A witness may be impeached by either cross-examination or extrinsic evidence, such as by putting other witnesses on the stand who contradict the witness's testimony. Here, the defense is using the testimony of its witness to impeach the prosecution witness's testimony as to what the victim's friend said. This is proper.

Two friends entered a bar looking to get money to pay off a loan shark, but with no plan how to do so. They struck up conversations with two women. The first friend left the bar, having induced one of the women to return home with him. Once in his house, the first friend told the woman that she would not be allowed to leave unless she gave him all of her money. Fearing for her safety, the woman gave him all of the cash she had in her possession. Meanwhile, the second friend remaining at the bar noticed that the other woman left her credit card on the counter. When the woman looked away, the friend picked up the credit card and put it into his pocket. Shortly thereafter, the woman realized her card was gone and accused the man of taking it. The man pretended to be insulted, slapped the victim, and went off with the credit card in his pocket. Which of the two friends can be convicted for common law robbery? A Both can be convicted. B The first friend can be convicted, but the second cannot be convicted. C The second friend can be convicted, but the first cannot be convicted. D Neither of the two friends can be convicted of robbery.

(B) The first friend can be convicted of common law robbery, but the second cannot be convicted. Robbery is the taking and carrying away of the personal property of another from the other's person or presence by force or intimidation. In the instant case, the first friend committed a robbery when he threatened the woman and told her that she could not leave without giving him all of her money. The only issue would be whether the asportation element is satisfied. However, the asportation element is satisfied by any slight moving, and it is likely that the first friend moved the money at some point during the robbery. Thus, a jury could find the first friend guilty of robbery. In the case of the second friend, however, a conviction for robbery is unlikely. Although a close call, the taking or retention of the property was not by force or intimidation in the second case. The crime against the property was already completed when the man slapped the victim. Furthermore, the slap was not to prevent the woman from physically taking the credit card back; rather, it was a ruse used to deflect the accusation that the second friend took the credit card. Thus, (A) is wrong, and this provides a second reason why (C) is incorrect.

A statute in the jurisdiction, which was enacted with the express purpose of preventing public employees from taking advantage of the status of illegal aliens, made it a felony to accept money or other benefits in exchange for issuing a state identification card. During an undercover investigation, an illegal alien was recorded offering $500 to a clerk in exchange for issuance of a card. The clerk agreed to the deal and later that day exchanged the card for the money, after which both parties were arrested. In a jurisdiction following the common law approach to conspiracy, which of the following statements is correct? A The clerk can be convicted of violating the statute and conspiracy to violate the statute, and the illegal alien can be convicted of no crime. B The clerk can be convicted only of violating the statute, and the illegal alien can be convicted of no crime. C The clerk can be convicted only of violating the statute, and the illegal alien can be convicted as an accomplice to violation of the statute. D The clerk can be convicted of violating the statute and conspiracy to violate the statute, and the illegal alien can be convicted of conspiracy to violate the statute.

(B) The illegal alien cannot be convicted of a crime under the statute because it was enacted for his protection, and the clerk cannot be convicted of conspiracy under the statute because the illegal alien, who would otherwise be liable as an accomplice, is not subject to conviction because of a legislative intent to exempt him. If a statute is intended to protect members of a limited class from exploitation or overbearing, members of that class are presumed to have been intended to be immune from liability, even if they participate in the crime in a manner that would otherwise make them liable. Thus, the illegal alien would not be liable as an accomplice under the statute, making (C) incorrect. The clerk cannot be convicted of conspiracy. One of the implications of the common law requirement that there be at least two guilty parties in a conspiracy arises when the crime involves members of a class protected by the statute. If members of a conspiracy agree to commit an act that violates a statute designed to protect persons within a given class, a person within that class not only cannot be guilty of the crime itself, as discussed above, but also cannot be guilty of a conspiracy to commit the crime. (D) is therefore incorrect. Because the member of the protected class cannot be guilty of conspiracy, if no other guilty party exists, the other member of the agreement cannot be guilty of criminal conspiracy because there were not two guilty parties to the agreement. Thus, because the illegal alien cannot be convicted of conspiracy under the statute, neither can the clerk. (A) is therefore incorrect and (B) is correct.

A landlord owned a prestigious downtown office building. A law firm leased the entire building from the landlord for a term of 20 years. The lease included a provision that taxes on the building would be paid by "the lessee, his successors, and assigns." The law firm occupied the building and paid the rent and taxes for eight years. At the end of the eight-year period, the law firm assigned the balance of the lease to an accounting firm and vacated the premises. The assignment was written, but there was no provision concerning the accounting firm's assumption of the duties under the lease. The accounting firm occupied the building and paid the rent and taxes for five years. At the end of the five-year period, the accounting firm subleased the building for five years to an investment company and vacated the premises. The sublease was written, but there was no provision concerning the investment company's assumption of the duties under the lease. The investment company now occupies the building and has paid the rent but not the taxes. The landlord has sued all three (i.e., the law firm, the accounting firm, and the investment company) for failure to pay the taxes. The landlord should prevail against whom? A The law firm only. B The law firm and the accounting firm, but not the investment company. C The accounting firm and the investment company, but not the law firm. D The law firm, the accounting firm, and the investment company.

(B) The law firm and the accounting firm are liable. After an assignment, the original tenant is no longer in privity of estate with the landlord. However, a tenant may still be held liable on its original contractual obligations to the landlord on privity of contract grounds. Here, the law firm is liable because it made the original deal with the landlord, which included the obligation to pay taxes on the building. The law firm remains in privity of contract with the landlord throughout the term of the lease unless it is otherwise discharged. In an assignment, the assignee stands in the shoes of the original tenant in a direct relationship with the landlord. Each is liable to the other on all covenants in the lease that run with the land, which would include the obligation of the lessee to pay taxes on the property. Here, the accounting firm is liable because as an assignee it is in privity of estate with the landlord. The accounting firm remains in privity of estate until it assigns to someone else. The sublease to the investment company is not an assignment. A sublessee is not personally liable to the landlord for rent or for the performance of any other covenants made by the original lessee in the main lease (unless the covenants are expressly assumed) because the sublessee does not hold the tenant's full estate in the land (so no privity of estate). Here, the investment company is not liable because, as a nonassuming sublessee, it is not in privity of contract or estate with the landlord. Therefore, (B) is the correct choice, and (A), (C), and (D) are wrong.

A man was driving very erratically when he was stopped by state troopers and arrested for drunk driving. He was advised of his constitutional rights and elected to remain silent. At trial for his drunk driving charge, the man testified in his own defense, stating that he had just left his doctor's office and had been administered medication without being told that it would seriously and immediately hamper his coordination. On cross-examination, the prosecutor asked whether the defendant just made up this medication story after the fact to evade legitimate liability for driving while intoxicated and the man said he had not. The prosecutor then asked why the defendant had not told the arresting officer about the medication, and defense counsel objects. The trial court should rule that the question is: A Improper, because to require the defense to inform the prosecution of defendant's testimony prior to trial would be unconstitutional pretrial discovery. B Improper, because use of defendant's post-arrest silence violates his right to due process of law. C Proper, because defendant's silence was not used as direct evidence but only for impeachment on cross-examination. D Proper, because defendant's post-arrest silence is a prior inconsistent statement which is admissible to show recent fabrication.

(B) The question was improper because it effectively comments on the defendant's post-arrest silence and thus violates his right to due process of law. A prosecutor may not comment on the defendant's silence after being arrested and receiving Miranda warnings. The warnings carry an implicit assurance that silence will carry no penalty. Thus, the defendant's invocation of his right to remain silent cannot be used as evidence against him at trial, nor can he be questioned or cross-examined about his decision to remain silent, even if he testifies at trial. Thus, (B) is the correct answer, and (C) is wrong. (Distinguish: If the defendant fails to disclose potential exculpatory evidence to the police after waiving his right to remain silent, he may be cross-examined at trial on that failure in an effort to show that it is a recent fabrication. In this case, however, the defendant invoked his right to remain silent.) (A) is wrong; the question is improper, but not because it would be unconstitutional pretrial discovery. (D) is also wrong. Although statements made without proper Miranda warnings can sometimes be used to impeach, the defendant's silence would not be classified as a prior statement.

A defendant was charged with arson (a felony) of an antique shop. Only one corner of the shop was damaged before the fire was extinguished. Under a plea agreement, the defendant pled guilty and received a suspended sentence. Because the owner of the shop had not yet insured a recently acquired 400-year-old refectory table that was destroyed by the fire, he sued the defendant for damages. At trial, the owner offers the properly authenticated record of the defendant's conviction for arson. Should the record be admitted into evidence? A Yes, as proof of the defendant's character in order to infer liability. B Yes, as proof that the defendant set the fire. C No, because the conviction was not the result of a trial. D No, because it is hearsay not within any exception.

(B) The record of the defendant's conviction should be admitted to prove that the defendant set the fire. The record of the conviction is hearsay; Under the Federal Rules, however, such judgments fall within the hearsay exception for records of felony convictions. Under the Federal Rules, judgments of felony convictions are admissible in both criminal and civil actions to prove any fact essential to the judgment, whether the judgment arose after trial or upon a plea of guilty. [Fed. R. Evid. 803(22)] For purposes of this Rule, a felony is any crime punishable by death or imprisonment in excess of one year. Arson is a felony. Consequently, a properly authenticated copy of the defendant's conviction of this crime is admissible to prove the fact that the fire that destroyed the table was set by the defendant, a fact essential to the judgment of conviction. Note that the actual plea of guilty is also admissible as a statement of a party-opponent This type of judicial admission is not conclusive, and the defendant may explain the circumstances of the plea. The plea, being an admission, is nonhearsay under the Federal Rules.

An environmentalist divided her 25-acre property into 100 quarter-acre residential lots. At the time the environmentalist sold her lots, there was a recycling center about one mile from the western boundary of the development. She included in the deed of all 100 grantees the following provision: "Grantee covenants for herself and her heirs and assigns that all aluminum cans, glass bottles, and grass clippings of Grantee and her heirs and assigns shall be recycled. This covenant runs with the land and shall remain in effect as long as there is a recycling center within five statute miles of the development." A buyer purchased a lot in the development. Her deed, which contained the recycling clause, was duly recorded. Two years later, the buyer decided to give the property to her niece as a gift. The niece's deed to the property contained the recycling covenant, and she too recorded her deed. Shortly after the niece took possession of the house, the recycling center moved its location to a new site about four and a half miles from the development. When the niece put the house up for sale, she said nothing to prospective buyers about recycling. The house was purchased by a veteran who had lost the use of his legs. The veteran's deed did not contain the recycling clause, and he hired a local disposal service to carry away his garbage and a landscaper to maintain the yard. The landscaper bagged the grass clippings and they were removed by the disposal service, which put all the trash and clippings in a landfill. When the veteran's neighbors informed him of his duty to recycle, he told them that he knew nothing of the covenant and that it would be difficult for a person in his physical condition to haul cans, bottles, and clippings to the recycling center. Unfazed, the neighbors filed suit to require the veteran to comply with the covenant or pay damages. The veteran's best defense is which of the following? A The veteran's deed did not contain the covenant. B The covenant does not touch and concern the land. C An intelligent inspection of the neighborhood would raise no inference that the covenant existed. D The veteran's physical condition requires a balancing of hardships by the court.

(B) The veteran's best defense is that the covenant does not clearly "touch and concern" the land. While recycling may benefit the community at large, "touch and concern" involves the relationship between landowners at law. Recycling by the veteran does not directly benefit the other landowners in the use and enjoyment of their land. Thus, (B) is correct. (A) is wrong because even though the veteran's deed does not contain the covenant, he has record notice because the restriction is in his chain of title. (C) is wrong because servitudes implied from a common scheme apply only to negative covenants, and the recycling requirement is an affirmative covenant. Thus, this defense does not go to the point. (D) is wrong because it goes only to issues in equity. The suit includes a claim for damages at law. In any case, balancing of hardships is not generally applied in such cases (although some courts might elect to do so).

While at a party, the defendant ran into an acquaintance. The acquaintance proceeded to ridicule the defendant about his looks. After an hour of verbal abuse by the acquaintance, the defendant suddenly took a champagne bottle that was on a nearby table and struck the acquaintance over the head, killing him instantly. At his arrest, the defendant told the police that voices inside his head told him to shut the acquaintance up, permanently. The defendant was tried in a jurisdiction that follows the Model Penal Code test for insanity. At trial, the defendant's lawyer introduced psychiatric testimony indicating that the defendant suffered from a mental illness. Which of the following, if proved by the defense, would most likely relieve the defendant of criminal responsibility? A The defendant's actions were a product of his mental illness. B The defendant could not appreciate the criminality of killing the acquaintance, or he could not conform his conduct to the requirements of the law. C The defendant did not know that killing the acquaintance was wrong, or he could not understand the nature and quality of his actions. D The defendant was unable to control himself or conform his conduct to the law.

(B) This choice states the Model Penal Code test. Pursuant to the Model Penal Code, a defendant is entitled to acquittal if he suffered from a mental disease or defect and as a result lacked substantial capacity to either: (i) appreciate the criminality of his conduct; or (ii) conform his conduct to the requirements of law. (A) is wrong because it would be helpful only if the jurisdiction followed the Durham insanity test, pursuant to which a defendant is entitled to acquittal if his crime was the product of mental disease or defect. (C) is wrong because it presents a valid defense under the M'Naghten rule, which provides for acquittal if a disease of the mind caused a defect of reason, such that the defendant lacked the ability at the time of his actions to either: (i) know the wrongfulness of his actions; or (ii) understand the nature and quality of his actions. (D) is wrong because it presents the irresistible impulse test, which provides for acquittal if, because of mental illness, the defendant was unable to control his actions or to conform his conduct to the law. Note that the Model Penal Code test combines the M'Naghten and irresistible impulse tests. Thus, choices (C) and (D) contain elements of the Model Penal Code test, but are not as good as (B) because the question asks for the set of facts that gives the defendant the greatest likelihood of being relieved of criminal liability. Therefore, (B), which sets forth the complete test used in the jurisdiction, is the best choice.

Which of the following statements regarding speedy trials is correct? A Delays caused by counsel assigned by the court to the defendant should ordinarily be attributed to the state. B One factor in determining whether a defendant's right to a speedy trial was violated is whether the defendant asserted his right. C The remedy for a violation of the constitutional right to a speedy trial is dismissal without prejudice. D A defendant is entitled to speedy trial relief for the period between the dismissal of charges and later refiling.

(B) Whether a defendant asserted his right is one factor in determining whether the defendant's right to a speedy trial was violated. The determination is made by an evaluation of the totality of the circumstances, and the following factors should be considered: (i) length of the delay, (ii) reason for the delay, (iii) whether the defendant asserted his right, and (iv) prejudice to the defendant. The remedy for a violation of the constitutional right to a speedy trial is dismissal with prejudice. Delays caused by counsel assigned by the court to the defendant should ordinarily be attributed to the defendant and NOT to the state. A defendant is NOT entitled to speedy trial relief for the period between the dismissal of charges and later refiling

A credit card company filed a civil action against a consumer in federal district court seeking to recover the unpaid balance on the consumer's account. The credit card company properly served process on the consumer, but the consumer failed to file or serve a timely answer to the complaint. The clerk of court on motion of the credit card company made an entry of default, but default judgment has not been entered. On which grounds may the court set aside the entry of default? A For the same limited grounds for which any court judgment may be set aside. B Only if the court finds that the consumer could not have filed and served a timely answer despite using reasonable diligence. C If the consumer demonstrates that there was good cause for his failure to file and serve a timely answer and that he has a viable defense. D On any grounds that the court, in its discretion, finds just.

(C) An entry of default may be set aside for "good cause shown." Although not specifically required by the Federal Rules, a majority of courts also will require some showing of a meritorious defense. (A) is incorrect because the grounds are not limited to the grounds required for setting aside regular court judgments. (B) is incorrect because that answer is also too limiting on the concept of "good cause shown." For example, a default might result from an honest mistake of the attorney, but the entry of default may nonetheless be set aside if the attorney acts promptly to correct the mistake. (D) is incorrect because a majority of courts will also require a showing of a meritorious defense.

The owner of a valuable painting hired professional movers to transport it to an auction house when she decided to sell it. As the movers were carrying it to their van, a window air conditioner that a tenant had been trying to install fell out of his second floor window and crashed through the painting and onto the ground. The owner had been watching from her apartment across the street and saw her painting destroyed. She became extremely upset and needed medical treatment for shock. If the owner brings a claim for negligent infliction of emotional distress against the tenant, is she likely to recover? A Yes, because she suffered physical symptoms from her distress. B Yes, because she was a foreseeable plaintiff. C No, because she was not within the zone of danger. D No, because she suffered no physical impact.

(C) Because the owner was across the street at the time of impact, she was not within the zone of danger, thus precluding her recovery for negligent infliction of emotional distress. A defendant breaches a duty to avoid negligent infliction of emotional distress when he creates a foreseeable risk of physical injury to the plaintiff through causing a threat of physical impact that leads to emotional distress. Damages generally are recoverable only if the defendant's conduct causes some physical injury, rather than purely emotional distress (although a severe shock to the nervous system that causes physical symptoms is sufficient). If plaintiff's distress is caused by threat of physical impact to her, she must have been within the zone of danger. Here, the owner witnessed the air conditioner striking her painting from across the street. This vantage point placed her outside the zone of danger from the falling air conditioner. Thus, the owner cannot recover for negligent infliction of emotional distress.

A defendant was convicted after a jury trial of violation of federal statutes prohibiting the sale of automatic weapons to foreign nationals. It was established at trial that the defendant had purchased a number of stolen United States Army heavy machine guns and attempted to ship them abroad. The trial court expressly based its imposition of the maximum possible sentence for the conviction on the defendant's refusal to reveal the names of the persons from whom he purchased the stolen weapons. His counsel argues that this consideration is reversible error. If the defendant appeals the sentence imposed, what should the appeals court do? A Reverse the trial court, because the consideration of the defendant's silence violates his Fifth Amendment privilege against self-incrimination. B Reverse the trial court, because the consideration of collateral circumstances in sentencing violates his due process rights. C Affirm the trial court, because the right to remain silent granted by the Fifth Amendment does not include the right to protect others from incrimination. D Affirm the trial court, because citizens must report violations of the criminal statutes.

(C) The appeals court should affirm the trial court because the right to remain silent does not include the right to protect others from incrimination. The defendant was not privileged to refuse revealing the names of the stolen weapon sellers. The United States Supreme Court held, in Roberts v. United States (1980), that a defendant's refusal to cooperate with an investigation of the criminal conspiracy of which he was a member may properly be considered in imposing sentence. This is because the Fifth Amendment right to remain silent does not afford a privilege to refuse to incriminate others. (C) is therefore correct and (A) is incorrect. (B) is incorrect because the court's consideration of the defendant's refusal to cooperate does not violate due process. (D) is not an accurate statement of the law.

A defendant visited her doctor to seek treatment for a bullet wound. While he was treating the wound, the doctor asked the defendant how she was shot. The defendant replied that she was struck by a police officer's bullet while running away from a jewelry store she had robbed, but she implored the doctor not to tell this to anyone. The doctor promised that he would not. Although the defendant was never charged by the police, the owner of the jewelry store brought suit against her seeking the value of the stolen goods. The defendant denied robbing the store. At the trial, the owner calls the doctor to testify to the statement made to him by the defendant. The defense attorney objects on the ground that such testimony is barred by the jurisdiction's physician-patient privilege. Should the objection be sustained? A Yes, because the doctor acquired this information while attending the defendant in the course of treatment. B Yes, because the doctor agreed to the defendant's specific request that this information be kept confidential. C No, because the physician-patient privilege is inapplicable to the defendant's statement. D No, because the doctor is the one who is entitled to either claim this privilege or waive it.

(C) The court should overrule the objection because the physician-patient privilege cannot be invoked for information dealing with a nonmedical matter. Under the physician-patient privilege, a physician is foreclosed from divulging in judicial proceedings information that he acquired while attending a patient in a professional capacity, which information was necessary to enable the physician to act in his professional capacity. Information given by a patient that deals with a nonmedical matter is not protected by the privilege. Hence, the defendant's admission that she was shot while running from a jewelry store that she robbed is not barred by the privilege. (A) is incorrect because, although it is true that the doctor acquired the information while attending the defendant in the course of treatment, the privilege is inapplicable because, as discussed above, the statement deals with a nonmedical matter.

A homeowner, a citizen of State A, hired an electrician, a citizen of State B, to fix the wiring in her basement and hired a gas worker, also a citizen of State B, to install a new gas stove in her kitchen. Unfortunately, the home caught fire and burned down while they were both working on their separate jobs. The homeowner sued the gas worker for negligence in federal court in State A, seeking $100,000. The homeowner promptly served the gas worker, and the gas worker timely filed an answer with the court. One month after filing the answer, the gas worker moved to file and serve a third-party complaint against the electrician, alleging that the electrician was the sole cause of the accident. Which of the following arguments is most likely to achieve the electrician's goal of dismissal of the third-party complaint? A The gas worker's motion for leave to file a third-party complaint is untimely and thus should be denied as a matter of law. B The court does not have subject matter jurisdiction over the third-party complaint because the electrician's claim and the gas worker's claim do not arise from a common nucleus of operative fact. C The gas worker's claim against the electrician is not a proper third-party claim. D Dismissing the gas worker's claim will not impede his ability to protect his rights in a separate action.

(C) The electrician's best argument is that the gas worker's claim against the electrician is not a proper third-party claim. Under Rule 14, a defendant may assert a third-party claim against "a nonparty who is or may be liable to it for all or part of the claim against it." In other words, a third-party claim must be a derivative claim; the third-party plaintiff must be seeking indemnification or contribution from the third-party defendant. Here, the gas worker's claim is not that the electrician must indemnify him or that the electrician is a joint tortfeasor who may be jointly liable under principles of contribution. Rather, the gas worker is alleging that he (the gas worker) is not liable and that the electrician is. Because the claim is not derivative, it is not properly asserted as a third-party claim under Rule 14. (A) is incorrect. A defendant may serve a third-party complaint as of right within 14 days of serving his original answer. Thereafter, he must make a motion to serve the complaint, and it is within the trial court's discretion whether to grant or deny the motion. Here, it is unlikely that a court would deny a defendant's motion to serve a third-party complaint at such an early stage of the proceeding. (B) is incorrect because both claims arose from a single occurrence: the fire that burned down the homeowner's house. Thus, there would be supplemental jurisdiction for the gas worker's claim because it arises from the same set of facts as the homeowner's claim against the gas worker, which is based on diversity of citizenship. (D) the gas worker's ability to bring a separate action against the electrician is not a compelling reason for dismissing a properly asserted third-party claim

A hockey player who was playing in the final game of the season before a hostile crowd in the opponent's packed stadium had an opportunity to get his team into the playoffs, but he missed a shot into an open net as the horn sounded, ending the game. As the crowd cheered and jeered, the puck bounced back to him and he shot it in anger toward the stands. A fan who had been looking the other way turned back toward the rink just in time to be struck in the face by the puck. He suffered a broken nose and a severe gash under his eye. After the game, the league commissioner fined the player for violating league rules by intentionally directing the puck out of the playing area. If the fan sues the player for battery, will the fan likely prevail? (A) No, because by attending a hockey game, the fan assumed the risk of pucks being shot into the stands. (B) No, because the player did not have the intent to strike the fan with the puck. (C) Yes, because the player knew that it was substantially certain that a fan would be hit by the puck. (D) Yes, because the player violated league rules by intentionally shooting the puck out of the playing area.

(C) The fan will prevail in his battery action because the player had the requisite intent for battery. A prima facie case for battery requires plaintiff to prove (i) an act by defendant that brings about a harmful or offensive contact to the plaintiff's person, (ii) intent on defendant's part to bring about harmful or offensive contact, and (iii) causation. The intent element is satisfied as long as the defendant knew with substantial certainty that the harmful or offensive contact would result. Here, the player's conduct caused a harmful contact to the fan, because the player set into motion the force that caused injury to the fan. His intentionally shooting the puck into the crowded stands is enough to establish that he knew with substantial certainty that the puck would strike a spectator.

A vintner divided his vineyard into two parcels, drawing the boundaries so that the single well that had irrigated the entire vineyard fell on the border of the two properties. The vintner then conveyed the eastern parcel to his friend by a deed that contained the following covenant: If the well located on the boundary of the eastern and western parcels continues to be used for irrigation purposes and becomes in need of repair or replacement, the grantee, his heirs, and assigns and the grantor, his heirs, and assigns each promise to pay one-half of the cost of such repair or replacement. This covenant shall run with the land. The deed from the vintner to the friend was not recorded, and the vintner did not record a copy of the deed with the records for the western parcel. The friend later sold the eastern parcel to a farmer. The farmer's deed did not contain the covenant about the well. After 15 years of use by the owners of both the eastern and western parcels, the well began to fail. The farmer took it upon himself to have the well repaired at a cost of $30,000. About two weeks later, the farmer discovered the deed from the vintner to the friend in some old files. By this time, the western parcel had passed to the vintner's son by inheritance and again to the son's daughter by inheritance from the now-deceased son. The daughter knew nothing of the covenant concerning the well. The farmer presented the daughter with the bill for the well repair with a copy of the vintner/friend deed and a note that said he expected to be reimbursed for $15,000. The daughter refuses to pay, and the farmer sues. The jurisdiction has a 10-year statute of limitations for acquiring property by adverse possession, and the following recording statute: "Any conveyance of an interest in land shall not be valid against any subsequent purchaser for value, without notice thereof, unless the conveyance is recorded." For whom is the court most likely to rule? A The daughter, because the deed from the vintner to the friend was never recorded. B The daughter, because the farmer has acquired the well by adverse possession. C The farmer, because the covenant runs with the land. D The farmer, because he is a bona fide purchaser.

(C) The farmer will most likely prevail in his suit for one-half the cost of the well repairs because the covenant runs with the land. When a covenant runs with the land, subsequent owners of the land may enforce or be burdened by the covenant. If all of the requirements for the burden to run are met, the successor in interest to the burdened estate will be bound by the arrangement as effectively as if he had himself expressly agreed to be bound. To be bound: (i) the parties must have intended that the covenant run with the land; (ii) the original parties must have been in horizontal privity; (iii) the succeeding party must be in vertical privity with the original promisor; (iv) the covenant must touch and concern the land; and (v) generally, the burdened party must have actual or constructive notice of the covenant. Here, the intent is shown by the express language of the covenant, which says that it is intended to run with the land. Even without that language, the use of the words "heirs" and "assigns" would show the intent for the covenant to run. The original parties were in horizontal privity because at the time the vintner entered into the covenant, he and the friend shared an interest in the land independent of the covenant—as grantor and grantee. The daughter is in vertical privity with the vintner because she holds the entire interest in the western parcel held by the vintner. The covenant touches and concerns the land because promises to pay money to be used in a way connected with the land are held to touch and concern the property. Because the daughter was unaware of the covenant, the required notice seems to be missing. While it is generally true that the owner of the burdened land must have notice, it should be remembered that the requirement is a function of the recording statute. (At common law, the covenant was enforceable in an action for damages regardless of notice; this was changed by the recording statutes.) However, because the daughter is a donee (an heir) and not a bona fide purchaser, she is not protected by the recording statute and thus is subject to the covenant even without notice. For that reason, (A) is wrong. (D) is wrong because the farmer's status as a bona fide purchaser has no effect on his ability to enforce the covenant. A successor in interest to the original promisee may enforce the covenant (enjoy the benefit) if there was intent and vertical privity, and the covenant touches and concerns the land. Notice is not required for the benefit to run. Thus, because the above requirements are met here, the farmer may enforce the covenant regardless of his status as a bona fide purchaser. Had the farmer taken the property as a donee, the above analysis would be the same.

A beneficiary has filed a petition in the probate court to contest the validity of a testator's will. The beneficiary contends that when the testator executed the will eight years before, he had a severe mental illness and was incapable of forming a valid testamentary intent. In support of this contention, the beneficiary seeks to offer an affidavit prepared by the testator's former attorney, which states that she was asked to prepare a will for the testator just four months before this will was made. The attorney had refused to do so because it was her opinion that the testator seemed incoherent and paranoid. How should the judge rule on the admissibility of this affidavit? A Admissible. B Inadmissible, as being violative of the attorney-client privilege. C Inadmissible, because it is hearsay not within any exception. D Inadmissible, because it is improper opinion evidence.

(C) The judge should rule this affidavit to be inadmissible hearsay. This affidavit is clearly hearsay, and there is nothing in the facts that shows that it is admissible under any of the exceptions to this rule. Hence, (A) is wrong. (B) is wrong because the observations of the attorney would not be deemed a "communication received from the client." Also, while the attorney-client privilege generally survives the client's death, it does not apply to communications relevant to an issue between parties who are claiming through the same deceased client, such as in the probate proceedings here. (D) is incorrect because a lay person could probably testify to her opinion in this situation since it is rationally based on her own perception, it is helpful to a determination of a fact in issue, and it is not based on scientific, technical, or other specialized knowledge.

A defendant held up a gasoline station. During the robbery, he shot and killed a customer who attempted to apprehend him. The defendant was prosecuted for premeditated murder and convicted. Thereafter, he was indicted for armed robbery of the station. Before the trial, his attorney moved to dismiss the indictment on the ground that further proceedings were unconstitutional because of the defendant's prior conviction. Should the motion to dismiss be granted? A Yes, because once the defendant was convicted on any of the charges arising out of the robbery, the prosecution was constitutionally estopped from proceeding against the defendant on any charge stemming from the same transaction. B Yes, because the Double Jeopardy Clause prohibits a subsequent trial on what is essentially a lesser included offense. C No, because there is no constitutional requirement that all known charges against a defendant be brought in the same prosecution. D No, because estoppel does not apply when a defendant is charged with violating two different statutes.

(C) The motion to dismiss should be denied. For purposes of the Double Jeopardy Clause, two crimes do not constitute the "same offense" if each crime requires proof of an additional element that the other crime does not require, even though some of the same facts may be necessary to prove both crimes. Here, even though the same facts are involved for both crimes, the robbery charge requires proof of a taking by force but not a death, while the murder charge requires proof of a death but not of a taking of property. Thus, (C) is correct and (A) is incorrect. (B) is incorrect because armed robbery is not a lesser included offense of premeditated murder. (D) is incorrect because the prosecution would be estopped if violation of one statute constituted a lesser included offense of the other statute.

A woman purchased a tract of land from a man by warranty deed. Unbeknownst to the woman, the man was not the actual owner of the tract. The woman built a home on the tract and moved into it. Two years later, the actual owner learned of the man's transaction with the woman and prevented the woman from entering the tract from that point forward. This led to a costly court battle. When the woman notified the man and told him that she thought it was his duty to straighten this out, he ignored her. The woman would succeed in a suit for damages against the man for breach of which of the following covenants of title? A The covenant of quiet enjoyment only. B The covenants of seisin, right to convey, quiet enjoyment, warranty, further assurances, and the covenant against encumbrances. C The covenants of seisin, right to convey, quiet enjoyment, warranty, and further assurances. D The covenants of seisin and right to convey only.

(C) The woman would succeed in a suit for damages against the man for breach of the covenants of seisin, right to convey, quiet enjoyment, warranty, and further assurances, but not on the covenant against encumbrances. A general warranty deed gives the grantee six covenants of title: the right to seisin, the right to convey, a covenant against encumbrances, the covenant of quiet enjoyment, the covenant of further assurances, and a general warranty. Under the covenants of quiet enjoyment, warranty, and further assurances, the man promised that (i) the woman would not be disturbed in her possession of the tract; (ii) he would defend the woman's title against lawful claims; and (iii) he would perform whatever acts are necessary to perfect the woman's title. Because the man neither owned the tract of land nor was acting as the actual owner's agent, he breached the covenants of seisin and right to convey at the time of the conveyance to the woman. When the actual owner prevented the woman from re-entering the property, this interfered with the woman's quiet enjoyment, and the man's refusal to "straighten this out" was a breach of the covenant of further assurances. Thus, (C) is the correct answer. There is nothing in the facts to suggest the property is encumbered; thus, the man did not breach the covenant against encumbrances, and (B) is therefore incorrect.

A woman was arrested outside of a house shortly after she had broken in and stolen some jewelry. She was indicted for larceny and later for burglary. She was tried on the larceny indictment and convicted. Thereafter, she was brought to trial on the burglary indictment. Relying on the Double Jeopardy Clause of the Constitution, the woman moves to dismiss the indictment. Should the motion be granted? A Yes, because the Double Jeopardy Clause requires that all offenses arising out of the same transaction be adjudicated in the same trial. B Yes, because the Double Jeopardy Clause allows the imposition of separate sentences for separate offenses occurring during the same criminal episode only if the offenses are tried together. C No, because larceny and burglary are offenses that may constitutionally be tried and punished separately, even if they arise out of the same transaction, because each requires proof of a fact that the other does not. D No, because the only protection double jeopardy affords to a defendant charged with multiple counts is under the doctrine of collateral estoppel.

(C) The woman's motion should be denied because the Double Jeopardy Clause does not prohibit the second prosecution. The Double Jeopardy Clause of the Fifth Amendment provides criminal defendants with the right to be free of double jeopardy for the same offense. However, two crimes do not constitute the same offense if each crime requires proof of an additional element that the other crime does not require, even though some of the same facts may be necessary to prove both crimes. Here, larceny requires a taking and carrying away of the property of another, which burglary does not require, and burglary requires a breaking and entry, which larceny does not require. Hence, they are distinct offenses for purposes of the Double Jeopardy Clause. (A) and (B) are incorrect because the Supreme Court does not use a "same transaction" or "same episode" test suggested by these answer choices; instead, the Blockburger test is used regardless of whether the two offenses were tried together at a single trial or at separate trials. (D) is incorrect because while double jeopardy also protects against inconsistent factual determinations at a subsequent trial, it protects against multiple prosecutions as well, as long as the crime is the "same offense."

A landowner possessed a 40-acre tract of land. He had inherited 30 acres and had possessed the other 10 acres for longer than the statutory period necessary to acquire title by adverse possession from a rancher. The landowner entered into a land sale contract promising to convey the 40 acres to a developer. The contract provided that the landowner would convey marketable title. The developer paid the landowner the purchase price and accepted a deed from him. The developer promptly recorded the deed. The rancher, having learned of the sale, brought a successful action against the developer to quiet title. The developer realized for the first time that there were no covenants for title in his deed. The developer brings an action against the landowner. What is the most likely outcome of the suit? A The developer will win, because the landowner breached the terms of the contract. B The developer will win, because the landowner misrepresented the size of the tract. C The landowner will win, because the terms of the deed control his liability. D The landowner will win, because the developer was negligent in not checking the covenants of title at the time of closing.

(C) The landowner will win because the terms of the deed, not of the contract, control his liability. There is an implied covenant in every land sale contract that at closing the seller will provide the buyer with a title that is "marketable." Marketable title is title reasonably free from doubt, i.e., title that a reasonably prudent buyer would be willing to accept. It need not be a "perfect" title, but the title must be free from questions that might present an unreasonable risk of litigation. Generally, this means an unencumbered fee simple with good record title. Generally, a title acquired by adverse possession is not considered marketable because the purchaser might be later forced to defend in court the facts that gave rise to the adverse possession against the record owner. Here, the marketability requirement did not have to be implied, it was an express term of the contract. Under the doctrine of merger, the contract merges into the deed, and the terms of the contract are meaningless. Even though the contract specified a "good and marketable title," it is the deed that controls, and the deed contained no covenants of title. A deed does not incorporate the title terms of a contract. Thus, (A) is wrong. (B) is wrong; it is not supported by the facts. (D) is wrong because the developer's negligence is irrelevant.

A retailer entered into an oral contract with an office supply wholesaler to buy 100 file boxes for an upcoming back to school sale at the retailer's store. The wholesaler agreed to deliver the file boxes in two weeks at a cost of $4 per file box. A week later, the retailer phoned the wholesaler and asked if she could increase her order to 200 file boxes. The wholesaler agreed. The wholesaler delivered the 200 file boxes as promised, but the retailer accepted only 150 upon discovering that she lacked storage space for all 200. May the wholesaler recover damages with respect to the 50 file boxes that were not accepted? (A) Yes, because the retailer accepted $600 worth of file boxes. (B) Yes, because the modification was for less than $500. (C) No, because the contract as modified was for $800. (D) No, because the wholesaler is a merchant with respect to file boxes.

(C) The wholesaler may not recover damages. Under the UCC Statute of Frauds, a contract for the sale of goods for $500 or more is unenforceable unless evidenced by a writing signed by the party sought to be held liable. The original contract was for $400 and, thus, was not within the Statute. Whether a modification must be in writing to be enforceable depends on whether the entire contract price as modified is within the Statute. Here, the retailer and the wholesaler modified their original contract to 200 file boxes, bringing the total price to $800. Thus, the modification was unenforceable under the Statute of Frauds, and the wholesaler cannot collect damages with respect to the 50 unaccepted file boxes. (B) is incorrect because, as noted above, when determining whether a contract for the sale of goods is enforceable, we look at the whole contract price as modified; the price of the modification itself does not matter. (D) is incorrect because the fact that the wholesaler is a merchant with respect to the goods being sold (file boxes) has no bearing on the enforceability of the contract here.

The defendant and an accomplice were on trial together for burglary. Both had given confessions implicating themselves and their accomplice. At trial, the defendant maintained that his confession had been obtained through improper coercion by the police. For the purpose of countering the claim of coercion, the prosecution seeks to place the accomplice's confession into evidence. After objection by the defendant's counsel, the judge agrees to issue a limiting instruction to the jury that the confession is to be considered only with regard to the question of whether the defendant's confession was coerced. May the accomplice's confession be admitted under that condition? A No, because admission of the confession violates the defendant's right of confrontation. B No, unless the accomplice takes the stand and subjects himself to cross-examination regarding the confession. C Yes, as long as all portions of the confession referring to the defendant can be eliminated. D Yes, because the judge's instruction limits consideration of the confession only to the issue of coercion.

(D) The confession is admissible with the judge's limiting instruction. Where two persons are tried together and one has given a confession implicating the other, the general rule is that the Sixth Amendment right to confront adverse witnesses prohibits the use of such a statement. This problem arises because of the inability of the nonconfessing defendant to compel the confessing co-defendant to take the stand for cross-examination at their joint trial. As exceptions to the general rule, the statement may be admitted if: (i) all portions of the statement referring to the other defendant can be eliminated (so that there is no indication of that defendant's involvement); (ii) the confessing defendant takes the stand and subjects himself to cross-examination with respect to the truth or falsity of what the statement asserts; or (iii) the confession of the nontestifying co-defendant is being used to rebut the defendant's claim that his confession was obtained coercively, in which case the jury must be instructed as to the purpose of the admission. (B) and (C) are incorrect because neither of those conditions is necessary for the confession to be admitted as long as the judge issues a limiting instruction, as discussed above.

A homeowner entered into a written agreement with a contractor whereby the contractor agreed to completely remodel the homeowner's bathroom "to her specifications" at a cost of $10,000. The homeowner's specifications were highly detailed and required custom-made fixtures that would not be usable in other bathroom remodeling jobs. The contractor ordered the custom-made fixtures and paid $4,000 for them when they were delivered to his place of business. Figuring up the cost of the fixtures and labor, the contractor estimated that he would make a total profit of $2,000 on the job after payment for materials and workers. Before the contractor began work on the project, but after he had paid for the fixtures, the homeowner told the contractor that she had had a change of heart and would probably be selling the house the following year, and so would not need a custom bathroom. The contractor made no attempt to sell the fixtures to another contractor and filed suit against the homeowner for damages. What is the contractor likely to recover? A Nothing, because he failed to mitigate damages. B His expectation damages of $2,000. C $4,000, the cost of materials as restitution. D $2,000 as expectation damages, plus $4,000 in reliance damages.

(D) The contractor can recover $2,000 as lost profits plus the $4,000 in costs he incurred before the homeowner breached the contract. The purpose of a damages remedy is to give compensation for the breach; i.e., to put the nonbreaching party where he would have been had the promise been performed. In most cases, the plaintiff's standard measure of damages will be based solely on an "expectation" measure, i.e., sufficient damages for him to buy a substitute performance. A reliance measure of damages, on the other hand, awards the plaintiff the cost of his performance, i.e., his expenditures in performing his duties under the contract. In certain situations, an award of compensatory damages will contain both an expectation and a reliance component. In a construction contract, if the owner breaches the contract after the builder has already begun his performance, the builder will be entitled to any profit he would have derived from the contract plus any costs he has incurred to date. The contractor has begun performance by ordering and purchasing the custom-made fixtures at a cost of $4,000. Because they are usable only for the homeowner's purposes, their cost, which is treated just like any other expenditure of labor and material in a partially completed construction contract, can be recovered as reliance damages. The other element of his recovery is the $2,000 profit that he would have derived from the contract—his expectation damages. His total recovery will therefore be $6,000.

A plaintiff filed a negligence action against a defendant in federal district court after a two-car accident. The plaintiff's attorney created a list of everyone he could identify who observed the accident or otherwise had information relevant to the accident. The list includes one eyewitness whom the plaintiff's attorney was able to identify only through the expenditure of several thousand dollars in investigation costs. The defendant served the following interrogatory on the plaintiff: "Please state the name of each person of whom you are aware who may know or have information relevant to this action." Must the plaintiff provide the defendant with the names of all of the people on the plaintiff's attorney's list? A No, because the names on the list are protected from discovery under the work product doctrine. B No as to the name of the eyewitness found through the plaintiff's investigation efforts, but yes as to the other names on the list. C Yes, because, while the names are subject to qualified immunity from discovery under the work product doctrine, the defendant will be able to show sufficient need to obtain a court order requiring the names' disclosure. D Yes, because the names are relevant to the claims and defenses of the parties, and they do not constitute work product.

(D) The plaintiff must provide the defendant with the names of the people on the plaintiff's attorney's list. In general, discovery may be had of any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, including the identity of individuals with knowledge of any discoverable matter. Because the Federal Rules of Civil Procedure state that the identities of people with knowledge of discoverable matters are discoverable, the plaintiff's attorney's list is not considered work product. Thus, (A) and (C) are incorrect. (B) is incorrect because the identity of the eyewitness is discoverable regardless of the extent of the plaintiff's investigation efforts.

A landowner validly conveyed a small office building to the Green Party "as long as they use it for operating quarters until the next presidential election." After the next presidential election, which was in three years, the building would go to a private organization that monitors and prepares comprehensive listings of gas prices throughout the country. A year after the conveyance, the landowner died, validly devising all of her property to her son. Although this jurisdiction is a common law jurisdiction with respect to all real property considerations, the state's probate laws provide that future interests or estates in real property may be passed by will or descent in the same manner as present or possessory interests. Last week, the Green Party and the gas monitoring organization joined together to sell the office building in fee simple absolute to a developer. The son filed suit to prevent the sale of the property to the developer. In this action, who should prevail? A The Green Party and the gas monitoring organization, because together they own a fee simple absolute in the building. B The Green Party and the gas monitoring organization, because the attempted restrictions on the use of the property violate the Rule Against Perpetuities. C The Green Party and the gas monitoring organization, because the deed restriction was an unlawful restraint on alienation. D The son, because he did not sign the contract of sale.

(D) The son may enjoin the sale because he has an interest in the property. A fee simple determinable is an estate that automatically terminates on the happening of a stated event. The Green Party's interest in the office building is a fee simple determinable because it lasts as long as the Party is using the building for operating quarters. However, the grant does not provide for the contingency of the Green Party ceasing to use the building as operating quarters before the next presidential election. This gap would be filled by a possibility of reverter retained by the landowner. Because the landowner passed that interest to her son in her will, there can be no contract to sell the property without his signature. Note: Although the gas monitoring organization appears to have an indefeasibly vested remainder (i.e., it is created in an ascertained company, is certain to become possessory, and is not subject to being defeated, divested, or diminished in size), its interest is not capable of taking on the natural termination of the preceding estate and so is characterized as a springing executory interest. (A) is wrong because the son also has an interest in the land. (B) is wrong because the interest in the office building will pass to the gas monitoring organization, if at all, within 21 years. (C) is wrong because the Green Party is not prohibited from transferring any interest; it could pass a defeasible fee.

Shortly after a professor at a state university completed her second year of teaching, she was informed that her contract was not being renewed for the following year. By state law, a professor does not acquire tenure until after she has completed three consecutive years of teaching. Before acquiring tenure, state law does not require either a statement of reasons or a hearing when a professor's contract is not renewed, and the university administration refused to give either to the professor. Which of the following, if established, sets forth the strongest constitutional argument that the professor could make to compel the university to furnish her a statement of reasons for the failure to rehire her and an opportunity for the hearing? A She purchased a home in anticipation of renewal of her contract, because most professors who had taught two years were rehired. B She had been voted the most popular professor on campus in each of her first two years of teaching. C She was the only teacher at the university whose contract was not renewed that year. D There is evidence to indicate that the decision not to rehire the professor was not based on her ability to teach.

(D) The strongest argument the professor could make is that the decision was not based on her ability to teach. The professor is an at-will employee, and under most circumstances may be discharged "for any reason or no reason at all." Thus, normally, evidence regarding the motives for dismissal is irrelevant. The question here, however, is what the strongest argument is that the professor could make, and (D) creates at least an inference that an impermissible motive might be present (gender, free speech, etc.). (A) is a weaker answer because the professor has no property interest in continued employment; a mere expectation of continued employment is not enough, even when coupled with reliance (her buying a house). There must be a legitimate claim or entitlement—created by a contract or clear policy—that employment can be terminated only for cause. The bases alleged in (B) are arguably irrelevant; the professor's popularity may or may not have anything to do with her ability, and even if it does, she remains an at-will employee. (C) might under some circumstances offer an argument, but there could be any number of valid explanations for keeping others and letting a particular professor go, including budget constraints, subject needs, etc. (D) is, accordingly, the strongest of the possibilities.

A man and a woman were in a two-car traffic accident. Immediately after the accident, the man was treated by a physician at a nearby hospital's emergency room. The man later filed a negligence action against the woman in federal district court, seeking compensatory damages. The woman now seeks discovery regarding the emergency room physician's observations, opinions, and treatment of the man. Is the woman entitled to discovery regarding that information? A No, because such discovery is not relevant to the claim or defense of a party. B No, because the woman is not entitled to obtain discovery from persons who are not parties to the action. C Yes as to the physician's observation and treatment, but the physician's opinions are discoverable only if the man intends to call the physician as an expert witness at trial. D Yes, because the physician observed and treated the man and developed opinions about the man's injuries for purposes other than litigation or trial.

(D) The woman is entitled to discovery regarding the physician's observations, opinions, and treatment of the man because the physician developed opinions about the man's injuries for purposes other than litigation or trial. (A) is incorrect because the physician's observations, opinions, and treatment of the man are relevant to the man's claims and the driver's defenses. (B) is incorrect because parties may obtain discovery from individuals with knowledge of any discoverable matter, not just parties to the action. (C) is incorrect because it is not applicable to the situation here, where the physician was not retained in anticipation of litigation or trial.

An environmental group, wishing to stop the issuance by a federal agency of a mining permit to a coal company, commences an action in federal court against the federal agency, seeking, among other things, a permanent injunction barring the issuance of the permit to the coal company. If the coal company seeks to join the litigation as a matter of right, must the federal court grant the motion? A No, because intervention of outside parties is a matter within the sole discretion of the judge. B No, unless the coal company has been given an unconditional right to intervene by a federal statute. C Yes, because the coal company has an interest in getting the mining permit. D Yes, unless the court concludes that the coal company's interest in getting the permit is adequately protected by the federal agency.

(D) Under Rule 24, a nonparty may intervene in an action as a matter of right in two situations. First, a nonparty may intervene when it has an unconditional right to do so by a federal statute. Second, a nonparty may intervene if (i) it has an interest in the property or transaction the is the subject matter of the action; (ii) the disposition or resolution of the action may as a practical matter impair the nonparty's ability to protect its interest; and (iii) the nonparty's interest is not adequately protected by an existing party in the action. Here, although no federal statute gives the coal company the right to intervene, it does have an interest at stake in the action—its interest in getting the mining permit issued to it—and its ability to obtain the permit will as a practical matter be impaired if the environmental group succeeds in getting an injunction against its issuance. Thus, the coal company should be allowed to intervene unless the court concludes that the federal agency adequately represents the coal company's interest.

In a criminal battery case brought against the defendant, the prosecutor asked the court to take judicial notice of the fact that a car driven from Chicago to Detroit has to cross state lines. The defense attorney raised no objection, and the judge declared that she was taking judicial notice of the fact as requested by the prosecution. What is the effect of such judicial notice? (A) To raise an irrebuttable presumption. (B) To satisfy the prosecutor's burden of persuasion on that issue. (C) To shift the burden of persuasion on that issue to the defendant. (D) That the judge should instruct the jury that it may, but is not required to, accept the noticed fact as conclusively proven.

(D) The effect of the judge's noticing that a car driven from Chicago to Detroit must cross state lines is that the judge will now instruct the jury that it may, but is not required to, accept that fact as conclusively proven. Under the Federal Rules, in a civil case, the court must instruct the jury to accept the judicially noticed fact as conclusive. [Fed. R. Evid. 201(f)] Because this question deals with a prosecution for criminal battery, the applicable rule is that the jury be instructed that the fact that has been judicially noticed may be accepted by it as conclusive, but that the jury is not required to do so. (A) would be correct if this were a civil case. In such an instance, the jury would be instructed to accept as conclusive the judicially noticed fact. This would have the effect of raising an irrebuttable presumption. (B) is incorrect because, in a criminal case, the prosecution has the burden of proving every element of the crime beyond a reasonable doubt. Only the jury can decide, after all of the evidence is in, whether the burden of persuasion is satisfied.

A defendant charged with driving while intoxicated pleaded not guilty and insisted on a trial. Right before the trial began, he fired his attorney and decided to defend himself. At one point during opening arguments, the defendant began to act like a cat, meowing and chasing an imaginary squirrel out of the courtroom. If no one else raises the issue of the defendant's competency to stand trial, what is the responsibility of the trial judge here? A The trial judge has no responsibility, because the defendant decided to defend himself. B The trial judge has no responsibility, because she cannot decide whether the defendant is competent to stand trial. C The trial judge must raise the issue of competency, because the defendant is representing himself. D The trial judge must raise the issue of competency, because the Constitution obligates her to do so.

(D) The judge must raise the issue of competency. If it appears to the judge that the defendant might be incompetent, the judge has a constitutional obligation to conduct further inquiry and determine whether in fact the defendant is incompetent. If the defendant is tried and convicted but it later appears that he was incompetent to stand trial, the judge's failure to raise the issue or to request a determination of competency does not constitute a waiver of the competency issue. Therefore, if the trial judge observes the defendant acting in such a way that may indicate he is incompetent to stand trial (e.g., meowing, chasing imaginary squirrels), she should conduct further inquiry to determine the competency of the defendant. (C) is incorrect. If there is evidence that the defendant might not be competent to stand trial, the judge should conduct an independent inquiry into competency regardless of whether the defendant is representing himself or is represented by an attorney.

While cross-examining a defendant on trial for robbery and assault with a deadly weapon, the prosecutor asks him whether he was convicted of fraud within the previous year. Is this question proper? A No, because fraud is not probative of a tendency to commit violence. B No, unless the proper foundation was laid. C Yes, because fraud is a form of stealing, and so it will tend to show that the defendant could commit robbery. D Yes, because it tends to show that the defendant would lie.

(D) The question is proper. The defendant has taken the stand in his own defense, and therefore the prosecutor can attack his credibility as a witness. Under Federal Rule 609, evidence of conviction of a crime requiring proof of an act of dishonesty or false statement can always be used to attack a witness's character for truthfulness. (A) is incorrect because even if fraud were probative of the tendency to commit violence, evidence of other crimes is not admissible to prove that a person has a propensity to commit criminal acts. (C) is incorrect for the same reason. (B) is wrong because no foundation is needed to show a prior conviction for impeachment purposes.

In 1970, Oscar, owner of a 100-acre tract, prepared and duly recorded a subdivision plan called Happy Acres. The plan showed 90 one-acre lots and a ten-acre tract in the center that was designated "Future Public School." Oscar published and distributed a brochure promoting Happy Acres which emphasized the proximity of the lots to the school property and indicated potential tax savings "because the school district will not have to expend tax money to acquire this property." There is no specific statute concerning the dedication of school sites. Oscar sold 50 of the lots to individual purchasers. Each deed referred to the recorded plan and also contained the following clause: "No mobile home shall be erected on any lot within Happy Acres." Sarah was one of the original purchasers from Oscar. In 1976, Oscar sold the remaining 40 lots and the 10-acre tract to Max by a deed which referred to the plan and contained the restriction relating to mobile homes. Max sold the 40 lots to individual purchasers and the 10-acre tract to Pete. None of the deeds from Max referred to the plan or contained any reference to mobile homes. 1. Assume for this question only that Pete has announced his intention of erecting a fast-food restaurant on the 10-acre tract and that Sarah has filed an action to enjoin Pete. If Sarah wins, it will be because: (A) Sarah has the benefit of an equitable servitude concerning the use of the tract. (B) Sarah, as a taxpayer, has legal interest in the use of the tract. (C) There is no vertical privity between Max and Pete. (D) Pete is a bona fide purchaser. 2. Assume for this question only that Joe, who purchased his lot from Max, has placed a mobile home on it and that Sarah brings an action against Joe to force him to remove it. The result of this action will be in favor of: (A) Sarah, because the burden of the restrictive covenant runs with the land. (B) Sarah, because the presence of the mobile home may adversely affect the market value of her land. (C) Joe, because his deed did not contain the restrictive covenant. (D) Joe, because he is not a direct but a remote grantee of Oscar.

1. A 2. A

Using Character in Criminal Cases (5)

1. Character evidence is inadmissible unless defendant opens the door [prosecutor cannot introduce evidence of defendant's bad character if it is offered to show defendant acted in propensity with this bad character] 2. Defendant is allowed to present evidence of relevant good character to show he acted in conformity with good character and did not commit the crime [reputation or opinion evidence only on direct] 3. If the defendant takes advantage of 2 to show he did not commit the crime, defendant opened the door and prosecution can rebut with evidence of defendant's bad character; 4. Evidence of prior bad acts are never admissible to show propensity, but they can be offered to show motive, identity, absence of mistake, intent, common plan/scheme. [this evidence is always subject to FRE 303 regarding unfair prejudice.] 5. If defendant testifies he automatically places his character for truthfulness/credibility at issue.

Using Character in Civil Cases (3)

1. Character evidence is inadmissible unless it is directly in issue or an essential element of a plaintiff's claim or defense. [no propensity][defamation, negligent entrustment, hiring, or retention, or child custody] 2. If litigant has some other purpose for introduction of character and it is relevant, then the rule prohibiting character will not keep it out. 3. If defendant testifies he automatically places his character for truthfulness/credibility at issue.

Five ways to impeach a witness

1. Prior inconsistent statement (if given under oath it is for both impeachment but also as substantive evidence; can use extrinsic evidence) 2. Bias or motive to misrepresent (allows admissible and even allow extrinsic evidence if refuted) 3. Prior conviction (crime involving dishonesty or false statement, it is usable to impeach in any case and no discretion by judge to exclude; felony but not exceed 10 years) 4. Specific acts of misconduct that bear on truthfulness or untruthfulness. (can be inquired into on cross-examination, but no extrinsic evidence) 5. Bad reputation for truth or veracity. (can use extrinsic evidence)

Joe Black owned 40 acres of cattle land, "Blackacre," which had been in his family for many generations. In 1990, a couple, the Greens, purchased a 40-acre tract to the north, "Greenacre," intending to establish an organic farm. Decades prior, Joe Black's grandfather and predecessor in title had granted a north-south easement of way to the then-owner of Greenacre across Blackacre, opening onto an east-west road, Highway 44, which bordered the south side of Blackacre. The easement had been recorded in the county records, although no mention of it was in the deed to the Greens. The easement itself was a gravel road in poor shape. A north-south road, Highway 67, ran alongside the western boundaries of both Greenacre and Blackacre. The Greens built a driveway out to Highway 67 across their own land. The Greens never used the gravel road across Blackacre, although Joe Black used it from time to time. In 2018, the Greens retired and conveyed Greenacre to Joe Black. In 2019, Joe Black conveyed Greenacre to a developer who planned to build a subdivision. Prior to purchasing Greenacre, the developer searched title to Greenacre and discovered the easement across Blackacre. After the closing, the developer informed Joe Black that she would be paving the easement and residents would use it as one way of access into the subdivision. Joe responded that no easement existed, so the developer sued to determine her rights to use the gravel road. A. The developer should lose, because the easement was extinguished by merger when Joe Black bought Greenacre. B. The developer should lose, because the easement was terminated by abandonment prior to her purchase. C. The developer should win, because Joe Black had constructive notice of the easement. D. The developer should win, because she holds an easement implied from prior use across Blackacre.

A

OWNER LIVED ON BLACKACRE, A 40 ACRE TRACT OF LAND. SHE SOLD HER MINERAL RIGHTS TO COAL COMPANY, WHICH MINED UNDER THE SURFACE. SUBSEQUENTLY, OWNER'S HOUSE AND A PORTION OF THE SURFACE SUBSIDED. SHE SUED COAL COMPANY FOR AN INJUNCTION AND DAMAGES TO HER HOME AND THE SURFACE. OWNER COULD PROVE THAT COAL COMPANY CAUSED THE SUBSIDENCE, AND THAT THE LAND WOULD HAVE COLLAPSED EVEN WITHOUT HER HOME ON IT, BUT SHE COULD NOT PROVE THAT COAL COMPANY WAS NEGLIGENT. WHICH ONE OF THE FOLLOWING STATEMENTS IS MOST CORRECT A. OWNER SHOULD RECOVER DAMAGES FOR INJURY TO BOTH HER HOME AND HER PROPERTY. B. OWNER SHOULD RECOVER DAMAGES FOR INJURY TO HER PROPERTY BUT NOT HER HOME. C. OWNER SHOULD RECOVER DAMAGES TO FOR INJURY TO HER HOME ONLY IF COAL COMPANY IS NEGLIGENT. D. OWNER SHOULD NOT RECOVER DAMAGES FOR INJURY TO EITHER BECAUSE SHE ASSUMED THE RISK BY SELLING THE MINERAL RIGHTS.

A

A landowner owned two adjoining parcels of land containing a number of lakes. She conveyed the eastern parcel, which contained a campground, to a fisherman. The deed transferring the parcel granted to the fisherman "and to invited guests of the campground all hunting and fishing rights and use of the lakes on the western parcel for the benefit of the campground." Subsequently, the fisherman assigned his hunting and fishing rights to a hunter. When the landowner discovered the hunter hunting and fishing on her land, she brought an appropriate action to declare his rights void. If the court rules for the landowner, it will be because the fisherman's right to hunt and fish on the western parcel is.:

A profit appurtenant (R. Profit is a nonpossessory interest in land that entitles the profit holder to enter onto the servient land to take minerals and substance from the land [can be appurtenant or gross]; Can only transfer an appurtenant profit with the land itself; Can transfer gross profit without transferring the land itself; Easement in gross only allows you to use the land, not take stuff from the land.)

A tenant entered into a written five-year lease to rent an office from a landlord for $6,000 per year beginning October 1. The lease required that rent in the amount of $500 be paid on or before the first of each month. Two months before the five-year term was up, the tenant received a new lease identical to the one he had already signed, except that the lease term began on the upcoming October 1 and the stated amount of rent per month was $600. The tenant returned the lease to the landlord unsigned, with a letter stating that he did not intend to renew the lease and would be moving out on September 30. The tenant did not move out on September 30. On October 1, the landlord received a check for $500 from the tenant. The notation on the check indicated that it was for the October rent. The landlord deposited the check in her account. She then sent a letter to the tenant stating that he was $100 in arrears in his rent. The tenant did not move out of the office during October, and the landlord did nothing to remove him. Most courts would hold that the tenant has what type of tenancy?

A year-to-year tenancy at $600 (R. Holdover Tenant liable under new terms of lease/money amount if tenant was notified of a rent increase prior to the end of the original lease; year-to year if commercial and month-to-month if residential)

It was common practice in a particular state for a security interest in land to be structured as a deed absolute, which gave a lender absolute title to the borrower's property as security for the loan. The lender would reconvey only on complete payment of the loan by the debtor party, and could dispose of the land immediately without a foreclosure sale on default. A new governor of the state whose campaign platform was built around abolishing the deed absolute mortgage encouraged the legislature to enact a bill that immediately outlawed use of the deed absolute, declaring that all such deeds would be considered mere liens against the secured property. The law applied not only to loans made in the future, but also to the thousands of such loans in existence at the time the legislation was passed. As soon as the governor signed the legislation, lending institutions and individuals who had loaned money secured through deeds absolute challenged the constitutionality of the new law. What is the strongest argument that the challengers can make?

As applied to the loans outstanding at the time the bill was enacted, the law impairs the contract rights of the lenders and such rights are guaranteed by the Contracts Clause of the federal Constitution. (R. Contracts clause only applies to state laws that retroactively invalidate already existing contracts; cannot do so unless the government act serves an important government interest and state law is narrowly tailored to that government interest.)

AIRLINE OWNED A FLEET OF SMALL PLANES. THEY FLEW IN AND OUT OF A SMALL AIRPORT IN THE STATE OF FRANKLIN SEVERAL TIMES A DAY. UNDEVELOPED LAND OWNED BY A DEVELOPER BORDERED THE AIRPORT TO THE NORTH. THREE YEARS AGO THE DEVELOPER BUILT A SUBDIVISION ON THE LAND. FLIGHTS PASSED SO LOW OVERHEAD THAT THEY DISTURBED THE RESIDENTS' USE AND ENJOYMENT OF THEIR PROPERTY. SALES OF LOTS SLOWED, AND THE DEVELOPER AND SOME OF THE RESIDENTS SENT THE AIRLINE A CEASE AND DESIST LETTER. AIRLINE DID NOT STOP THE FLIGHTS SO THE DEVELOPER AND RESIDENTS SUED FOR AN INJUNCTION. IN COURT, THE AIRLINE PROVED THAT IT EXCLUSIVELY HAD FLOWN OVER THE LAND FOR MORE THAN TWENTY YEARS AND HAD NEVER RECEIVED PERMISSION FROM THE DEVELOPER. THE RELEVANT STATUTE OF LIMITATIONS IS TEN YEARS. IF THE AIRLINE WINS, IT WILL BE BECAUSE A. THE AIR IS A PUBLIC HIGHWAY UNDER FEDERAL LAW. B. THE AIRLINE MET ALL OF THE ELEMENTS FOR A PRESCRIPTIVE EASEMENT. C. A NEGATIVE EASEMENT CAN BE ACQUIRED BY PRESCRIPTION. D. FEDERAL LAW IMPOSES AVIGATION EASEMENTS ON ALL LAND SURROUNDING AIRPORTS.

B

Arkin owned a three-acre tract in the country, Tract 1, on which he built a house. Arkin granted an easement to Billy, who owned an adjacent two-acre tract to the east, Tract 2, across Arkin's property to the county road, which abutted the western boundary of Tract 1. Billy purchased the ten-acre tract just to the east of his own, Tract 3, planning to build a subdivision with two lots on Tract 2 and three lots on Tract 3. He extended the easement on through to Tract 3, intending it to be used for access to all five subdivision lots. When Arkin discovered Billy's plans, he sued to enjoin use of the easement on Tract 3, and also to enjoin use for any subdivision on both Tracts 2 and 3. Arkin should: A. Win with respect to enjoining the extension to Tract 3, win with respect to enjoining use by a subdivision on Tract 2, and lose with respect to enjoining use by a subdivision on Tract 3. B. Win with respect to enjoining the extension to Tract 3, lose with respect to enjoining use by a subdivision on Tract 2, and win with respect to enjoining use by a subdivision on Tract 3. C. Lose with respect to enjoining the extension to Tract 3, and lose with respect to enjoining use by a subdivision on both tracts. D. Lose with respect to enjoining the extension to Tract 3, and win with respect to enjoining use by a subdivision on either tract.

B

IN THE STATE OF FRANKLIN, PERSONS OWNING LAND ON THE SHORES OF LAKES OR BANKS OF RIVERS AND STREAMS HAVE RIGHTS TO WATER FOR DOMESTIC, AGRICULTURAL, INDUSTRIAL OR COMMERCIAL USE. THEY MAY USE WATER ON NON RIPARIAN LAND. AN OIL COMPANY THAT DOES NOT OWN RIPARIAN LAND HAS BEEN GRANTED A PERMIT TO USE HUNDREDS OF THOUSANDS OF GALLONS OF WATER PER YEAR IN ITS FRACKING OPERATION. THIS LEGAL SYSTEM IS CLOSEST TO: A. THE RIPARIAN RIGHTS DOCTRINE. B. THE REGULATED RIPARIAN RIGHTS DOCTRINE. C. THE APPROPRIATIVE RIGHTS DOCTRINE. D. NONE OF THE ABOVE.

B

In 1990, Owen, the owner of a hillside tract, constructed a private sewage drainage system underneath his property. In 2000, he severed the tract into two properties and conveyed them both. Abby purchased Oneacre, the higher of the tracts, on which Owen had built his home. Abby's friend Bart purchased adjacent and unimproved Twoacre, situated lower than Oneacre. The drainage system was constructed so that sewage from Oneacre ran underneath Twoacre via a pipeline and drained into a municipal sewer at the bottom of the hillside. Neither of the deeds mentioned the sewer pipeline. Only Abby's property used the pipeline. Assume the relevant statute of limitations is ten years. In 2020, the pipeline most likely is: A. An easement appurtenant, and an easement by necessity. B. An easement appurtenant, and an easement implied from prior use. C. An easement in gross, and an express easement. D. An easement in gross, and a prescriptive easement.

B

Owen wants to give his son Adam his property, but he wants to control the timing of the conveyance. Which of the following is most likely to have created a valid conveyance? A. Owen gives Adam a deed that purports to give property in FSA immediately, but Owen tells Adam that the deed will not be effective until next Jan. 1. B. Owen gives Adam a deed that purports to transfer Adam the property in FSA on Jan. 1 of next year. C. Owen places the deed in escrow and instructs the escrow agent to deliver the deed to Adam on Jan. 1, unless the agent receives contrary instructions from Owen before that time. D. Owen places the deed in the office safe, which both Owen and Adam have access to, the deed purporting to convey Adam the property in FSA. Owen says "Don't record until Jan. 1."

B

The National Park Service recently created a new personnel level for field employees, which became the highest salaried position available to Park Service field employees. The position is restricted to employees over six feet in height. A female ranger who is five feet, three inches tall seeks your advice as to whether she can challenge the validity of the height restriction in federal court. If you decide to file suit on her behalf, which of the following would be your strongest argument against validity of the restriction?

Because most women are less than six feet tall, the restriction is an invalid discrimination on the basis of gender in violation of the DP Clause of the Fifth Amendment. (R. Equal protection applies to states, not federal;

A landowner owned a 640-acre tract of undeveloped land. The land was largely forested, with several streams running through it. The landowner conveyed an instrument titled "Timber Deed" to a logging company, giving the company the right to harvest timber of a certain size. The landowner also executed a "Water Agreement" with a bottled water company, allowing it the right to divert water from the stream. Which of the following is most likely true? A. Both the timber deed and the water agreement are easements. B. Both the timber deed and the water agreement are profits. C. The timber deed is a profit, and the water agreement is an easement. D. The timber deed is an easement, and the water agreement is a profit.

C

Allen owned Greenacre in fee simple on January 10. On that day Maria loaned Allen $50,000 and Allen mortgaged Greenacre to Maria as security for the loan. The mortgage was not recorded until January 18. Meanwhile, Allen conveyed Greenacre to Barnes for a valuable consideration on January 11. Maria did not know of this, nor did Barnes know of the mortgage to Maria, until both discovered the facts on January 23, the day on which Barnes recorded Allen's deed. The relevant statute of the jurisdiction provides "no unrecorded conveyance or mortgage of real property shall be good against a subsequent purchaser for value without notice, who shall first record." Maria sued Barnes to establish that her mortgage was good against Greenacre. The court should decide for: A. Barnes, because he paid valuable consideration without notice before Maria recorded. B. Barnes, because Maria's delay in recording estops her from asserting priority in time. C. Maria, because Barnes did not record his deed before her mortgage was recorded. D. Maria, because after the mortgage to her, Allen's deed to Barnes was necessarily subject to her mortgage.

C

Buyer and Seller entered into a purchase agreement for Seller's home. Buyer inspected Seller's home and raised no issues, purchasing the home for $150,000 and receiving a quitclaim deed. After the sale, Buyer became aware of a significant defect in the foundation that was not visible during the inspection. Buyer sued for damages and Seller, an accountant, introduced evidence proving that he had no knowledge of the foundation defect. Which one of the following is most correct? A. Buyer should win in Arkansas, which follows the common law rule. B. Buyer should win in most states, because a seller has a duty to disclose a material latent physical defect. C. Buyer should lose, because Seller had no knowledge of the defect and was not a builder vendor. D. Buyer should lose, because a quitclaim deed carries with it no promises

C

In 1960, Owens, the owner of Blackacre, a large undeveloped tract, granted an easement to Water District to install, maintain, repair and replace pipes within a properly described strip of land 20 feet wide across Blackacre. The deed was recorded and in 1961 the District installed a water main. In 1965, Owens sold Blackacre to Peterson. Owens's deed failed to refer to the easement. Peterson built a home and large formal garden area. Part of the latter covered the easement strip. In 2012, the District proposed to excavate the entire length of the main in order to repair and replace the main as necessary. The District announced its plans and its intent to do as little damage as possible. Peterson wants to seek an injunction against the District and asked his attorney for advice. The best advice the attorney can give is that: A. Peterson will succeed, because his deed did not mention the easement. B. Peterson will succeed, because more than 50 years have passed since the District entered Blackacre. C. Peterson will fail, because the District's plan is within its rights. D. Peterson will fail, because the District holds an easement by estoppel.

C

Oxnard owned Blueacre, a tract of land, in fee simple. At a time when Blueacre was in the adverse possession of Aaron, Elena obtained the oral permission of Oxnard to use a portion of Blueacre as a road or driveway to reach adjoining land, Redacre, which Elena owned in fee simple. Thereafter, during all times relevant to this problem, Elena used this road across Blueacre regularly for ingress and egress between Redacre and the county road. Aaron quit possession of Blueacre before acquiring title by adverse possession. Without any further communication between Oxnard and Elena, Elena continued to use the road for a total period, from the time she first began to use it, sufficient to acquire an easement by prescription. Oxnard then blocked the road and refused to permit its continued use. Elena brought suit to determine her right to continue use of the road. Elena should: A. Win, because her use was adverse to Aaron, and once adverse it continued adversely until some affirmative showing of a change. B. Win, because Elena made no attempt to renew permission after Aaron quit possession of Blueacre. C. Lose, because her use was permissive. D. Lose, because there is no evidence that she continued adverse use for the required period after Aaron quit possession.

C

SMITH AND JONES OWNED LARGE NEIGHBORING LOTS WITH NO FENCE DIVIDING THEM. SMITH DECIDED TO TRIM SOME TREES AND REMOVE UNDERBRUSH. HE ACCIDENTALLY REMOVED SOME ORNAMENTAL SHRUBBERY AND SMALL TREES BELONGING TO JONES, WHO SUED IN TRESPASS. SMITH'S DEFENSE WAS THAT HE HAD NO INTENT TO TRESPASS AND THEREFORE WAS NOT LIABLE. THE COURT SHOULD: A. FIND SMITH NOT LIABLE FOR TRESPASS BECAUSE HE DID NOT HAVE THE SPECIFIC INTENT TO TRESPASS. B. FIND SMITH NOT LIABLE FOR TRESPASS BECAUSE THERE WAS NO FENCE BETWEEN THE YARDS AND A REASONABLE PERSON WOULD NOT HAVE KNOWN HE WAS TRESPASSING. C. FIND SMITH LIABLE FOR TRESPASS BECAUSE HE HAD GENERAL INTENT. D. FIND SMITH LIABLE FOR TRESPASS BECAUSE HE HAD SPECIFIC INTENT

C

SURFACE OWNER LIVED ON LAND WHOSE MINERAL RIGHTS HAD BEEN SEVERED DECADES BEFORE. ONE DAY A LETTER ARRIVED FROM OIL COMPANY, WHICH HAD RECENTLY LEASED THE MINERAL RIGHTS FROM THE MINERAL OWNER, STATING THAT DRILLING WAS TO BEGIN IN A FEW WEEKS, AND THE DRILL WOULD BE LOCATED NEAR A BARN WHICH SURFACE OWNER WAS CURRENTLY NOT USING. SURFACE OWNER CONSULTED AN ATTORNEY ABOUT HIS RIGHTS. WHICH ONE OF THE FOLLOWING IS MOST CORRECT? A. SINCE OIL COMPANY HAS AN EASEMENT TO DRILL, SURFACE OWNER HAS THE RIGHT TO LOCATE THE EASEMENT AS LONG AS IT DOES NOT UNREASONABLY INTERFERE WITH OIL COMPANY'S RIGHT TO DRILL. B. IN ARKANSAS, SURFACE OWNER WOULD NOW OWN THE MINERAL RIGHTS BY ADVERSE POSSESSION BECAUSE THEY WERE UNPRODUCED FOR SO LONG. C. OIL COMPANY CAN DECIDE THE LOCATION OF THE DRILL AS LONG AS IT DOES NOT UNREASONABLY INTERFERE WITH SURFACE OWNER'S USE AND ENJOYMENT. D. NONE OF THE ABOVE.

C

The recording statute of the relevant state is as follows: A conveyance of an interest in land shall not be valid against any other subsequent purchaser for value, without actual notice thereof, unless the conveyance is recorded. Which one of the following is true, in a majority rule state? A. The statute is race notice. B. The statute protects judgment creditors. C. The statute protects mortgagees. D. The statute requires a grantee to record.

C

Tijuana owned two adjacent, two-story, commercial buildings separated by a party wall. Various stores occupied the first floors of both buildings. Other types of businesses rented the second floors. Access to the second floor of each building was reached by a common stairway located entirely in Building One. While the buildings were being used in this manner, Tijuana sold Building One to Ryan by warranty deed that made no mention of any rights concerning the stairway. At the same time, Tijuana sold Building Two to Dennis by a similar deed. The occupants of both buildings continued to use the common stairway. The stairway became unsafe as a consequence of regular wear and tear. Dennis entered Ryan's building and began the work of repairing the stairway. Ryan demanded that Dennis discontinue the repair work and vacate Ryan's building. When Dennis refused, Ryan brought an action to enjoin Dennis from continuing the work. Judgment should be for: A. Ryan, because Ryan has revoked Dennis's license to use the stairway. B. Ryan, because of the Statute of Frauds. C. Dennis, because Dennis has an easement in the stairway and an implied right to keep the stairway in repair. D. Dennis, because Dennis has an exclusive right to use and maintain the stairway.

C

A conveyed Blackacre to B with a general warranty deed in 2001. B Conveyed Blackacre to C with a general warranty in 2002. C conveyed Blackacre to D with a quitclaim deed in 2003. The statute of limitations is five years. In 2005, D was evicted from Blackacre by O, whose ownership predated A's possession. Which one of the following is correct? A. D can recover from A, B, and/or C for breach of both present and future covenants. B. D can recover from A and/or B for breach of both present and future covenants, but not from C. C. D can recover from A and/or B for breach of present, but not future covenants, and not at all from C. D. D can recover from A and/or B for breach of future, but not present, covenants, and not at all from C.

D

In 2000, Otis, the fee simple owner of Blackacre, 10 acres of undeveloped forest and prairie, granted Alana, an adjacent landowner, an easement of way to travel on foot to Fish Lake, on the other side of Otis's property. The grant of easement was recorded, although it lacked an acknowledgment. Alana cleared a path and used it to travel to the lake, where she fished. Beginning in 2005, Alana became a vegan and no longer fished. She stopped using the path, which within a year became overgrown and impassable. In 2010, Otis fenced Blackacre and blocked access to the path. In 2015, Alana took up painting as a hobby. Desiring to paint the lake, she cleared the path and began to use it once more, cutting through Otis's fence with bolt cutters. In 2016, Otis sued Alana for trespass. Assuming these facts took place in Arkansas, the court should: A. Rule for Otis, because the easement was not properly recorded. B. Rule for Otis, because he terminated the easement by adverse possession. C. Rule for Alana, because she has an easement by prescription. D. Rule for Alana, because she has exercised her rights.

D

LaKesha owned Redacre, a lot improved with a house. Bobby owned Greenacre, an adjoining unimproved lot. Bobby executed and delivered a deed granting LaKesha an easement over the westerly 15 feet of Greenacre for convenient access to Polk Street, a public street, even though LaKesha's lot abutted Tyler Street, another public street. LaKesha did not record Bobby's deed. After LaKesha built and started using a driveway within the described 15-foot strip in a clearly visible manner, Bobby borrowed $10,000 from Bank and in return mortgaged Greenacre to Bank, which recorded the mortgage. LaKesha then recorded Bobby's deed granting the easement. Bobby subsequently defaulted on his loan payments to Bank. 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." Bank has filed a foreclosure action as to Greenacre against LaKesha and Bobby. Bank seeks, among other things, to have LaKesha's easement declared subordinate to Bank's mortgage, so that the easement will be terminated by completion of the foreclosure, as the law of the jurisdiction allows. If LaKesha's easement is NOT terminated, it will be because A. The recording of the deed granting the easement prior to the foreclosure action protects LaKesha's rights. B. The easement provides access from Redacre to a public street. C. LaKesha's easement is appurtenant to Redacre and therefore cannot be separated from Redacre. D. Visible use of the easement by LaKesha put Bank on notice of the easement.

D

O executed a deed conveying a home to A, but did not deliver or record the deed. O intended the home to be a gift to A, and thus there was no contract and no consideration. Before O could deliver the deed, A died unexpectedly in an accident. A's surviving spouse B learned of the deed and is claiming rights in the home. Which one of the following is true? A. B should win because of the doctrine of equitable conversion. B. B should win because of rights to dower/curtesy and homestead. C. O should win because a deed without a contract and consideration is void. D. O should win because the deed was never delivered, and a deed to a deceased grantee is void.

D

Recently enacted legislation required farmers in certain counties of a western state to use drip irrigation systems instead of traditional methods in order to conserve water for agricultural and other uses. A farmer who refused to use the drip system was charged pursuant to the enforcement provisions of the legislation. A state court enjoined him from using other irrigation methods and fined him. The farmer appealed to the state supreme court, renewing his trial court claims that the irrigation legislation violated a state constitutional provision prohibiting certain governmental intrusions into private commercial activities and that it was preempted by federal water management statutes. The state supreme court held that the state constitution prohibited the challenged legislation, and construed the relevant statutes as being within the parameters of the federal statutes, and thus preempted. If the state petitions for certiorari to the US Supreme Court, how should the Court rule on the petition?

Deny the petition, because there is no substantial federal question that is dispositive of the case. (Would be an advisory opinion if State Court has already ruled that the law violates the State Constitution and this was decided on adequate and independent state grounds) (R. When may a Supreme Court rule on a State court decision? (1) Has to be a final judgment from a state court; (2) Had to come from highest state court; (3) Substantial federal question being raised; and (4) Decision from state court did not rest on adequate and independent state grounds.)

A vendor entered into a written contract with a purchaser for the sale of a large tract of land. The contract set forth an accurate metes and bounds description of the land based on a professional survey. At closing, the purchaser discovered that the deed was incorrectly transcribed and did not agree with the description of the land in the contract. The deed described the property to be conveyed as follows: "(i) from the southwest corner of [a specified starting point], proceed South 45 degrees East 200 feet to [a specified point]; (ii) from that point, proceed South 45 degrees West 100 feet to [a specified point]; (iii) from that point, proceed North 45 degrees West 200 feet to [a specified point]; and (iv) from that point, proceed South 45 degrees East 100 feet to the starting point." The purchaser refused to proceed with the closing and brought an action to reform the deed to make it conform to the intention of the parties. Which of the following corrections should be made for the deed to properly describe the land? A Direction (i) should be changed to "South 45 degrees East 100 feet." B Direction (iii) should be changed to "North 45 degrees West 100 feet." C Direction (iii) should be changed to "North 45 degrees East 200 feet." D Direction (iv) should be changed to "North 45 degrees East 100 feet."

Direction (iv) needs to be corrected in its course but not its distance. In land contracts and deeds, property may be described in various ways as long as the description is unambiguous. From a designated starting point that can be identified by reference to a government survey or a natural or artificial monument, the boundaries of the property can be described by successive calls of courses (e.g., angles) and distances until returning to the starting point. A course is a statement of direction generally stated as some number of degrees east or west of due north or south. In each call a distance must be stated together with the course. Thus, the boundary in direction (iv) runs at an angle 45 degrees east of due south (i.e., southeast) for a distance of 100 feet. However, because direction (i) went southeast, direction (ii) went southwest, and direction (iii) went northwest, the fourth direction has to be northeast for a distance of 100 feet to bring the final boundary back to the starting point. (In this type of question, diagram the boundaries as shown below to help you visualize the property.) Therefore, the correction in choice (D) is correct. (A), (B), and (C) are incorrect because none of those proposed changes in distance or direction would be sufficient to bring the final call back to the starting point.

A father conveyed his property to his son and daughter "as joint tenants with right of surviviorship, but if they ever attempt to sell the property during their lifetimes, a right of first refusal based on the sale price is hereby granted to my sister." Unbeknownst to the son or the sister, the daughter quitclaimed her interest in the property to a purchaser. The following month, the daughter was killed in a snowmobile accident. The purchaser of the daughter's interest filed a suit for partition of the property. The son filed an appropriate counterclaim for quiet title, asserting that he was the owner of the entire parcel. The sister also filed a counterclaim, asserting that her right of first refusal was valid and that she was prepared to exercise her right to purchase the property for the contract price. In a jurisdiction in which the RAP is unmodified by statute, how should the court rule?

For the sister, because she has a valid right of first refusal. (R. rights of first refusal have to follow RAP; not an unreasonable restraint on alienation if can sell, but must first offer ROFR ) (Not violate RAP here because right of first refusal is for the life of the sister, so we will know during her life whether or not ROFR will be exercised)

A homeowner discovered that the siding on his house was defective and had allowed water to enter the structure, causing damage to the wood framing. The homeowner tried for some time to negotiate a settlement with the corporation that the homeowner believed had manufactured the defective siding. When no settlement was forthcoming, the homeowner filed an action in federal district court against the corporation one week before the SOL expired. Service of process was effected on the corporation several months later. After inspecting the home, the corporation filed and served its answer in which it denied manufacturing the siding used on the homeowners house. Upon examining the corporation's evidence, the homeowner conceded that the siding was manufactured by another company. With leave of court, the homeowner then filed an amended complaint substituting the actual manufacturer of the siding for the original incorrect defendant. The amended complaint was served on the manufacturer approximately seven months after the original complaint was filed and after the SOL had expired. The manufacturer was unaware of the action until it was served with the amended complaint. The manufacturer filed a motion for SJ on the grounds that the homeowner's claim against it is barred by the SOL. How should the court rule on the motion?

Grant the motion, because the amended complaint was filed after the SOL expired and the actual manufacturer did not receive timely notice of the action. (R. Amendments to claims substituting a new defendant are allowed and relate back if (1) claims arise from the same transaction or occurrence; (2) within the time allotted for serving the original complaint [90 days of filing]; (3) so that they received such notice that a claim was against them so that they would not be overly prejudiced; and (4) knew or should have known there would be an action against them.)

To encourage minority business and foster pride in minority heritage, a state adopted legislation exempting magazines and other periodicals from the state's receipts tax if 20% of the magazine is devoted to articles concerning minorities ( a commission was set iup to sample magazines to determine on a yearly basis whether they should be exempt.) A publisher produced a sports magazine in the state that occasionally contained articles about minority athletes, but the commission determined that the publisher's magazine was not eligible for the receipts tax exemption. After paying the tax assessed on her magazine, the publisher sued for a refund.

In favor of the publisher, because the tax violates the 1st Amendment freedoms of speech and press. (R. Content based and viewpoint regulations on speech are preemptively unconstitutional and tested under a strict scrutiny standard of review and are rarely upheld)

The victim collapsed at her desk while drinking her morning coffee and was rushed to the hospital. Later that night, the victim's brother went to visit the victim in the intensive care unit. Barely conscious, the victim said "I've thought about this all day and it must have been my assistant. She brought me my coffee this morning before I could make it for myself, and she's never done that before. Don't let her get away with murder." The victim soon lost consciousness and lapsed into a coma, and she remains in this vegetative state. It was determined that she was poisoned. The assistant is arrested and charged with attempted murder. At the assistant's trial, the prosecution wishes to call the victim's brother to testify to the victim's statement about the assistant. The court should find the statement:

Inadmissible, because it is hearsay not within any exception. (R.Dying declaration 4 requirements 1. unavailability on part of the declarant at trial; 2 Belief that death is imminent; 3 statement concerning the cause or circumstances surrounding the belief of death; and 4. applies in any civil case and in criminal homicide cases.) (Therefore, here it would not count as a dying declaration because it is a criminal case that is for attempted murder, not homicide.)

The legislature of a state was concerned that the numerous and strident television, radio, and newspaper advertisements by auto dealerships annoy and mislead the public. Therefore, it enacted comprehensive legislation regulating the timing and content of such ads, limiting their duration, frequency, and the types of claims and information made and given. Which of the following statements is most accurate as to the constitutionality of the state's ad regulation?

It is constitutional if it does not prohibit the dissemination of truthful information about price and the availability of products, and is narrowly tailored to serve a substantial government interest. (R. Commercial speech allowed as long as they serve a substantial government interest; Intermediate scrutiny used for: zoning laws on adult movie theaters and bookstores, nude dancing bands, symbolic speech, content neutral time place and manner restrictions.)

At the defendant's trial for grand theft auto and other offenses, the prosecution offers to introduce the testimony of a police officer. The officer will testify that he showed a photographic lineup containing the defendant's picture to a witness who had seen the defendant feeling form the stolen vehicle at the conclusion of a high-speed chase, and the witness selected the defendant's picture. The witness has left the state and she refuses to return. Should the court admit the evidence?

No, because it is inadmissible hearsay (Not admissible under prior identification because the witness is not available to testify, so we do not know if the witness is lying or not.)

Auto workers went on strike in a town heavily reliant on the auto industry. While negotiations between the union and management were ongoing, a person intercepted and recorded a phone call between the union's president and management's chief negotiator. A state statute makes it illegal to record a phone call without the consent of the parties being recorded. The statute also make is illegal to play an illegally recorded conversation on television or radio. The person who recorded the call anonymously sent the recording to a local TV station. The TV station news anchor played the recording on air. Can the anchor who played the recording be prosecuted under the statute?

No, because the anchor did not record the conversation, and the information is truthful and about a matter of public significance. (R. Press has a right to publish info about a matter of public concern and it can only be restricted by a narrowly tailored sanction designed to further a state interest of the highest order; applies even if the information has been obtained unlawfully.)

A motorist from State A struck and injured a pedestrian in State B. The pedestrian, a state B resident, brought an action in a State B federal court against the State A motorist, seeking $100,000 in damages. The summons and complaint were served on a receptionist at the motorist's place of business in State A. State A's rules permit service of process in this manner, while State B's rules do not. If the motorist moves to dismiss the complaint on the basis of improper service of process, is the court likely to dismiss the action?

No, because the federal rules permit service under the rules of the state in which service will be effected (R. Service can be made as allowed by the rules of the state where the fed. court sits or the state where service was to be affected.)

A state statute prohibits leaving a child under the age of five years unattended in an automobile. A mother parked her car at a supermarket parking lot. She left her four-year-old son in the car with his seat belt fastened while she did her grocery shopping. While the mother was shopping, the son undid his seat belt, left the car, and started riding on the grocery carts that customers had left in the parking lot. The son crashed one of the carts into another shopper's car, causing damages. The shopper brought a negligence action against the mother to recover for the damage caused by the son. At trial, the shopper presented evidence of the statute and the facts stated above. At the conclusion of the shopper's case, the mother moved for a directed verdict in her favor. Should the court grant the mother's motion?

No, because the jury could find that it was foreseeable that the son would cause damage to cars in the parking lot if the mother left him unattended. (R. Negligence per se should only be picked if statute designed to prevent that type of harm and protect that particular class.)

A customer slipped and fell in a store, suffering a severe injury. Several weeks after the accident, anticipating that the customer would file an action against it, the store's attorney had the store manager interview any employees who were near the accident to determine what they saw or heard. The store manager did so, taking handwritten notes. The notes are now in the store's possession. The customer subsequently filed a civil action against the store in federal district court. The complaint alleged that the store negligently left a spill on the floor of the store, causing the customer's fall. The customer's attorney served on the store a request for production of documents, which included a request for all documents and reports prepared by the store that relate to the customer fall and injury. Must the store produce to the customer the notes taken by the store manger when he interviewed the store's employees?

No, because the manager's notes are protected by a qualified immunity from discovery under the work product doctrine (R. Work product doctrine is a qualified immunity [not absolute immunity]; not have to be produced unless it can be shown that there is a substantial need or an undue hardship)

A tourist from State A was severely injured in a bar fight in State B. The tourist filed a battery action against one of the bar's patrons, seeking $100,000 for his injuries. The defendant patron claims that the tourist is mistaken about who hit him. The patron says that he did not touch the tourist. The patron claims that it was the bar's bouncer--who looks like the patron-- who hit the tourist and then continued to pummel him. The bouncer claims that he never touched or harmed the tourist. Can the patron assert a third-party claim against the bouncer to bring him into the action?

No, because the patron has no legal basis to assert a claim against the bouncer (patron is denying liability all together) and is not seeking to recover from the bouncer any portion of the patron's liability to the tourist.

A merchant owned a skate rental business that she operated out of a specially equipped van. She would drive to various parks and public beaches within her home state and rent roller skates, related safety equipment and lightweight stereo/earphone sets to passerby on an hourly basis. She also sold skates and skating equipment. About 50% of the merchant's time is spent in a single city, and she earns about 70% of her gross rental and sale income at that city's beach areas. After receiving numerous complaints from beach goers about the sidewalks congested with roller skates, the city council passed an ordinance prohibiting roller skating on public property between the hours of 7 am and 9 pm If the merchant seeks to enjoin enforcement of the ordinance in federal district court on the basis that it is unconstitutional, what should the court do?

Reach the merits of the merchant's challenge because enforcement of the ordinance will harm her business and the rights of the public are linked to her rights (R. A seller of goods may have third party standing to challenge a law that adversely affects the rights of her customers. [standing plus this])

After leaving ceremonies at which the chief justice of a state supreme court had been named distinguished jurist of the year, an associate justice was interviewed by the press. The associate justice told a reporter that the chief justice "is a senile imbecile who lets his clerks write all his opinions. He hasn't had a lucid thought in decades, and he became a judge by being on the payroll of the mob." Enraged, the chief justice brought an action for defamation against the associate justice. Which of the following, if established by the chief justice in his defamation action, would permit recovery against the associate justice?

The associate justice made the statements knowing they were false. (R. Defamation: False statement by the defendant that injures the plaintiff's reputation; Public figure: must show published defamatory statement with actual malice [knowledge of falsity or reckless disregard of the truth] ;Public concern/matter: only have to show negligence and damages [4 per se situations where damages are presumed: 1. Loathsome disease 2. Impugning a women's chastity when it is not true 3. Accusing someone of committing a crime of moral turpitude 4. Impugning someone's profession, trade or business])

The plaintiff sued the defendant dry cleaner, claiming that it had permanently ruined her $10,000 mink coat by cleaning it with a solvent that left an extremely offensive odor that smelled like "skunk." Further attempts to have the odor removed by other cleaning services were unsuccessful. The odor was so bad that she could no longer wear the coat. At the trial, the plaintiff testified to the above facts. She then identified a mink coat as her coat that the defendant had ruined. She testified that it still smelled the same as it did after the defendant had cleaned it. The plaintiff's counsel offered to introduce the coat for the purpose of having the jury smell it. Defense counsel objected. How should the court rule?

The coat is admissible based on the plaintiff's testimony (R. Before an object is admissible at trial, the proponent of the evidence must present some additional evidence to establish that the object is what the proponent claims it is; you DO NOT HAVE to present extrinsic evidence.)

A testator executed a will, devising his land "to my son and my daughter, share and share alike." Shortly thereafter, the daughter died intestate, leaving a child as her only heir. The next year, the testator and his son were involved in a car accident The testator died immediately. The son died six days later leaving a will that bequeathed his entire estate to his wife. The jurisdiction has the following statute: "If a devisee, including a devisee of a class gift, who is a grandparent or a lineal descendant of a grandparent of the testator is dead at the time of execution of the will or fails to survive the testator, the issue of such deceased devisee shall take the deceased's share under the will. Who owns the land.

The daughter's child and the son's wife each own an undivided one-half interest in the land. (R. Under common law, if a beneficiary predeceases the testator, it would pass to testator's residuary unless there is an anti-lapse statute.)

An investor rented his property to a pottery maker, who intended to use the back part of the building for living quarters, and the front part as a pottery studio. The pottery maker installed a kiln, some lights, and some storage units in the front part for her use. Sometime later, the investor mortgaged the property to a bank to secure a loan. The mortgage was recorded, but the investor did not personally tell the pottery maker that he had done so. In fact, she only learned of it when the investor defaulted on the loan and the bank foreclosed on the mortgage and told the pottery maker that she would have to quit the premises. The pottery maker began removing the equipment and fixtures that she had installed in the building. The bank objected and sought an injunction to prevent her from doing so. Under these circumstances, on what basis should the court deny the injunction

The equipment was installed for the pottery maker's exclusive benefit and she did not intend for it to stay. (R. Residential fixture: look at nature of chattel, intent for whether chattel will stay, and how much damage will be caused to the real property if the chattel is removed; Commercial fixture: we apply the trade fixtures doctrine, which allows a tenant to remove all trade fixtures prior to lease expiring. [Exception: accessions cannot be removed, which are structural additions to the property like a deck.]) (Here, fixtures are on the commercial part, so they can all be removed prior to the expiration of the lease.) (notice of there being a mortgage by landowner on the property is irrelevant.)

An owner of three acres of lakefront property subdivided it and sold two acres to a buyer, retaining the one acre actually fronting on the lake. The deed for the two acres expressly included an easement over the westernmost 30 feet of the one-acre parcel retained by the owner for access to the lake. The buyer recorded his deed in the county recorder's office, which maintained an alphabetical grantor-grantee index only. Fifteen years later, the owner died, leaving the one-acre parcel to his wife. She sold it to a developer that planned to build condominiums. A month later, the buyer died, and his two acres passed by will to his nephew. Three weeks after taking title to the property, the nephew visited the property and discovered that the developer had erected a chain link fence all along the boundary between the nephew's land and the acre of lakefront land. The nephew brings an action to enjoin the developer from obstructing his easement across the acre of lakefront property. Which of the following best describes why the nephew should prevail in this litigation?

The nephew's easement is a legal interest that the developer had record notice of, even though there is no tract index. (Recorded notice, so no track index is irrelevant.) (R. Easement can be created by: express easement, adverse prescription/possession, landlocked; Easement terminated by: abandonment,

An American tourist was visiting another country when he was warned by US health authorities to go immediately to a hospital because he had a serious and extremely contagious disease that required him to be quarantined. He decided to ignore the warning and instead traveled on an airline flight back to the US. Despite the tourist's belief that he would not be discovered and his best efforts to keep a low profile, the news media were tipped off to what he had done and publicized it. When a passenger who had been sitting next to the tourist on the plane learned about it, she became extremely upset, fearing that she would contract the disease. The passenger brought a negligence action to recover for the distress she suffered but the jury rejected her claim. Why?

The passenger did not suffer physical injury from her distress. (R. Must suffer physical harm or injury for NIED [Exceptions: 1. mishandling a corpse; or 2. False report of death])

A patient was scheduled to undergo non emergency surgery for the removal of her appendix by her family doctor. The day of the surgery, the doctor was called out of town because of a family illness. Even though the surgery could be postponed, the doctor asked the surgeon on call, who was an expert in appendectomies, to take his place. The patient was not informed of the switch in doctors. If the patient sues the surgeon on a battery theory, who will prevail?

The patient, regardless of whether she establishes damages at trial because there was no consent by patient. (There was no emergency and no consent)

A philanthropist told his friend, who was a state governor, that he planned to build a museum. The governor thought that the museum would bolster the state's tourism industry and offered to arrange to have the state purchase land and grant it to the museum to enable the philanthropist to build a bigger museum with his money than originally planned. The philanthropist agreed, and the museum was built. The philanthropist undertook the hiring of the museum's senior staff. He was of German descent and was ashamed of Germany's actions during World War II. To assuage his own conscience, he refused to hire anyone whom he believed to be of German descent. A restoration expert applied for a job as chief curator of the museum, but the philanthropist refused to hire him because of his German background. The restoration expert discovered the philanthropist's rationale and brings suit against the museum, claiming that the hiring practice violates his constitutional rights. How is the court most likely to rule?

The policy is constitutional, because the museum is a private entity and so may constitutionally hire and fire as it desires. (Just giving land is not enough for state action) (R. If a private citizen is discriminating, it is usually not going to violate an individual's constitutional rights; only if the government is significantly involved in the the activity will you find state action, incidental involvement is not enough.)

On an icy day, a vehicle driven by the defendant struck the plaintiff's car in the rear, smashing a taillight and denting the plaintiff's bumper. Before the plaintiff could say anything, the defendant rushed out of his car and told the plaintiff, "Look, if you'll take $500 for the damage, I'm sure my insurance company will pay for it." The plaintiff refused and sued the defendant for damage to his car and minor personal injuries. The plaintiff wishes to testify as to the defendant's statement at the time of the accident. The defendant objects. Should the court allow the defendant's statement to be admitted?

Yes, because it is a statement by an opposing party. (R. Statement by opposing party being offered against him functions as an admission and is admissible.)

A balloonist sued the manufacturer of deflation panels for hot air balloons after one of the panels failed while his balloon was descending, causing the balloon to crash and the balloonist to suffer severe injuries. At trial, the balloonist calls as a witness a structural engineer who testifies that, common to industry practice, her opinion is based on several reports done by an independent laboratory on the burst strength and material composition of the deflation panel closures. The balloonist's attorney then asks the engineer whether, in her opinion, the closures caused the deflation panel to give way. The manufacturer objects. Should the court admit this testimony

Yes, because structural engineers reasonably rely on such reports in the course of their profession. (R. Experts do not have to have personal knowledge to make a statement/opinion; Experts do not have to offer into evidence reports used to make their statement/opinion.)

A landowner who had owned and operated a small airport notified the electric company that he was discontinuing operations and that it should shut down the electrical current that had supplied his communications equipment. The equipment had been surrounded by a fence and signs warning of high voltage. Because the electric company had maintained a transformer next to the landowner's communications equipment that contained many valuable and reusable parts, it decided to leave the power on to prevent theft until it could schedule removal of the transformer. Three days later, a trespasser who knew that the airport had closed went onto the property looking for something to steal. He could find nothing of value except the transformer. He noticed the signs warning of the high voltage but believed that the power had since been turned off. He scaled the fence with the intent to dismantle the transformer. As soon as he touched the transformer, he was seriously injured by the electric current. If the trespasser asserts a claim against the electric company to recover damages for his injuries, will he prevail?

Yes, because the electric company used unreasonable force to protect its property. (R. You cannot use deadly force to protect property.)

A developer contracted with a general contractor to build an office building, and completion of the building was two years late. The developer filed a breach of contract action in federal district court against the general contractor, seeking damaged caused by the delay. The general contractor filed a third-party claim against a major subcontractor, claiming that the subcontractor caused any delay and should be liable to the general contractor for anything the general contractor has to pay the developer. The subcontractor believes that the developer interfered with the subcontract and that the developer's interference caused not only the delay but also substantial cost overruns for the subcontractor. May the subcontractor assert a claim in the pending action against the developer seeking payment for the cost overruns?

Yes, because the subcontractor's claim against the developer arises form the same transaction or occurrence as the developer's original claim, but the subcontractor may assert the claim in an independent action if it prefers.

The defendant was charged with embezzling $1 million from his employer, a bank, by transferring the funds to a secret offshore account in the bank's name. Only the defendant and the bank's VP were authorized to draw funds from the account. The defendant testified that he had wired $1 million to the account but had done so at the direction of the bank's VP. The defendant stated under oath that he had no intent to embezzle bank funds. The government's cross-examination of the defendant concentrated exclusively on his relationship and conversations with the VP, who has committed suicide. The defense now seeks to call a second witness, who is prepared to testify that he ad worked with the defendant for 10 years and that the defendant had a reputation in both the business and general communities as being a very honest person. Is the witness's testimony admissible.

Yes, to hep show that the defendant did not embezzle funds. (R. Normally you cannot bolster your witness's credibility before it has been attacked. Exception: if it is being offered for some other purpose.) (Here, he was charged with embezzlement, so he is allowed to present evidence of his good character reputation to show he is honest and not the type of person that would embezzle.