13 February 2007

MEMORANDUM

TO: Property Section 1

RE: The Exam

I thought that the exams were good. No one failed. No one came even close to failing. Indeed, for the first time in a number of years, I did not find it necessary to give anyone a grade below B-. There were a few dismal performances on individual parts. But those that did badly on one part compensated for it by what they did on other parts.

If you want to see your exams, they are in my assistant’s office (Jane Reader, Hauser 518). You'll have to show her your ID card, since they are arranged by ID number. If you want to make a copy of the exam, you’ll have to give her your ID card until you return the exam. (This is because of a crazy rule that our accrediting agency requires: All exams must be kept for three years.) If you want to see me about the exam, sign up for my Monday office hours. (If a lot of people want to do this, I’ll schedule some extra hours.) There’s a sign-up sheet outside my office door, and please bring your exam with you when you come. Since the three middle grades (B, B+, and A-) into which the bulk of the class falls are “curved,” I will probably not be able to tell you very much about why you fell on one or the other side of the line represented by those grades. (I know that many of you will find a “B” disappointing and an “A-” quite satisfactory, but my colleagues insist on three categories, and I don't know of any way to create them other than statistically.) I do think I might be able to help if you got a grade of B-.

There’s relatively little that one can say about the objective and short-answer parts other than that as a group you did as well as classes taking the exam in the spring have done on the same or similar questions.

The essay question was prompted by a reading of the 23rd chapter of Genesis for entirely different purposes. I wondered whether the current mess in the Middle East might be attributable to what might be called a 400-shekel misunderstanding. I tried to write the question in such a way that the focus was on the possible misunderstanding without getting involved in the myriad issues of the current Middle East. Everyone played the game (at least in the written answers). The parallels between the Abrahamites and Canaanites of the problem and the modern Israelis and Palestinians were there, but there are a lot of differences as well (not the least of which is that the Palestinians also claim to be descendants of Abraham). Good answers did, however, focus, at least in their advice to the Attorney General, on the fact that a conquered people are living within the Abrahamite State and on the fact that the descendants of Abraham are likely to be quite miffed if the site is destroyed.

It was a fun question to read. Even after seventy-five exams, people were still taking new approaches to the problem, approaches that were not only “interesting” but even quite possibly correct. Hence, this exam is even less amenable to the “sample answer” approach and listing all of the things for which I gave credit would make this memo unconscionably long. The “sample” that I enclose took me a couple of hours to write (and I knew where the “bodies were buried”). It’s a lot longer than some of your answers were, but even here there was clearly a lot more that could be said. In my usually objective fashion, I think I would give my answer an “A”; I doubt I would give it an “A+”.

There was no single issue that separated the good answers from the not- so-good ones, but there was a piece of the chain of title that, at least in my view, is key to understanding the problem. Most people thought--and I’m inclined to agree with them--that on the facts that we have here, a court is likely to hold that Abraham bought whatever it was that Ephron had to sell. That does not, however, mean that what he had would translate into a fee in Anglo-American terminology nor that Samuel’s predecessors had the fee. Absent a conveyance or a testament, which is not mentioned, Abraham’s interest, whatever it was, would pass by intestacy to the descendants of Abraham whom both the Bible and the problem tells us are “numerous as the stars of the sky.” If, as the sample answer suggests, we cannot assume that the priests of Machpelah acquired title to the site before the conquest, then the current private title is dependent on quite recent events. The problem does not say that Samuel did anything in 1980. The first evidence that we have that he was asserting any interest greater than “custody” of the shrine and the site is in 1987, and that is probably not enough time (as of early January 2007) to have run out the statute of limitations. On these facts, an argument can be (and should be) made that title to the gold rests in the Abrahamite State.

A copy of the essay question is enclosed after the sample answer to it.

PART III—“MODEL ANSWER”

The dates in this problem are key, let us begin with a time-line:

?--‘Sale’ of field and cave by Ephron to Abraham

‘many centuries’--priest of Abrahamites maintains shrine, collects offerings, uses field for access, descendants of Ephron occasionally graze flocks on the field, visitors to burial site mostly Abrahamites, sometimes descendants of Ephron

1980--Abrahamites conquer Canaanites and adopt common law and US constitution

1987--Samuel conveys fsd to H., M., and A.

1988--H. makes will giving property to S.

1988--Samuel dies. No will or surviving spouse mentioned. Property passes to H., M., and A. by intestacy

1989--conditions of fsd violated by M. and A., their shares pass to H., M., and A., with the result that H. owns 5/9, M. 2/9, and A., 2/9.

1990--AS passes “life-style” law. This probably has no effect on what has already happened.

1993--H. conveys fsd to M., deed in escrow

– 2 – 1995--jt agreement among H., M., and A.

1999--M. and A. die; their property passes by intestacy to J. and E.

2004--H. dies, deed from H. recorded, M. ceases paying her aunts and announces her engagement to Sofer

2005--gold discovered

2007 (Jan.)--Sampson, J. and E., and Ephron232 sue.

(2) Let us begin with Ephron232:

Ephron232, a “resident stranger” in Abrahamite State, sues on behalf of himself and the other direct descendants of Ephron, son of Zohar, claiming that a transaction that occurred centuries ago passed only an easement for burial to Abraham and not the fee in the field of Machpelah and the cave. The problem tells us that Ephron232’s claim to direct descent can be established and that the account of the sale can be introduced into evidence. (This latter, of course, does not tell us what we, or the court, should make of it.) We make a further assumption that Ephron232’s status as a “resident stranger,” which probably can be equated with the Anglo-American concept of citizenship, or rather, lack of it, does not bar his claim to own a fee interest in Abrahamite land. (The fact that there are other Canaanites living in the area as a conquered people, whom at least some members of the legislature want to mollify, would suggest as much.)

The basic proposition of Anglo-American law, and of customary international law, is that private titles are recognized even when a territory is conquered. U.S. v. Percheman. Even Johnson v. M’Intosh recognizes the Native Americans’ right to occupancy, and nothing in the problem suggests that the Canaanites were of such a radically different culture from the Abrahamites as to keep them out of this basic principle.

The question then becomes what was the legal situation with regard to the cave and the field before the conquest? The Canaanites did not cultivate the field, but Ephron’s descendants used it occasionally for grazing. An Abrahamite priest operated the shrine, but did not live on the field. Nothing that the Abrahamites did is inconsistent with the notion that the sole right that they exercised was to maintain the burial site and the shrine as a holy place. Absent any indication that either group exercised possessory rights of the type normally associated with adverse possession, we are forced back to the original transaction.

Abraham’s purpose is clear. He wanted a burial site for Sarah. Also, since he was nomad, he had no use for the site other than as a burial place for Sarah. He paid, however, a high price for the field, and the account twice says that it passed into his “possession,” once specifically mentioning the trees. The question is how should that word be interpreted, granted that we cannot assume that anyone had the Anglo-American notion of possession in mind?

The account tells us that Abraham first spoke to the Canaanites collectively, and--perhaps this is not too much of an anachronism--obtained permission from them to negotiate with a specific Canaanite, Ephron. It certainly looks as if whatever rights Ephron had in Machpelah under Canaanite law at the time, he passed to Abraham. Now, of course, in modern terms, the Canaanites

– 3 – retained sovereignty. Abraham’s rights were dependent on Canaanite enforcement. When the Canaanites lost sovereignty, the Abrahamite State acquired the power to enforce those rights, but under international law it had to recognize them.

That leads to two questions: First, what were those rights? In Anglo- American law, there is a strong tendency not to allow fee ownership in burial sites to be had by the person whose remains are to be found in the site. Indeed, in some jurisdictions, ownership of a burial site by those who are buried there (and, by extension, their heirs) is precluded. If we accept the notion that Ephron’s descendants are precluded from fee ownership by his sale, the only other possible candidate for the fee owner is the Canaanites collectively. Did they lose those rights by conquest?

Second, to whom did the rights that Abraham acquired pass? In the absence of a conveyance that would have been recognized under the law of the time, they passed to Abraham’s descendants. It might be tempting to say that Abraham’s descendants are now the Abrahamite State, were it not for the fact that other groups claim descent from Abraham.

One possibility, to be discussed below, would be to recognize more recent individual rights as having been acquired since the conquest. Another possibility would be to limit those rights simply to those that were exercised (maintenance of the burial site and shrine), and to argue that every right that was not exercised remained in the state. That state is now the Abrahamite State, and the gold belongs to it, subject to obligations that it owes to all the descendants of Abraham to maintain the burial site and, perhaps, the shrine, at least someplace. We will return to this issue after we see what kinds of claims the individuals involved may have.

(3) The suits of Judith, Esther and Sampson and the defenses available to Miriam are all based on the notion that Samuel had something to convey either inter vivos or upon death or both. But did he, and if he did what did he have? Over the centuries, we are told, the site came “the care of a priest of the Abrahamites.” That doesn’t sound like a claim to ownership. At best, it might make the priest a kind of trustee for those who wanted to visit the site and worship in the temple. People made offerings, which the priest pocketed, but there is no suggestion that he exercised a right exclude someone who, say, couldn’t make an offering or chose not to. Things apparently changed with the conquest in 1980, when the current priest, Samuel, now a “resident” rather than a “resident stranger” decided to assert a firmer claim to Machpelah on behalf of his family. The first indication that we have, however, that he did anything different from what had been done in the past is when he executed and recorded the statutory form warranty deed purporting to convey the fee in Machpelah to his three sons. This is the first indication we have of a “claim of right” necessary to found adverse possession under Anglo-American law. But adverse possession against whom? Who is the “true owner” against whom the statute of limitations is being run? We have already seen that the descendants of Ephron are probably out of the picture. If the fee to the property is in the Abrahamite State, then adverse possession probably does not run against it. (Time does not run against the king.) If the fee is in the descendants of Abraham, then is this sufficient notice to them that the priest who has been operating it in their interests is now seeking to establish a title adverse to them? Even assuming that there is a private “true owner” who can be barred, has the statute run? The deed was recorded in 1987. We’re now at the very beginning of 2007. Perhaps, our most urgent piece of advice to the attorney general would be to

– 4 – bring a quiet title action immediately in the name of the Abrahamite State as owner or, alternatively, as the trustee for the descendants of Abraham.

(4) Assuming that some sort of right, if only a possessory right or a right to use, was in Samuel in 1987, what happened to it? Under the statutes in effect at the time, Samuel’s conveyance to H., M. and A. was in the form of a determinable fee, determinable upon their abstaining from strong drink and worshipping the God of Abraham. M. did not so abstain, and A. became an atheist. This was in 1989, before the Abrahamite State passed the statute voiding conditions in deeds that attempted to dictate the conveyees’ life- styles. While it is possible that deed would be interpreted that all three must perform the condition, the fact that this is a tenancy in common cuts against that possibility. Therefore, in 1989, Samuel’s possibility of reverter kicked in as to 2/3 of the property. But the owners of that possibility of reverter were H., M. and A., the intestate heirs of Samuel. The result was to give H. 5/9 of the property (1/3 in his own right and 1/3 of M. and A.’s forfeited shares), with M. and A. each owning 2/9 by way of reverter).

(5) In 1988 (between the events described in (4)), H. executed a will giving all of his property to Sampson. This instrument is ambulatory. Sampson acquired no rights at the time.

(6) In 1990, the Abrahamite State passed a statute, designed to prevent the enforcement by forfeiture of “conditions and limitations are designed to foster a particular land use, frequently one at odds with modern conditions, and/or to compel the owner of the land to adopt a particular life-style, in a way inconsistent with modern conceptions of first-amendment freedoms and of privacy.” Normally, legislation about property rights applies only prospectively, but here it seems clear that the legislature intends that it apply to restrictions created in the past. Retroactive application of legislation concerning property rights raises constitutional issues, but we can avoid the constitutional problem here if we say that the legislation does not apply to conditions and limitations where the triggering event has already occurred and the property rights have changed hands. It seems unlikely that a court would void the transfer of interests that occurred in 1989, as described in (4).

Of course, there was one interest created by Samuel’s deed that was still subject to the limitations in that deed, 3/9ths of the 5/9ths that H. held. Whether the prohibition on drinking and on continuing to worship the God of Abraham fall into the category of “life-style” restrictions is a bit problematical, but they probably do. Mention of the first amendment would certainly suggest as much so far as the religious restriction is concerned. Having voided that, a court is likely go ahead and void the one concerning drinking as well. See below, (7).

(7) In 1993, H. executed a statutory form warranty deed conveying Machpelah (effective to convey whatever rights he had in Machpelah) to Miriam. He did not deliver it to her, however, but put it escrow, with instructions to the escrow agent (Sofer) to give it to Miriam if he, H., predeceased her. While this form of conveyance raises obvious issues as to whether it is void as testamentary, there is a substantial difference between a will and what happened in this transaction. A will is ambulatory. H., however, had passed this deed out of his control. The escrow agent (even though he was H.’s lawyer) was obliged to hand over the deed to Miriam if H. predeceased her. Hence, the effect of the transaction was similar to what would have happened

– 5 – had H. given Miriam a deed similar to that in Abbot v. Holway (a springing executory interest to take effect if H. predeceased Miriam).

The deed was in the form of a fee simple determinable in the event that Miriam married a lawyer. The 1990 statute pretty clearly applies to this condition, and the language of the statute seems fairly clear: “Conditions and limitations in deeds designed to compel the owner of a fee interest in land to adopt a particular life-style are void and unenforceable.” We need not get into the question of what the statute means when it declares certain conditions and limitations to be regarded as “restraints on alienation” and “to be enforced as covenants,” since that language seems to apply only to conditions and limitations that have to do with land use, as this one does not. Whether whom one marries is a matter of ‘life-style’ is a bit more problematical. Restraints on marriage were not favored at common law, but this one is fairly limited. (There are, presumably, many eligible men in the Abrahamite State who are not lawyers.) The only hint that the statute gives as to what the legislature had in mind when it spoke of ‘life-style’ is the phrase “compel the owner of the land to adopt a particular life-style, in a way inconsistent with modern conceptions of first-amendment freedoms and of privacy.” Freedom to marry whom one chooses is not a first-amendment freedom, but it could be regarded as coming with extensive modern notions of privacy.

(8) In 1995, H., M. and A. executed, had acknowledged and recorded an instrument the precise wording of which is highly problematical but the overall intent of which is clear enough. The three tenants in common are attempting to create a joint tenancy. If this instrument is effective, then H. acquired all the rights of Samuel in the property when M. and A. predeceased him in 1999.

But is the instrument effective to achieve this purpose? At common law one seised of property could not create a joint tenancy with himself and another without using a straw man. One cannot deliver seisin to one’s self. This situation is a bit different from the one contemplated by the common law, since all three of these people acquired seisin (assuming that these are interests of which one may be seised) at the same time (though not at the time of the ‘deed’). There’s another problem, however. Joint tenants have to have the same proportional interest, and here, as we have seen in (4), H. had a 5/9ths interest and M. and A. a 2/9ths interest. (The fact that 3/9ths were still arguably subject to a limitation and 6/9ths were not makes the situation even messier.) There is, however, no common-law rule against conveying a future interest to one’s cotenant, and perhaps this is the best way to interpret this ambiguous interest: H., M., and A., being seised as co-tenants of undivided interests of 5/9ths, 2/9ths, and 2/9ths in fee, convey to each other alternative springing executory interests to take effect in the event of their predeceasing the other(s).

Another way to reach the same result is to treat the instrument as contractual. Equity will then the transform the equitable interests created by the contract into legal ones. Consideration may be found in the fact that each co-tenant is giving up something (the inheritance rights in his undivided interest) for something else (inheritance rights in a larger portion if he survives). The problem is made complicated by the fact that H. had already given up a portion of his inheritance rights by his escrow deed to Miriam, but he still retained the inheritance rights if Miriam predeceased him. That is probably enough for consideration.

– 6 – (There are other ways to give effect to this instrument. One might, as some courts have held, simply change the common-law rule about delivering seisin to one’s self, though that does not solve the problem of the fact that the parties had unequal interests. One might also, as did the court that faced with the instrument with this wording, sustain it as a common-law covenant to stand seised (supported by ‘natural love and affection’), passing a use in the remainder to the co-tenants, which was then executed by the statute of Uses.)

(9) In 2004, H. died, and by terms of his will all his estate went to Sampson. The will, of course, would have no effect on H.’s property which was not in his estate, and both the escrow deed and the joint-tenancy agreement, if effective, would take Machpelah out of his estate.

(10) Also in 2004, Miriam had Sofer record the escrow deed (presumably, and one hopes, after he had delivered it to her), and she ceased paying her widowed aunts a share of the profits of Machpelah. These events set up the lawsuits of Judith, Esther and Sampson.

(11) As against Sampson’s claim of ownership under the will, Miriam’s title is dependent on a court’s willingness to relate back the delivery of the deed in 2004 to 1993. This is pretty standard. Relation back is very frequently, perhaps almost universally, applied in order to validate the delivery of a deed when the maker of the deed has died while the deed was in escrow.

That does not, however, give Miriam title to the whole property. As we have seen, H. had only a 5/9ths interest in the property in 1993. In order to give Miriam title to the whole property as against Sampson, the court needs to validate the 1995 instrument (which, as we have seen, is likely) and apply the doctrine of estoppel by deed to transfer to Miriam the pieces of the title that H. acquired in 1999. We’re representing Miriam. This is the argument that we ought to make. We must recognize, however, that this is something of a stretch of the doctrine of relation back. It is one thing to relate back a deed in order to overcome the fact that the maker has died in the meantime. It is another thing to relate it back in order to include within it after-acquired title. Relation back is an equitable doctrine, and a court might be influenced by the fact that Sampson, at least at one time, was trying to ‘do right’ by his illegitimate child. A court might be tempted to say that Miriam got 5/9ths of the property by relation back to 1993, but that Sampson got 4/9ths of it because the 4/9ths that H. acquired in 1999 were in his estate.

(12) That brings us to J. and E. Their claim seems to be precluded by the arguments that we made in (8), that the 1995 instrument was effective, at least to create a future interest in H., which fell in in 1999. There is, however, the fact that H. was paying J. and E. 2/3rds of the profits of Machpelah from 1999 until the time he died. Perhaps this was simply generosity on his part. Neither Miriam nor Sampson has a legal obligation to continue the charitable gifts that their father was making. Perhaps, however, it was more than just generosity. All we have right now is J. and E.’s complaint. Perhaps they have evidence that their continued support was part of the agreement that was made in 1995. In the absence of evidence in writing, this evidence might not be enough to sustain J. and E.’s claim at law, but as in the case of Sampson, Miriam’s defense against her aunts is dependent on the court’s willingness to relate back deed to 1993 and to allow it to include H.’s after-acquired title. Perhaps a court might make Miriam “do equity” by her aunts, to the extent that she is going to get a large

– 7 – windfall. It looks as if there is going to be enough money here to support all four of these people.

(13) Bottom line: Miriam has a strong case, but not an airtight one. Proving it is going to be expensive, and there is some litigation risk. It might be in Miriam’s interest to settle with her aunts and half-brother. The terms of the settlement, of course, are dependant on what the legislature of the Abrahamite State is going to do about the gold, and to that issue we now turn.

(14) The various proposals that attorney general has presented to us seem to be based on the assumption that there is a private interest in the gold of Machpelah outstanding. As we have seen in (2), that is not completely clear. If the Abrahamite State in fact owns the gold of Machpelah, then, of course, it can decide not to mine it. It can condition any grant that it makes of the gold on the miner putting the shrine back in place. (We can consider below the implications of this for any private rights that may exist in the shrine.) And it can give the gold or the profits of the gold to the Canaanites (or anyone else). (Again, we consider the implications of the destruction of the shrine for private rights in the shrine below.) If the state owns the gold, it can do with it what it wants.

Even if the state owns the gold, indeed, even if it has the fee in the whole site, there remains the question whether it owes any obligations to the descendants of Abraham with regard to the shrine. If the source of the state’s title is that they are the public embodiment of the interests of the descendants of Abraham, a court might view the state as holding the property in trust for the descendants of Abraham. Assuming that these trust obligations could be judicially enforced (a large but not totally implausible assumption), a court might hold that simply destroying the shrine and not rebuilding it was not an option. Obviously, a court so inclined would have no problem with a decision not to mine the gold. Destroying but then rebuilding the shrine falls someplace in the middle, but would probably be sustained even by a court inclined to impose trust obligations on the state. Of course, there is another source of possible title in the Abrahamite State, its conquest of the Canaanites. If the Canaanites collectively were determined to own the fee in the property, then the conquest probably transferred those rights to the state.

Even if a court would not intervene, there remains the question whether the attorney general should advise the legislature that it owes trust obligations to the descendants of Abraham, much as it has been argued that Congress must respect native titles even if a court will not enforce them. The question quickly becomes almost indistinguishable from the political arguments that are currently taking place in the Abrahamite legislature. Indeed, the three positions that have been taken in the legislature roughly correspond to the way that one might characterize those obligations. As trustees of the descendants of Abraham the state has an obligation to maintain the site intact and uninterrupted. It is representative of the identity of the people as descendants of Abraham. We might call this the ‘conservative’ position. Alternatively, one might argue that times change. The traditional values must be upheld but not at the expense of opportunity to increase the wealth of the people substantially, so long as in the long run the shrine can be maintained. We might call this the ‘liberal’ view of the obligations of the state to the descendants of Abraham. Finally, one might argue that devotion to the memory of Abraham is divisive in a society that includes both Abrahamites and Canaanites. Destruction of the site and transfer of wealth to the Canaanites in the society is the best way to integrate the society and

– 8 – ensure its long-term health. The best interests of the descendants of Abraham are best served by their forgetting about Abraham. We might call this the ‘secularist’ view of the obligations of the state to Abraham. If the attorney general’s estimate of how the votes in the legislature split on the issue, it looks as if this last view does not command a majority. Two- thirds of the legislature agrees that the shrine should be continued, and there is room for a typical legislative compromise as to how it will be done.

(15) What we have said makes it quite clear that the constitutionality of the various schemes proposed is dependant on how we characterize the private interests that are involved in the site. Samuel and his descendants may or may not have established title by adverse possession or prescription, and this title may be title to the fee in Machpelah and the cave or it may be prescriptive title to a collection of easements with regard to the shrine and access to it. If it is fee title, standard Anglo-American doctrine would also give the private title-holder rights to the minerals underneath the field. See the Edwards cases. If the interests are less than the fee, then title to the gold is in whoever holds the fee, which, as we have seen, may well be the Abrahamite state.

(16) The proposal that mining not be allowed at all on the site is totally non-problematical if all the descendants of Samuel own is a collection of use rights. They don’t own the gold, and not mining it will, by definition, not interfere with the rights that they do have. If they have the fee, the proposal is slightly more problematical but not much more so. They clearly have no “investment-backed expectation” of being able to mine the gold. Prohibitions on mining have been sustained even where that seemed to be the only possible use for the property and even where mining had already been taking place. Goldblatt v. Hempstead. Indeed, it has even been sustained where the mining company had specifically purchased the right to mine in such a way as to cause the very harm that the legislation was designed to prevent. Keystone Bituminous Coal. The only possible counter-argument is that the harm here sought to be avoided is not a traditional nuisance. That fact, however, is outweighed by the fact that a majority of the US Supreme Court has never held such a finding is required, except perhaps (Lucas) in the situation where the property owner has been deprived of all value. That is clearly not the case here. Everything suggests that the shrine can be operated profitably with the gold left in place.

(17) If a total prohibition on mining would not be unconstitutional, then presumably one that allowed mining but required that the shrine be put back in place is even less problematical. Here the cases concerning the maintenance of historic structures show the way. E.g., Penn Central. The legislature might be advised to write the legislation in such a way as to make it more general than simply applying it to Machpelah. There are probably other shrine sites (or archeological sites) to which such legislation might apply. Strip-mining legislation which requires that the site be put back in its pre-mining condition come to mind.

This legislation, curiously enough, is probably more problematical if all that the descendants of Samuel own are use rights in the shrine. In this case, mining would constitute at least a temporary taking of the only right that they have. Compensation might well be required to them for the loss of revenue for the period when the shrine could not be operated. If the right to mine the gold were sold to a private party, that party would have to negotiate with the descendants of Samuel to put them out of business for a time. Either way, the compensation might well be an incentive to an

– 9 – efficient solution. The profits of the shrine represent the value that people put on the shrine. Having to pay the owners of the use rights for the period in which the shrine was out of business would encourage keeping it out of the business for the minimum amount of time necessary to extract the gold.

(18) As already suggested, giving the gold or the profits from it to the Canaanites is non-problematical if the state owns the gold. The state would, however, have to compensate the owners for the loss of the shrine. If it is determined that the descendants of Abraham own the gold, then giving it to the Canaanites could not be accomplished without compensating its owners. That would make no sense, since what the state paid the owners would, presumably, exactly equal the amount that would be paid to the Canaanites. One might as well just pay the Canaanites out of general revenues and not bother with taking the gold. Giving the gold to the Canaanites also raises issues under Kelo, but we need not treat with those issues, because, under these assumptions, it would make no sense to do it anyway.

PART III PROPERTY: SECTION 1 [The story on which this problem is based is found in the twenty-third chapter of the book of Genesis. If you know the story, that won’t do you any harm; if you don’t know the story, everything that you need to know about it is told here. If you do know the story, you probably know something about its subsequent history. Please do not try to fill in the story with what you know of the subsequent history. The Bible reports that the descendants of Abraham did indeed conquer the land in which the cave is located, but they emphatically did not adopt the U.S. constitution or the Anglo-American common law when they did so. Starting from a Bible story, this problem rapidly proceeds into the totally fictional.]

Abraham was a nomad, moving about to pasture his flocks. He eventually came to spend much of his time in an area that came to be called Hebron. It was there that Sarah, his wife of many years, died. As a ‘resident stranger’ in the region, Abraham approached the local residents of Hebron, who were of an ethnic group different from Abraham’s and not nomadic (we will call them ‘Canaanites’),1 asking for a place where he could bury Sarah. The Canaanites, who regarded Abraham as a holy man, agreed that he should be allowed to bury Sarah in one of their burial sites. Abraham then sought permission from the Canaanites to negotiate with one of their number, Ephron son of Zohar, for a burial site in a cave at the end of a field in a place called Machpelah.2 Ephron at first suggested that he would give Abraham the burial site, but Abraham insisted on paying for it. Ephron named quite a high price, 400 shekels, which Abraham immediately paid. The account of the event then tells us that “the field of Ephron in Machpelah … the field with the cave that was in it and all the trees that were in the field, throughout its whole area, passed to Abraham as a possession … in the presence of all who went in at the gate of his city. … Abraham buried Sarah his wife in the cave of the field of Machpelah … . The field and the cave that is in it passed from the Canaanites into Abraham’s possession as a burying place.” Not only was Sarah

1 The Bible calls them ‘Hittites’, but this seems to be a generic term for the residents of the region who were not of Abraham’s group, rather than a specific reference to the Indo-European people who lived somewhat to the north of this area. 2 It is unclear whether Machpelah is the name of the cave, the name of the field, or the name of area in which the cave and field were located. We will regard it as an adequate description of both the field and the cave.

– 10 – buried in this cave, but so was Abraham, his son Isaac and Isaac’s wife Rebecca, and Isaac’s son Jacob and Jacob’s wife Leah.

Many, many years later (we should be thinking of centuries), descendants of Abraham,3 whom we will call ‘Abrahamites’, who now numbered in the thousands, conquered the Canaanites. They were recognized internationally as the legitimate government, and they immediately adopted the U.S. constitution4 and the Anglo-American common law, with all its trappings, vintage, 1980: a statute of frauds, a married women’s property act, a twenty-year statute of limitations on real actions, a statute stating that any deed to two or more grantees not husband and wife is presumed to be a tenancy in common unless the contrary is expressed, a statute abolishing dower and curtesy, a standard race-notice recording statute, and an intestacy statute that divides the property of the deceased one-half to his/her surviving children and one-half to his/her surviving spouse.

Over the course of the centuries preceding the conquest, the field and burial cave at Machpelah had come under the care of a priest of the Abrahamites, who lived in the area but not in Machpelah. The field was not cultivated (although it was suitable for cultivation), but the descendants of Ephron occasionally used it for grazing. They also occasionally visited the tombs in the cave, but the principal visitors to the cave were Abrahamites who lived in the area or who happened to be passing by. The priest maintained the cave as a shrine and collected (and pocketed) the offerings at the shrine. There was a modest structure at the entrance to the cave that was used as a temple. The priest and the visitors to the shrine used the field simply for access to the temple and the cave.

When the conquest occurred in 1980, the current priest of Machpelah, Samuel, decided that it was time to put the relationship of his family to the shrine on a more solid footing. After all, he and the Abrahamites were now the ‘residents’, and the Canaanites had become the ‘resident strangers’. In 1987, he duly executed a statutory form warranty deed, which was duly recorded, conveying Machpelah to his only children, his three married sons who were living with him, Hananiah, Mishael and Azariah. The operative words of the deed were “to Hananiah, Mishael and Azariah and their heirs so long as they shall abstain from strong drink and worship the God of Abraham.”

Samuel died intestate a year later. In 1989, Mishael took to ‘strong drink’ and was rarely seen sober thereafter. The same year Azariah joined the Abrahamite Atheist Society and was not seen at a place of worship again until 1999 when, while attending Mishael’s funeral, he was killed when the portico of the temple collapsed on the head. In 1995, Hananiah, Mishael and Azariah joined in executing the following instrument, which was duly acknowledged and recorded:

We, the undersigned sons of the late Samuel, named and subscribed to this instrument of writing, do enter into an agreement that for the benefit of each and all of us named and subscribed to this agreement and we now the owners jointly of the property conveyed to us by the late Samuel, known as Machpelah, the object of this is that in case 3 Notice it does not say the descendants of Abraham. There are other peoples in the area who claim descent from Abraham and who were not part of the conquering group. 4 Since the area that they conquered is about the size of the state of Delaware, the federal features of the U.S. constitution were not adopted. Hence, the legislature of the Abrahamite State has the powers of the United States Congress and those of a state legislature.

– 11 – that if death should take one of the parties, the other two brothers are owners, and if two are taken by death, then the remaining brother surviving is owner, and in order to carry out faithfully this agreement, we hereunto set our hands and seals and subscribe our names this first day of August, nineteen hundred ninety-five. [I know that this can’t be parsed, but some lawyer wrote it. It was the subject of litigation.]

After 1999, Hananiah, now a widower, operated the shrine alone with the help of his daughter, Miriam, who was twenty at the time of her uncles’ deaths. Miriam was a wonderful lady -- everyone in the community said so. Nevertheless, life passed her by. She had refused her “many” suitors to remain at home with Hananiah. She had assumed that on her father’s death she would own the shrine, but when he died in 2005, a will, valid in form and dated in 1988, was discovered in his personal papers leaving his entire estate to one Sampson. Research of an elementary sort disclosed that Sampson was the product of an illicit love affair of Hananiah’s. Sampson, however, could not be found, and the will was never admitted to probate (a fact that you are to assume is legally irrelevant except as a explanation of how the succeeding events came about). Research also revealed that unbeknownst to Miriam, Hananiah had until his death paid 2/3 of the profits of the shrine (which in some years were substantial) to the still surviving widows of Mishael and Azariah: Judith and Esther, respectively. (Neither Mishael nor Azariah had any children, and both died intestate.)

In 1993, Hananiah duly executed a statutory form warranty deed conveying Machpelah to Miriam. The operative words of the deed were “to Miriam and her heirs, so long as she does not marry a lawyer.” He gave the deed to Sofer, a local lawyer, with instructions that Sofer was to record the deed if he, Hananiah, predeceased Miriam.

Miriam took care of Hananiah during his long illness. His mind was sound until the end, though his disposition did not improve. Out of her meager savings, Miriam maintained the shrine and told the workmen at the shrine that it was hers while Hananiah was living.

After Hananiah died in 2004, Miriam had Sofer record Hananiah’s deed. She ceased the payments to her widowed aunts and decided to see if she could earn enough money from the shrine so that she could get married and take a honeymoon trip around the world. She formed an attachment with Sofer and has recently announced her engagement to him.

One of the visitors to the shrine in 2005 noticed an odd rock formation on the wall of the cave. With Miriam’s permission, he chipped off a bit of it and had it tested. It turned out to be remarkably pure gold. Miriam hired a professional geologist who is convinced that a large seam of gold stretches from the cave under the field of Machpelah. He also is of the view that the gold could not be mined without destroying the shrine, but it would be possible (though expensive) to remove the shrine and the tombs temporarily and replace them after the gold was mined. His estimate is that the gold is very valuable, perhaps worth more than a million dollars.

Somehow word of the discovery of the gold got out. One fine January day in 2007, Miriam opened the door to be greeted by the process-sever who handed her summonses and complaints in the following actions:

– 12 – (1) An action brought by Ephron232, a ‘resident stranger’ in the Abrahamite State, on behalf of himself and the other direct descendants of Ephron son of Zohar. He argues that his ancestor sold Abraham an easement for burial, not the fee in Machpelah. You may assume that Ephron232’s genealogy as a descendant of the original Ephron can be established, and that the account of the sale given above may be introduced into evidence in the case.

(2) An action brought by Judith and Esther, each claiming a 1/3 interest in Machpelah. (A memorandum accompanying the complaint alleges that the 1995 deed is “void as a matter of common law, and no statute has changed that law.”)

(3) An action brought by Sampson, lately returned from the Foreign Legion. (The complaint in this action asks, in the alternative, for immediate possession of Machpelah or for a declaratory judgment that if Miriam marries Sofer title to the shrine will vest in Sampson.)

Of possible relevance to these suits (in addition to the statutes recited above) is the following statute adopted by the Abrahamite legislature in 1990:

The Legislature of the Abrahamite State finds that titles to real property in the state are substantially encumbered by numerous out-of- date conditions and limitations found in older conveyances or derived from pre-conquest customary law. These conditions and limitations are designed to foster a particular land use, frequently one at odds with modern conditions, and/or to compel the owner of the land to adopt a particular life-style, in a way inconsistent with modern conceptions of first-amendment freedoms and of privacy. All such conditions and limitations are hereby declared to be restraints on alienation. Conditions or limitations in deeds that provide for the forfeiture of a fee interest are enforceable only in equity and only as if they were covenants. Conditions and limitations in deeds designed to compel the owner of a fee interest in land to adopt a particular life-style are void and unenforceable.

Miriam realizes that she is in a kind of trouble that is beyond Sofer’s competence. She arranges an international consultation with a large American law firm for which you are working. Dazzled by the prospects of the gold, the firm has agreed to take the case and asks you for a memo outlining the issues raised by the lawsuits and a sketch of possible resolutions.

The firm has also been retained by the attorney general of the Abrahamite State (a representation that you should assume [as is not the case] that the firm can accept without conflict with its obligations to Miriam). The attorney general tells you that the discovery of gold at Machpelah has unleashed a firestorm of controversy. About one-third of legislature believes that the state should pass a law forbidding any mining in the area in order to preserve the shrine intact; about one-third thinks that the mining should take place, but that the legislature should pass a law requiring that the shrine and the site be rebuilt exactly as it is now after the mining has ceased; about one-third thinks that the shrine is nothing but trouble and that the gold should be mined as cheaply as possible (destroying the shrine and not rebuilding it) and the profits given to the Canaanites who are living in the Abrahamite State as a way of buying their good will. The Attorney General wants to know which, if any, of these proposals is likely to be constitutional under the fifth amendment to the Abrahamite constitution,

– 13 – which has exactly the same wording as the fifth amendment to the U.S. constitution, and under what conditions.5 He also would welcome any ideas that you may have as to what a sensible solution might be for the whole problem, both the private lawsuits and the possible statutory interventions.

[A final note: The cave referred to in the Bible is thought to lie under a mosque in the modern city of Hebron, which is in the west bank area of Palestine, currently occupied by Israel. The complexity of the legal situation with regard to it is far greater than anything that we have imagined above.]

5 He also recognizes that he has problems under the first amendment of the constitution, but another member of the firm has been assigned to research those. You may assume that either by interpretation of the constitution or amendment to the constitution no legislative action with regard to the shrine would be precluded on the ground of the religious nature of the shrine.

– 14 –