JD Advising Simulated MBE Quiz
1. A local bartender owns Blackacre, which is an undeveloped piece of property next to his bar. On March 1, the bartender conveyed Blackacre to an investor who paid value and wanted to build an apartment complex on the property. The investor did not immediately record his interest. On April 1, the bartender sold the still undeveloped Blackacre to his son. The son did not know about the conveyance to the investor. The son immediately recorded the deed. On May 1, the investor recorded the deed and had a construction company start digging on the site. On June 1, the son sold Blackacre to his friend. On July 1, the bartender died. His will left Blackacre to his brother, who immediately recorded the deed. On August 1, the friend recorded his deed. The jurisdiction has a race-notice recording statute.
In an action to quiet title, who will have priority rights to Blackacre?
(A) The investor.
(B) The son.
(C) The friend.
(D) The brother.
Check The Answer Here!
(C) is the correct answer. When faced with a priority battle for ownership of land, the common law rule is “first in time, first in right.” State-enacted recording statutes have the power to change that result. A race-notice recording statute protects subsequent bona fide purchasers for value who take without notice and are the first to record. There are three types of notice: actual (the grantee has actual knowledge of a prior interest, resulting from, for example, someone telling him about it), inquiry (circumstances are such that the grantee should have investigated whether there was another interest in the land), and record (a prior interest is recorded in the chain of title). The shelter rule protects grantees that take from those protected by the recording statute, even if they themselves would not be protected.
If you get to a question with complicated facts like this, it is helpful to jot them out:
- 3/1 B –> I (BFP. No rec)
- 4/1 B –> S (BFP. Records)
- 5/1 I Records
- 6/1 S –> F (BFP. No rec)
- 7/1 B –> Brother (not BFP. Records)
In this case, the investor was the first to receive a conveyance. However, he did not record immediately. The son was next to receive the property. The son took for value, there are no indications in the facts that he had any notice of the prior conveyance, and he recorded before the investor. Therefore, the son holds priority over the investor. The son then conveyed his interest to his friend. The friend did have at least inquiry notice of the interest of the investor, as the property was undergoing construction. Although the friend had notice, he is still protected under the shelter rule, as he took from someone who was protected by the recording statute. Therefore, the friend holds priority over the investor. Note: the investor recorded outside of the chain of title so the friend would not have record notice of the investor’s deed.
Bar Exam Tip: If you see someone’s act of recording (“rec”) out of place (e.g., it is not by the conveyance to him—it is after the B –> S transaction) then it is outside of the chain of title!
If you struggle with the shelter rule, remember the purpose of it. The purpose is not to protect the friend in this case. The purpose is to protect the son, who did everything right under the statute and so who should be allowed to do whatever he wants with the land, including selling it to his friend who may have notice of the investor’s interest.
The brother was last to receive a conveyance but is not protected by the recording statute for many reasons. The brother did not pay value for the property and had notice of a prior interest. He is not protected by the recording statute. Accordingly, the friend has priority over the brother.
(A) is incorrect because the investor did not record before the son. The son is protected under the recording statute, and his conveyance to his friend then makes the friend protected under the shelter rule.
(B) is incorrect because the son conveyed his interest away.
(D) is incorrect because the brother was not a bona fide purchaser for value who took without notice and is therefore not protected under the recording statute.
2. A woman hired a driver to drive her across town to her sister’s house. The driver negligently failed to pay attention to where he was going and drove in the opposite direction of the sister’s house. By the time the driver realized his error, it was too late to drive the woman back home. Thus, the driver paid for the woman to stay in a hotel room for the night. While the woman was dining at the hotel that evening, a man pickpocketed the woman’s expensive pair of glasses out of her purse.
The woman sued the driver for the value of the glasses. Should she prevail?
(A) Yes, since the driver negligently failed to pay attention to where he was going.
(B) Yes, so long as the woman was not negligent in failing to notice the driver was going the wrong way.
(C) No, since larceny is not a foreseeable result of the breach by the driver.
(D) No, since the act of larceny was committed by a third person, not the driver.
Check The Answer Here!
(C) is the correct answer. Here, the issue is: is the driver liable for the value of the glasses due to his negligence? The elements of negligence are: duty, breach, cause, and harm. The plaintiff needs to show that all four elements are present in order to prevail on a negligence claim.
Did the driver have a duty to pay attention to where he was going when he was driving? Yes.
Did the driver breach his duty? Yes.
Was the breach of duty an actual cause of the harm (or would the harm have occurred anyway)? Yes, it is an actual cause. The glasses would not have been stolen if the driver had not drove the wrong way because the woman would not have stayed at the hotel.
Was the breach of duty a proximate cause of the harm? Was this harm a foreseeable result of not paying attention to where one was going when one was driving? Likely not! There are many foreseeable results (i.e. she could be late to an important event), but this is not one of them.
Did the woman suffer harm? Yes, the value of the glasses.
Because the woman will not be able to prove that all of the elements of negligence are met, she will not prevail.
(A) is incorrect. While the statement may be true factually, remember that just because a person is negligent does not mean that the person is liable for everything that happens as a result of that negligence.
(B) is incorrect. Foreseeability is still a missing element.
(D) is incorrect. One can still be liable for harm caused by third parties if it was a foreseeable result of one’s negligence.
3. One snowy day, a woman drives her car into her neighbor’s mailbox. The neighbor sues the woman for negligence. The woman wants to offer evidence that she is an extremely careful person into the record. The neighbor objects.
How will the court rule on the neighbor’s objection?
(A) It will be overruled because the defendant may open the door to character evidence.
(B) It will be overruled because habit evidence may be offered in a civil case.
(C) It will be sustained because it is impermissible character evidence.
(D) It will be sustained because it is prejudicial to the neighbor’s case.
Check The Answer Here!
(C) is the correct answer. Character evidence may be permissibly admitted into evidence in three ways:
First, it may be admitted to prove a witness’s bad character for truthfulness only to impeach the witness. (This is an impeachment category. This is not applicable because the woman is not trying to impeach herself.)
Second, in a civil case, character can only be used when it is an essential element of the case. This comes up in three scenarios: (i) negligent entrustment or hiring, (ii) defamation, and (iii) child custody. That is it. There are many reasons for this. Some scholars think allowing character evidence in a civil case would distract from the main issue of a case and permit the trier of fact to reward the good man and punish the bad, despite what the evidence says. Other scholars say it would substantially increase the amount of mental examinations if character evidence were expanded into areas of psychiatric evaluation and testing. It would also significantly extend the length of trial. So, remember character evidence is only allowed in very limited circumstances in a civil case.
Third, in a criminal case, if character evidence is used it has to be offered by the defendant using reputation or opinion. The prosecution can then rebut with reputation, opinion, or impeaching the defendant’s character witness with specific acts. So, in a criminal case, the defendant must “open the door.” The FRE allows the defendant to “open the door” in criminal cases if he or she so chooses because the defendant has so much at stake. Indeed, he has his life and liberty at stake (unlike a civil case where only money is at stake).
Here, the character evidence is not being used for impeachment so it does not fall into the first category. It is not a criminal case so it does not fall into the third category. This is a civil case, and the character evidence does not fall into one of the three scenarios above (negligent entrustment or hiring, defamation, or child custody) so it cannot be used.
(A) is incorrect because this is not a criminal case.
(B) is incorrect because this is not habit evidence. (Habit evidence is a regular response to a particular set of circumstances—i.e., “Mary takes the stairs two at a time.”) Here, she is trying to describe her driving habits generally.
(D) is incorrect because it would otherwise be considered relevant evidence that is not overly prejudicial. However, character evidence is excluded from civil cases.
