terminology here adopted be either concurrently legal and equitable or exclusively equitable.47

An attempt on my part to formulate for my own satisfaction the argument of my learned friend into a series of definite propositions has yielded the following result. I have reached it by considering both the general trend of his article and particular phrases used at different points in it. Except where quotation marks are used, the phraseology is mine. I can only hope that it does not misrepresent in any material way what he has said.

1. “An equitable ownership" or "an equitable title" is “an equitable right" with a correlative "equitable obligation."

2. Every "equitable right" is "primarily personal," i. e., it has the "fundamental" or "essential characteristic" that "it binds primarily a particular person, and binds others only when their relation to that person is such that in conscience they should be subject to his duties." 48

3. Not only do all "equitable rights" have this characteristic, but every "right" which has this characteristic is "equitable, not legal," no matter in what court it is recognized and sanctioned.49

4. The "right" or "ownership" of an assignee of a chose in action has this characteristic and is therefore "equitable, not legal" even though now fully recognized and sanctioned by courts of law.

It

It is apparent that to Professor Williston "rights" are either legal or equitable. The conception of "rights" as concurrently legal and equitable seems to have no place in his analysis.50 will at once be seen that we are dealing, in part at least, with a question of terminology. However, this difference in terminology is not merely a question of choosing one rather than another of a number of non-significant labels, any one of which would serve the purpose equally well. Behind terminology lie concepts; behind confusion in terminology lies confusion in concepts.

As Professor Williston himself says:

47 Possibly it might be exclusively legal if it had the "fundamental characteristic❞ described but were recognized and sanctioned only in a court of law.

48 30 HARV. L. REV. 97.

49 This seems to be the fair meaning of Professor Williston's argument, although I think it is not expressly stated.

50 This, although not explicitly stated, seems fairly to be inferred from the whole argument and such phrases “as legal in antithesis to equitable" (30 HARV. L. Rev. 97) and similar statements.

And more than

"Words have their importance. If wrongly used, wrong ideas are sure to follow, and wrong decisions follow wrong ideas. one court has been led into the error of holding.

" 51

Undoubtedly the really important difference between my learned critic and myself is in the matter of fundamental jural concepts. It is because Professor Williston does not recognize that rights and other jural relations may be at the same time both legal and equitable that he fails to see that to say that a right is legal is not necessarily to say that it is exclusively legal and so not equitable. As I have tried to show above, his misunderstanding of my conclusions is due in part to this antithesis between legal and equitable "rights" (jural relations) which seems ever to be present in his mind. The same cause leads him to say that the courts of law, when they came to sanction fully the ownership of the assignee, did so, "still recognizing... that his ownership was equitable, not legal."52 The only opinion which he cites in support of that proposition is that in Winch v. Keeley.53 All that was there said, however, was that the common law now recognized and enforced rights which were formerly enforceable only in equity, i. e., the opinion recognized that the assignee's "rights" were equitable. It did not state that they were not also legal, and the plain truth of the matter seems to be that in any natural meaning of the terms they are both legal and equitable and not exclusively equitable.

In other words, Professor Williston has two terms - legal and equitable -to express two supposedly mutually exclusive funda

"1 "The Repudiation of Contracts," 14 HARV. L. REV. 425.

"If terms in common legal use are used exactly, it is well to know it; if they are used inexactly, it is well to know that, and to remark just how they are used." JAMES BRADLEY THAYER, PRELIMINARY TREATISE ON EVIDENCE, 190.

"This does not mean that the effort for clear thought and exact statement can be relaxed. Rather the contrary; for the very breadth of the subject has made it easy to hide confusion of thought behind ambiguous and question-begging phrases." Dean Ezra Ripley Thayer, 27 HARV. L. Rev. 318.

"The student of Jurisprudence is at times troubled by the thought that he is dealing not with things, but with words, that he is busy with the shape and size of counters in a game of logomachy, but when he fully realizes how these words have been passed and are still being passed as money not only by fools and on fools, but by and on some of the acutest minds, he feels that there is work worthy of being done, if only it can be done worthily." JOHN CHIPMAN Gray, Nature and Sources of Law, viii.

62 30 HARV. L. REV. 99.

1 T. R. 619 (1787). See the passage quoted in 30 HARV. L. REV. 99, n. 3.

mental concepts. In his analysis, these two concepts cover the whole field; there is no room for a third. In the analysis which I am following, there are three fundamental concepts and three terms which correspond to them — exclusively legal, exclusively equitable, and concurrently legal and equitable.

Let us now examine the truth of the propositions in which I have attempted to summarize the fundamental parts of Professor Williston's argument. The first and second treat "equitable ownership" as an "equitable right" or "obligation" "primarily personal." This is, of course, the view maintained by the late Dean Ames, by Maitland, and others. To discuss it adequately would require far more space than can be given to it here, and a few words must suffice to indicate what to the present writer seems to be its fundamental weakness, viz., that it is based upon a totally inadequate analysis of the fundamental jural relations involved in "ownership," whether the latter be concurrently legal and equitable or exclusively equitable.

Professor Williston's similar statement that "legal ownership is conceived fundamentally as a right good as against all the world" shares the same weakness. All statements of this kind which describe ownership merely as a right ignore totally the complex character of the jural relations involved. For the sake of simplicity, let us consider so-called "legal ownership" 54 first. A., for example, owns a chattel, free from any legal or equitable claims. It requires only a slight consideration to see that to say that A. has a right is insufficient. In the first place he has, not one right, but many rights. Commonly we express this by saying that he has a right in rem, but that expression is misleading unless very carefully defined.55

"This is of course concurrently legal and equitable where the property is owned absolutely, i. e., not held in trust.

55 The briefest consideration shows that we are dealing not with one right but with a multiplicity of rights, actual and "potential," meaning by the latter term that only a portion of the operative facts necessary for the existence of an actual right which can be violated are as yet in existence. Consider, for example, the situation in Rylands. Fletcher, L. R. 3. H. L. 330 (1868). If (as, apparently, later decisions show) the rule applies only as between neighboring landowners, what is the situation before the water has been collected on the land? The right to have it kept off is potential, but becomes actual as soon as it has been collected. Whatever this right may be called, it is a part and only a part of a complex aggregate of rights which the land owner has. Consider the rights of the owner of a sheep. If no one in the jurisdiction owns a dog, it is difficult to conceive of the owner of the sheep as having an actual right against anyone

In addition, however, he has many privileges,56 powers 57 and immunities.58 If the so-called "legal ownership" is a genuine ownership, all the jural relations that are legal are also equitable, i. e., concurrent. A complete analysis would show also that the complete ownership of the flock of sheep includes also jural relations exclusively equitable.59 If we should modify Professor Williston's statement concerning "legal ownership" so as to make it read that "legal ownership" is conceived fundamentally as including a right "good against all the world" 60 it would be nearer the truth. The particular "right" Professor Williston seems to have in mind here is the "right" to recover the chattel from anyone into whose hands it may come. Even then as applied to chattels it would not be true in the original home of the common law, for the chattel could not be recovered from a purchaser in market overt. Nor would it be true of "legal ownership" of real estate acquired under an unrecorded deed in jurisdictions having recording acts.61

It must not be overlooked that in the cases just discussed the "legal owner" of the chattels or land has other "rights" which are "good against all the world." If, for example, the sheep have been stolen by a thief, the right of the owner to immediate possession will support an action of trover for the conversion of the sheep that dogs shall not injure the sheep. As soon as a number of persons do have dogs, however, and know of their propensity to injure sheep, the rights against such persons are actual; but as against all others in the jurisdiction, the owner's rights are potential. All of these rights are only a small part of the so-called right in rem. Consider another case. When A. is in New York and B. in Buffalo, can we say that A. has an actual right not to be assaulted by B.? Or must we say that the right is only "potential" until the physical possibility of a battery arises? It is not intended to answer these questions at this time, or to do more than to point out how superficial and misleading the present analysis and classification of rights into rights in rem and rights in personam really is. It is to be hoped that soon someone will give us a more careful analysis as well as a more scientific terminology.

❝ For example, the privilege to do all kinds of acts by way of using the chattel, selling it, mortgaging or pledging it, giving it away, etc., etc.

57 For example, to transfer title by delivery, by deed; to pledge the chattel, or to mortgage it, etc., etc.

58 For example, no one else has the power to transfer the ownership unless empowered to do so by appointment as agent or under valid execution process, etc.

59 For example, the power to give an equitable mortgage without creating any legal interest.

• Of course no right is good against "all the world." It may be good against an indefinite number of people or people generally. See the discussion in my article in 15 COL. L. REV. 40–44.

See the discussion of the recording act cases, infra, n. 87.

against anyone who steals them from the first thief, or who takes by gift from the first thief, etc.

From all this we may conclude that "legal ownership" must be conceived of as a complex aggregate of rights and other jural relations, and that the "right" which my learned critic apparently has in mind, viz., to recover the chattel or land from persons into whose possession it has come, need not be good "against all the world" in order that the ownership be "legal." It seems clear that whoever disputes the last statement must be prepared to maintain that legal ownership of chattels never existed in England and that it does not exist to-day in the case of land under the recording acts.62

Referring now to Professor Williston's statements as to "equitable rights," is it really true to-day that the essential characteristic of "an equitable right" is that it is "primarily personal," i. e., "binds primarily a particular person"? However true this may have been historically, does such a statement adequately describe the law of to-day when, as Professor Williston himself points out, "an equitable right" or "ownership" which is recorded includes "rights good against all the world" and may be "much more comprehensive" than "legal ownership?"63 Apparently Professor Williston is willing to maintain that it does, arguing that "the same result" is reached by law and equity but by different roads.64 If, as my learned critic seems to admit, the jural results at law and in equity are identical, it is difficult to see how the "rights" of "equitable ownership" can be fundamentally different in their essential characteristics from those of "legal ownership." Moreover, as the learned author himself says, the reasons why "equitable rights" are available against particular persons or groups of persons are in the last analysis the same as those which lead us to make "legal rights" available against the same persons.

65

66

62 There are many statutory modifications of "legal ownership" which apply the doctrine of innocent purchase for value so as to limit still farther "legal ownership" in ways unknown to the common law. Examples are found in the Factor's Acts, Uniform Bills of Lading Act, Uniform Warehouse Receipts Act, etc.

65 I do not intend either to deny or admit the truth of the admission that the re"the same," i. e., identical. It is too large a subject to treat here.

sults are

66 Doubtless the reasons which actually influenced courts of equity to establish the doctrines in question were not those which we to-day give as their justification.