Lapas attēli
PDF
ePub

domicil, not the lex situs of the land into which he directs his money to be converted. For unless the will is a valid will of the personalty, the conversion into land cannot take place.10

§ 14. Application of Lex Situs to Transactions relating to Movable Property. — It is a general principle of private inter- 7 national law that movable property, such as chattels and choses

Iated with the owner, regardless of their actual locality. These discord, in action, are to be considered in contemplation of law as situ-nearly all. maxim "mobilia personam sequuntur" applies very generally; they now,

so that no matter where the chattels may be actually situated, their legal situs follows the situs of the owner himself.1

R

But if the movables are situated in one State and the owner has his situs in another, transfers may be made by him, the enforcement of which may contravene the interests or policy of the State where the property is situated, or may work a wrong upon its people, or may be contrary to its views of morality. These are the very cases which constitute exceptions to the operation of a proper law. Hence if, under such circumstances, it is attempted to enforce the transfer in the State where the property is actually situated (and such questions will in general arise there) that State becomes the forum, and the lex fori will be substituted for the proper foreign law (the law of the situs of the owner), in accordance with the principles already noticed in discussing these exceptions. It therefore frequently comes about, where there is a litigation over the transfer of movables situated in the State where the suit is brought, that the lex fori, not the law of the owner's situs, will control. Furthermore, in such cases the litigation is almost always based upon one or the other grounds of exception above mentioned, and if the existence of the exceptional circumstances is

10 Post, § 70.

1 The term "lex situs" when applied to movables does not generally mean the law of the legal, but of the actual, situs of the property. For a full discussion of the situs of personalty, and the law governing transactions connected therewith, see post, §§ 120 et seq. The distinction between the actual and the legal situs of the owner will be noted hereafter. Post, §§ 18 et seq. 120 et seq.

2 Ante, §§ 6, 7, 8, 9.

1913

TENT

WRONG 142

established, the law of the actual situs of the personalty will usually prevail over the law of the owner's situs (the proper law).8

But it cannot be too carefully observed that this result is not due to any inherent force of the lex situs of the personalty, as such, but because it is in general also the lex fori. There is, in the last analysis, in respect to personalty, no such thing as the "lex situs," apart from the lex situs of the owner. It is only where the actual situs of personalty is the forum, that it assumes any importance in private international law. In those cases (so numerous as almost to obscure the general rule) where the law of the actual situs of personalty does control, it is because of the effect given to it as the lex fori. Hence, if the litigation takes place in the domicil of the owner, or in any state other than that of the actual situs of the property, the situs and the forum are no longer identical, and the grounds for the enforcement of the lex situs disappear.

These principles have sometimes escaped the attention of the courts and text writers, so that the proposition is frequently stated that "the lex situs controls the transfer of movables."

8 All this will be explained more fully hereafter. Post, §§ 120, 129, 132, 134, 135.

For purposes of jurisdiction movables must always be considered as situated within the territory where they actually are. To hold otherwise would be to impeach the sovereignty of that State over everything within its borders. The point maintained in the text is not that movables may not possess an actual situs apart from the owner, but that there is no such thing as a substantive "lex situs" in such cases, as there is in the case of real property.

See Guillander v. Howell, 35 N. Y. 657. Mr. Wharton takes this position unreservedly. Whart. Conf. L. §§ 298 et seq. In defence of this view he says (§ 299): "If it is the domicil of the owner which is to decide, it becomes a difficult and sometimes insoluble question to determine who this owner is. An action is brought to decide as to the ownership of a chattel. The litigants have different domicils; and if the article in dispute is to be subjected to the owner's domicil, the question as to who is the owner not being yet decided, the suit has to be stopped at the outset from inability to determine how it shall be tried." It is manifest that the case put by Mr. Wharton is not one of substantive law, but of jurisdiction. It is not denied that for such a purpose a chattel has a situs of its own. In no case could a

[ocr errors]

It will do so where the situs is also the forum, provided grounds exist (as they frequently will) for the operation of any of the exceptions already discussed, but not necessarily, nor generally, in other cases.

§ 15. Effect of Transactions completed and perfected under Proper Law not generally altered by Subsequent Change of Situs. Before concluding the discussion of these general exceptions to the operation of a proper law, it will be well (even though we must anticipate some general principles) to call attention to a point which will often necessitate some modification of the propositions laid down in the preceding sections.

Courts will be reluctant (though they will not always refuse) to apply these exceptions to a transaction which has been validly entered into under its proper law, and has, under that law, been once valid as against the entire world, merely because, by some subsequent change of situs, the transaction has come under the dominion of the law of some other State, which renders it void or voidable. In such a case the courts of the forum will not so readily substitute the lex fori for the proper law, and will usually refuse to do so altogether, except in those cases where the lex fori is expressly prohibitory of the enforcement of such transactions, even when entered into abroad, or unless the policy of the forum or the possible injury to its people is of the most pronounced character.1

judgment for a specific chattel be given in any other State than that wherein it is actually situated, for the judgment is in rem, and the court must have jurisdiction over the res. But it is one thing to say that the courts of the actual situs alone can have jurisdiction to determine the title to a chattel, and quite a different thing to say that, having jurisdiction, they must determine that question in accordance with their own substantive law, or to say that the courts of another State in which the validity of such title comes collaterally into question must be governed by the law of the actual situs. See Mason v. Beebee, 46 Fed. 556.

1 See Kanaga v. Taylor, 7 Ohio St. 134, 70 Am. Dec. 62; Hornthall v. Burwell, 109 N. C. 10, 13 S. E. 721; Thuret v. Jackson, 7 Mart. (La.) 318; Langworthy v. Little, 12 Cush. (Mass.) 109; Bank v. Lee, 13 Pet. 107; Edgerly v. Bush, 81 N. Y. 199; Miller v. Miller, 91 N. Y. 315; Phillips v. Gregg, 10 Watts (Penn.), 158, 36 Am. Dec. 168; Barker v. Stacy, 25 Miss. 477;

One of the most prominent instances of the application of this principle occurs in the case of qualified transfers of movable property, for example, a chattel mortgage, where the chattels mortgaged are situated at the time in the place of transfer, but are subsequently removed to another State, by whose laws the mortgage is invalid as against creditors of the mortgagor, though valid as against the world by the law of the State where the mortgage was executed and the chattels were at the time situated. In such case, the transaction has been completed under the law of the first State, all the requirements of its law (the "proper law" at the time) have been complied with, and the parties have been vested with a perfect title, not only as between themselves, but as to third parties. This title should not be divested merely by reason of the fact that the chattels thus transferred are subsequently brought under a new jurisdiction, at least if this be done without the consent of the mortgagee.

8

Thus, in Kanaga v. Taylor, the plaintiff sold a piano in New York to G, who there executed a chattel mortgage upon it to secure the unpaid purchase money. The mortgage was recorded in New York as that law directed, and was there valid

Wood v. Wheeler, 111 N. C. 231, 16 S. E. 418; Cummington v. Belchertown, 149 Mass. 223, 227, 21 N. E. 435; Crapo v. Kelly, 16 Wall. 610, 622; Pond v. Cooke, 45 Conn. 126, 29 Am. Rep. 668; Chicago, etc. R. R. Co. v. Packet Co., 108 Ill. 317, 48 Am. Rep. 557; Cagill v. Wooldridge, 8 Baxt. (Tenn.) 580, 35 Am. Rep. 716; Richardson v. Shelby, 3 Okl. 68, 41 Pac. 378; Craig v. Williams, 90 Va. 500, 505; Bank v. Hill, 99 Tenn. 42, 41 S. W. 349; Handley v. Harris, 48 Kan. 606, 29 Pac. 1145; Stirk v. Hamilton, 83 Me. 524, 22 Atl. 391; Ames Iron Works v. Warren, 76 Ind. 512, 40 Am. Rep. 258. 2 See post, § 132; Kanaga v. Taylor, Ohio St. 134, 70 Am. Dec. 62; Handley v. Harris, 48 Kan. 606, 29 Pac. 1145; Hornthall v. Burwell, 109 N. C. 10, 13 S. E. 721, 722; Thuret v. Jackson, 7 Mart. (La) 318; Craig v. Williams, 90 Va. 500, 505; Crapo v. Kelly, 16 Wall. 610, 622; Bank v. Lee, 13 Pet. 107; Langworthy v. Little, 12 Cush. (Mass.) 109; Edgerly v. Bush, 81 N. Y. 199; Martin v. Hill, 12 Barb. (N. Y.) 631; Barker v. Stacy, 25 Miss. 477; Cagill v. Wooldridge, 8 Baxt. (Tenn.) 580, 35 Am. Rep. 716. But see Corbett v. Littlefield, 84 Mich. 30, 47 N. W. 581. It is otherwise if the transaction be not completed before the removal of the goods. Cronan v. Fox, 50 N. J. L. 417, 14 Atl. 119.

87 Ohio St. 134, 70 Am. Dec. 62.

as against the world. G afterwards carried the piano to Ohio and pledged it to M to secure a loan. The New York mortgage was not recorded in Ohio, and M (a resident of Ohio) had no notice of the incumbrance. M sold the piano to the defendant, who was also a citizen of Ohio, and who knew nothing of the New York lien. Though the law of Ohio requiring the recordation of chattel mortgages was not complied with, the court held the plaintiff's claim to be paramount.

The same principle has been applied in regard to the title of receivers and assignees for the benefit of creditors. If such title has once been fully perfected under the proper law as against the world, a subsequent removal of the chattels to a State by whose law the title of the receiver or assignee would not be good against creditors, will not divest the title once vested.*

Б

In Pond v. Cooke, a manufacturing corporation in New Jersey had contracted to build a bridge in Connecticut. The corporation became insolvent and a receiver was appointed by a New Jersey court, who purchased iron with the funds in his hands and sent it on from New Jersey to Connecticut to complete the bridge. Connecticut creditors of the corporation attached the iron after it reached that State. But the Connecticut court dismissed the attachment on the ground that the receiver's title to the iron was complete as against all persons in New Jersey, where he was appointed and first held possession of the iron, and that the title once thus fully vested in him should not be divested by merely sending the goods to another State.

But it must be remembered that this principle is applicable only in those cases where the transaction is perfected and com

4 Pond v. Cooke, 45 Conn. 126, 29 Am. Rep. 668; Chicago, etc. R. R. Co. v. Packet Co., 108 Ill. 317, 48 Am. Rep. 557; Cagill v. Wooldridge, 8 Baxt. (Tenn.) 580, 35 Am. Rep. 716; Crapo v. Kelly, 16 Wall. 610, 622; Cook v. Van Horn, 87 Wis. 291, 50 N. W. 893; May v. Wannemacher, 111 Mass. 202, 209; Bank v. Hill, 99 Tenn. 42, 41 S. W. 349. But see Walworth v.

Harris, 129 U. S. 355; Donald v. Hewitt, 33 Ala. 534, 73 Am. Dec. 431. In

both these cases the lien was imposed by law, not by agreement.

* 45 Conn. 126, 29 Am. Rep. 668.

« iepriekšējāTurpināt »