unmentioned interest after maturity. But if the rate of interest legally agreed upon before maturity is that of the place of performance, the latter law will govern interest falling due after maturity.

5

6

In Scotland County v. Hill, a Missouri county issued bonds payable in New York, with coupon notes attached representing interest, also payable in New York. The contract was silent upon the point whether or not the coupon notes should themselves bear interest. It was held that the New York law (lex solutionis), not that of Missouri, should govern as to the charging of interest upon the coupons after maturity.

If a judgment be obtained in one State upon a contract to pay money in another, it should be observed that while judgment will be given for the principal sum due, with interest computed according to the law of the place where the contract is payable, yet interest upon that judgment, if unpaid, will be computed in accordance with the law of the place where the judgment is rendered, so far as the courts of that State are concerned." But if an action is brought in another State upon such judgment, it has been held that interest will be allowed thereon according to the law of the latter State (lex fori), whether or not the judgment sued on specifies the rate of interest it is to bear.

8

In conclusion, it must be noticed that no question of usury or of invalidity can ever arise upon a contract where no specific rate of interest is agreed upon. In such cases interest is allowed according to the lex solutionis, even though the contract might have been declared usurious and void if the same

4 Cromwell v. County of Sac, 96 U. S. 51.

5 Coghlan v. R. R. Co., 142 U. S. 101.

132 U. S. 107.

7 Scotland County v. Hill, 132 U. S. 107.

8 Clark v. Child, 136 Mass. 344; Wells, Fargo, & Co. v. Davis, 105 N. Y. 670; Neil v. Bank, 50 Ohio St. 193, 33 N. E. 720. And this would seem to be correct upon principle, at least in those cases where the interest upon the first judgment by the law of its situs is greater than that authorized by the lex fori; because the charge thus created is imposed upon the defendant in invitum, and hence the foreign law under which it is claimed should not be given exterritorial force. This is not to deny "full faith and credit" to the foreign judgment.

rate of interest had been expressly agreed upon, provided the arrangement is not merely a cloak for usury.9

§ 185. Covenants and Contracts touching Land.—With respect to the proper law governing the obligations incurred upon covenants of title and the like, contained in deeds of conveyance of land and upon contracts relating to or affecting real estate, much diversity of opinion exists. The disturbing ele ment is found in the influence to be given in such cases to the lex situs of the land.

Here also the chief difficulty lies in ascertaining the locus solutionis of the covenant or contract. Thus, a deed containing covenants is made in one State, conveying land situated in another. It does not necessarily follow that the covenant is to be performed where the land lies, even though it affects the title to the land. If such a deed contains a covenant to repair or to pay taxes, or to do any other act which must be done where the land lies, its locus solutionis is clearly the situs of the land. But if we suppose a covenant of title, as that the grantor is seised in fee, or that he has full power to convey the land in fee, it is not easy to say whether such a covenant is to be performed where the land lies or is to be performed generally, that is, where the covenant is made. The question is of importance, since the obligations incurred by the covenantor will depend upon the lex solutionis. The better opinion seems to be that the lex situs of the land should govern, so far as covenants of title running with the land are concerned, since the grantor must be presumed to be acquainted with that law as well as his own, and to hold otherwise would tend to make the title to the land uncertain.1

Peck v. Mayo, 14 Vt. 33, 39 Am. Dec. 205. For the "proper law" governing the rate of exchange in respect to foreign contracts, the reader is referred to the lucid discussion in Mr. Justice Story's great work. See Story, Confl. L. §§ 308 et seq.; Greenwald v. Freese (Cal.), 34 Pac. 73.

1 Succession of Cassidy, 40 La. Ann. 827, 5 So. 292; Kling v. Sejour, 4 La. Ann. 128; Riley v. Burroughs, 41 Neb. 296, 59 N. W. 929; Fisher v. Parry, 68 Ind. 465; Tillotson v. Prichard, 60 Vt. 94, 14 Atl. 302, 308. In Indiana, the doctrine is that the lex celebrationis of the covenant is also the lex solutionis, and must control. See Worley v. Hineman, 6 Ind. App. 240, 33 N. E. 260; Cochran v. Ward, 5 Ind. App. 89, 29 N. E. 795, 796; Jackson

8

In Riley v. Burroughs,' a deed was made in Nebraska to a tract of land in Iowa, containing a covenant against incumbrances. There had been several prior conveyances of the land, each containing the same covenant, and all the time there had been some unpaid taxes outstanding which constituted a lien on the land. The owner of the land sued a remote grantor for the breach of the covenant. By the law of Nebraska such a covenant was personal only, and none but the immediate grantor could be sued for its breach. By the law of Iowa it ran with the land, and a remote grantor might be sued as well as the immediate grantor. It was held that the law of Iowa should prevail. In Succession of Cassidy, Henry Cassidy sold in Louisiana certain lands situated in Texas, with covenants of general warranty, to Horace Cassidy, who sold them in Texas with like covenants to the plaintiffs. By the law of Louisiana suit could be brought upon such covenants only against the immediate grantor, bringing in remote vendors as parties. In Texas, the common law prevailed, by which a suit might be brought upon a breach of covenant of title against any grantor in the chain of title. Suit was brought in Louisiana by the plaintiffs against the estate of Henry Cassidy, they having been evicted by title paramount. Upon the first hearing, the court decided that the Louisiana law should govern, since the matter related to the remedy. But upon a rehearing, it was held that the Texas law should prevail, as it was a matter relating to the obligation of the contract.

That the lex situs of the land will also govern the obligation of a contract to convey the same, the contract being made in another State, can hardly admit of doubt, for the situs of the land is necessarily the ultimate locus solutionis of the contract to convey it; and by that law the measure of performance must be regulated.

The right of one who contracts with another to build or fur

v. Green, 112 Ind. 341, 14 N. E. 89; Bethell v. Bethell, 54 Ind. 428, 23 Am. Rep. 650.

241 Neb. 296, 59 N. W. 929.

See Garden City Sand Co. v. Miller, negie v. Morrison, 2 Met. (Mass.) 381, 398.

40 La. Ann. 827, 5 So. 292. 157 Ill. 225, 41 N. E. 753; CarThis inquiry must not be con

nish materials for the latter, to take out a mechanic's lien upon the latter's houses or lands, is not a part of the obligation of the contract, but is an incident annexed by law to the act of building or furnishing materials for another. Hence, if a mechanic's lien is validly created according to the lex situs of the land, it is immaterial that the contract of which it is the outcome is subject to a different law."

§ 186. Interpretation of Contracts. In ascertaining the obligation of a contract (excluding matters of validity), the important point, as we have seen, is to ascertain the intention of the parties. If the contract is silent with respect to certain obligations of the parties, and they have neither expressly nor impliedly indicated any law by which they intend those matters to be regulated, the general rule is that the law of the place where they propose to act under the contract shall determine what they must do in performance thereof.

We now come to an examination of the law that should control in those cases where the parties have foreseen a certain contingency, and have attempted in their contract to provide for it, but in doing so have used language susceptible of different interpretations in different States or countries. It is immaterial whether the ambiguous terms are technical legal phrases or belong to the ordinary language of the people, or whether the differences of meaning are due to the laws or to the customs of the several States. The result is the same; the parties have used terms which have one meaning in one State and a different meaning in another. The question is which meaning

shall be attached to the words used.

fused with that touching the proper law regulating the formal validity of such contract or the capacity of the vendor to enter into it. With respect to these matters, it is believed that the proper law will depend upon whether the contract is treated as an equitable conveyance of the land, or merely as an ordinary personal contract, a breach of which is to be compensated in damages. If the former, the lex situs of the land should govern; if the latter, the lex celebrationis of the contract. Ante, §§ 12, 174. See Polson v. Stewart, 167 Mass. 211, 45 N. E. 737.

5 U. S. Investment Co. v. Windmill Co., 54 Kan. 144, 37 Pac. 982; Camp. bell v. Coon, 149 N. Y. 556, 44 N. E. 300. The lex situs will regulate all charges and liens upon real estate. Ante, § 12.

The same principles control in this case as are applied in ascertaining the implied obligations of the contract, for the design of the inquiry is the same in both cases, namely, to discover what the promisor has contracted to do.

If the parties expressly refer to the law or usage of a particular State as a guide to ascertain the meaning of the terms they have used, whether that State be the locus celebrationis or the locus solutionis of the contract or a third State, such law or usage becomes part of their contract. So it is also if the surrounding circumstances clearly point to the law or usage of some particular State as in the minds of the parties, though they are silent on the subject themselves.1

But if the parties have not thus expressly or by implication indicated the law or usage of any other State as the guide to their meaning, the locus solutionis of the contract will be looked to, just as it would be if the implied obligations of the parties were in question, and for the same reason; because, in the absence of evidence of other intent, the parties must be presumed to have in mind for the purpose of performance the law and usage of the place of performance. Slight evidence of a different intent may suffice however to alter this rule, and to cause the lex solutionis to yield to some other law as the guide to the parties' intention; and the evidence may be circumstantial as well as direct.

Thus, it is a general rule that the language used in a life insurance policy, designating the beneficiary (subject to statutory or charter restrictions as to who may be designated), is to be regarded as the language of the assured alone and is to be treated as of a testamentary character, receiving as nearly as possible the same construction as if used in a will under the same circumstances. Hence the phrase "heirs" or "heirs at law," etc., in a policy of life insurance is to be construed, in the absence of evidence of a contrary intent, in accordance with the lex domicilii of the assured, though the insurance contract is entered into or payable in another State, by whose law such terms would be given a different meaning."

1 Dicey, Confl. L. 57–59.

2 Knights Templar Association v. Greene, 79 Fed. 461; Northwestern