of the land reigns. No other law, either as to the transfer or control of property, is to intrude.1 brances adjudicated by lex rei sitae. § 281. (e.) A person, as is argued with great force by Savigny, when purchasing property whose situation is in Incuma particular land, purchases it subject to the charges, liens, duties, and other legal relations, which the local law imposes. It is true that this involves a petitio principii in a controversy with a hostile claimant; for the plaintiff's case, in a suit for possession, would be, that the lex rei sitae gave title because of the plaintiff's submission to it, and that the plaintiff had title because it was conferred on him by the lex rei sitae. But in a larger sense, viewing the land as an actor, the position seems unanswerable. Every article of property is subject to the law of the land where it abides. Whoever chooses to take it, chooses to take it subject to such law. sitae must, § 282. (f.) Situs must, from the very nature of property, be the arbiter. The mere continuance of a thing in a par- Lex rei ticular jurisdiction gives possessory title to it in that jurisdiction. The possessor can only be ejected by appealing to that jurisdiction. from nature of things, decide. practi § 283. (g.) If the lex rei sitae be abandoned, there is no other law that can be invoked. The law of the owner's dom- No other icil cannot; because, first, the question generally is, who arbiter the owner is, which must be discovered before the law cable. of his domicil is applied; and secondly, where there are two or more owners with different domicils, we must resort to an arbiter outside of the domicil of either to determine which domicil is to prevail. The lex loci contractus cannot avail; for, when a thing is contended for by parties claiming under hostile contracts executed in different countries, here, also, an umpire is required; and to assume that the lex loci contractus of either contract is to prevail is to assume the very point in dispute. The law of the court of process, unless it be the lex rei sitae, cannot; for in personal actions, such court can only sell a defendant's interest in the thing contended for, which interest may be nothing; and no proceedings in rem will lie, unless the thing be within the jurisdiction of the court.2 The only alternative is the adoption of the lex rei sitae. 1 See supra, § 17; infra, § 305. 2 Phil. iv. p. 542. Infra, § 308. Merchant depends on assertion of rule. § 284. (h.) Unless the lex situs be enforced, property loses its merchantable value. No two countries agree as to the able value way in which purchasers are to be notified of incumbrances or of prior sales. In England, until comparatively recent years, there was no office for the registry of mortgages on realty; and even now, there is none in which hypothecations of movables may be recorded. In some of the States of the American Union, judgments are not liens on real estate until execution issues, and then the lien is limited to thirty days; in others, a judgment is a lien for six years from its entering; in one, at least (Maryland), for twelve years. If the lex loci contractus or the lex domicilii prevail, no person can purchase property with safety. Suppose the lex loci contractus be the test. It will be necessary, then, to search the records of every state in which any prior contract may have been executed; nor even then will it be possible to guard against prior tacit or unrecorded incumbrances which any prior owner may have assumed on his travels. Or, if the lex domicilii, which is the alternative usually presented, be taken, the difficulties are even greater. Wherever any owner or part owner, present or past, may have been domiciled, there an incumbrance could have been validly created. The only relief is the adoption of the lex rei sitae. By this is prescribed a field of exploration which is easily defined and as easily examined. No incumbrance exists on the land that the law of its situation does not indicate. A purchaser knows what is the law as to such incumbrances, and knows where they are to be found. He knows that, subject to this law, he can obtain a perfect title, which the law will defend to the end.1 1 Laurent, in the second volume of his treatise on le Droit civil international (1880), p. 299, after criticising the general proposition in the text, in relation to immovables, says: "Undoubtedly this is true, but it is true also of movable property; it is true of right (droit) in general." Je l'ai dit et repété," he continues, "dans ces études; le droit est l'expression de la vie nationale, comme la langue. Est ce une raison pour imposer à l'étranger une langue qui n'est pas la sienne, et pour le soumettre à un droit § 285. (i.) An absolute title to a thing, whether movable or immovable, can only be made through a proceeding in It alone rem.1 But a proceeding in rem can only be instituted can give in a court of the situs.2 3. What "Immovables" include. title. clude all interest in § 286. Immovables, so far as concerns the applicability of the rule which prescribes the exclusive authoritativeness of They inthe lex rei sitae, include not merely the land itself, "but all dismemberments of the property in land, and land. the right to their enjoyment: as of servitudes; rent-charges; the property in the surface as severed from that of the subsoil, or vice versa; future estates, or particular ones limited in duration; rights of mortgage, pledge, or lien; the equitable ownership as distinguished from the legal, or vice versa; and if there be any other legal right in any way falling short of the entire dominion of the soil." This is substantially the view of the modern Roman law. § 287. It will be seen that interests in land less than freehold, mortgages, and leases, which, by the English common law,5 are personalty, are immovables by the Roman guishable Distin quent l'étranger ne pourra pas leur opposer sa loi nationale. Il est donc donné pleine satisfaction aux intérêts vitaux de la société." The question, then, is whether laws regulating the title to real estate are laws of policy. Laurent admits that mortmain laws, and laws forbidding the massing of real estate for ecclesiastical purposes, are laws of policy. Why, then, are not laws prohibiting perpetuities, and laws requiring the registration of titles, laws of policy? they sell property, either real or per- 1 Infra, § 664. 2 Wheaton, i. p. 145; Story, §§ 551, 559; Bar, p. 214. 3 Westlake (1858), art. 63. in this respect from law. Judge Story 2 gives a definition of immovables real estate. which leaves very little in the way of movables, so far as value is concerned, to which the owner's lex domicilii can attach. After classing with immovables "servitudes and easements, and other charges on lands, as mortgages and rents," he adds to the same category, "all other things, though movable in their nature, which, by the local law, are deemed immovable." This, then, leaves the question to the lex rei sitae to decide. Leaseholds, though personal estate by the English law, are yet regarded by English courts as immovables in their international relations.8 4. Indirect extra-territorial Jurisdiction asserted over Immovables. may com pel party to do equity as immov ables. § 288. Notwithstanding the rigor with which the English Chancellor courts have applied the lex rei sitae to immovables, the Court of Chancery has claimed the right to compel parties, subject to its jurisdiction, to take specific action to foreign with regard to foreign real estate. Thus an injunction has been granted to restrain the prosecution of claims for such foreign realty; specific performance of articles of agreement for the sale of foreign realty has been enforced; 5 and reconveyances and releases ordered of estates fraudulently acquired in foreign lands. On the other hand, to quote from Mr. Westlake, "the claim, to affect foreign lands, must be strictly limited to those cases where the relief decreed can be entirely obtained through the parties' personal obedience; if it went beyond that, the assumption would not only be presumptuous but ineffectual. Thus, a bill will not lie for partition of lands beyond the jurisdiction; or to settle their boundaries; nor can any equity be 9 have been adjusted by decree. Penn v. Baltimore, 1 Ves. 444. Arglasse v. Muschamp, 1 Vern. 75; Cranstown v. Johnstown, 3 Ves. 170; 5 Ves. 277. 7 (1858) Art. 65. 8 Carteret v. Petty, 2 Swans. 323, n.; 2 Ch. Ca. 214; Roberdeau v. Rous, 1 Atk. 543. Penn . Baltimore, 1 Ves. 444, enforced by sequestration of such land;1 nor, again, will the court try any question which, like the validity of a will in a foreign land,2 does not involve a special equity between the parties, but is a general one affecting the land, and therefore solely dependent on the lex situs, on which law another tribunal than its own can only pronounce incidentally and not directly." Yet while direct action on foreign immovables is thus out of the range of judicial power, a court of equity, when it has a trustee or other defendant before it who cannot be compelled to do justice in any other way, will direct him, as a condition of his release from heavier penalties, to take certain action with regard to foreign immovables. But in order to enable a court of equity to compel a party subject to such court to perform acts in reference to foreign real estate, there must be a fiduciary relation between the party on whom the decree acts, and the party asking for the decree. And either the defendant must be domiciled within the jurisdiction of the court granting the relief, or the contract must be performable within that jurisdiction. When these conditions exist, and when there is no other way of compelling the execution of a trust, or the prevention of fraud, a court of equity will direct a party subject to it to execute a deed in another state; and such a decree will be regarded as binding the person 447, which is rather to be followed than Tulloch v. Hartley, 1 Y. & C. C. C. 114. 13 My. & K. 109. 2 Pike v. Hoare, 2 Eden, 182. 3 Story, § 545. Judge Story, in citing Cranstown v. Johnston, 3 Ves. Jr. 170, where the master of the rolls compelled a British creditor, within the jurisdiction of the court, to vacate a fraudulent purchase of real estate in the West Indies, says, " To the extent of this decision perhaps there may not be any well founded objection; and the same doctrine has been repeatedly acted upon by the equity courts of America." For this he cites Massie v. Watts, 6 Cranch, 148, 158; Ward v. Amedon, Hopkins R. 213; Mead v. Merritt, 2 Paige R. 402; Mitchell v. Bunch, 2 Paige R. 606. 4 Harrison v. Harrison, L. R. 8 Ch. 342. 5 See Blake v. Blake, 18 W. R. 944; Matthaei v. Galitzen, L. R. 18 Eq. 340; Norris v. Chambres, 30 L. J. Ch. 285; Rice v. Harbeson, 63 N. Y. 493. 6 Muller v. Dows, 94 U. S. 444; Massie v. Watts, 6 Cranch, 148; Mead v. Merritt, 2 Paige, 402; Mitchell v. Bunch, 2 Paige, 606; Vaughan v. Barclay, 6 Whart. 392; McElrath v. R. R. 55 Penn. St. 189; McCurdy's App. 65 Penn. St. 291; Sturdevant e. Pike, 1 Ind. 277. See Wood v. Warner, 15 N. J. Eq. 81; White v. White, 7 Gill & J. 208. |