acted on by the courts of the situs.1 But such an equity will not be enforced, if it conflicts with the prescriptions of the lex situs.2 We must remember, at the same time, that the verbal interpretation of a contract for real estate may be governed by the place of the common domicil of the parties, and that they may be bound by the law of such domicil in respect to covenants not directly concerning the transfer of land.3 And whenever jurisdiction is assumed over the owner of foreign immovables, on the ground that he is subject to equities imposed on him by parties under whom he takes, liability is to be determined by the lex situs.4 Sale by administrator or trustee of foreign real estate inoperative unless good § 289. But while a trustee, in order that equity may be done, will thus be ordered to make a sale in a foreign country, yet this sale is not regarded as a sale by the court, but a sale by the trustee, who proceeds according to the law of the situs. A direct jurisdiction over foreign immovables no court can assume. Thus a court of proby lex situs. bate has no jurisdiction to direct an administrator to sell foreign real estate. Such real estate must be sold, if belonging to a decedent's estate, by order of a court of the situs. A deed not so executed is inoperative.5 And a trustee appointed by the court of one state cannot pass title to real estate in another state. Exception as to in jury to land in another state. § 290. An English court has no jurisdiction of injuries sustained by foreign real estate, even if the aggressor be a domiciled Englishman, though it seems the parties may bind themselves by an agreement not to 1 Burnley v. Stevenson, 24 Oh. St. 474. 2 Westlake, § 64; Martin v. Martin, 2 R. & M. 507; Waterhouse v. Stansfield, 10 Hare, 259. 8 Supra, § 276. 4 Westlake (1880), § 165; Martin v. Martin, 2 Rus. & M. 507; Hicks v. Powell, L. R. 4 Ch. Ap. 741; Norton v. Land Co. L. R. 7 Ch. D. 332. 5 Watkins v. Holman, 16 Pet. 26; McElrath v. R. R. 55 Penn. St. 189; Henry v. Doctor, 9 Ohio, 49; Blake v. Davis, 20 Ohio, 231. 6 Williams v. Mans, 6 Watts, 278; Bingham's App. 64 Penn. St. 345. The fact that mortgaged land belonging to a deceased person is situate in a particular state does not give the judex rei sitae jurisdiction to compel the executor, a citizen of another state, to pay such mortgage out of personal property situate in the latter state. Rice v. Harbeson, 63 N. Y. 493. 71 Smith's Lead. Cas. 781; Skinner v. E. Ind. Co. cited Cowp. 167; The M. Moxham, L. R. 1 P. D. 112. set up defect of jurisdiction.1 In this country we have numerous rulings to the effect that an action for injuries to land must be brought in the state where the land is situated. Hence an action for cutting down telegraph poles (regarded as part of the land) can only be maintained in the state where the offence was committed. But it has been held that where a wrongful act is done in one state from which an injury to land accrues in another state, the defendant may be sued in either state. And it has been also held that to exempt the defendant in an extra-territorial suit, the plaintiff's cause of action must rest on an injury to something attached to the realty, which is not the case when the thing injured is a movable fishing shanty.5 5. Liens on Immovables. Liens debe by lea termina situs. § 291. It has already been stated that all interests in land, whether consisting of equitable interests, charges, trusts, or servitudes, all interests, in other words, that may fall under the term lien in its most general sense, are controlled by the lex rei sitae even in the opinion of those who would confine that law within the narrowest limit. Thus Judge Story declares, that "not only lands, but servitudes and easements, and other charges on lands, as mortgages and rents, and trust estates, are deemed to be in the sense of the law immovables, and governed by the lex rei sitae." The only way by which title can be made to such liens, or the only process. by which such liens can be enforced, is that of the situs. Thus a Scotch heritable bond, charged on land, goes to the Scotch heir, and does not pass as personalty to the legatee by the cred 1 The M. Moxham, ut supra. See, however, Foote's Priv. Int. Law, p. 390, where it is said that while by the old law, before the abolition of the rules in respect to venue, suits for injury to immovable property could only be brought in the jurisdiction within which such property was situate, since the abolition, by the Judicature Act, of the old rules as to venue, the question may be held to be open, citing the M. Moxham, L. R. 1 P. D. 107. Infra, § 711. 2 Livingston v. Jefferson, 1 Brock. 203; McKenna v. Fish, 1 How. 241; 3 Am. Un. Tel. Co. v. Middleton, Ct. Ap. N. Y. 1879. 4 Rundle v. Canal Co. 1 Wal. Jr. 275. See, however, Worster v. Lake Co. 25 N. H. 525; and compare discussion infra, § 711. 5 Rogers v. Woodbury, 15 Pick. 156. See infra, § 711, and articles on this topic in 22 Alb. L. J. pp. 47, 219. 6 Confl. of Laws, § 447. contract may deter mere con tract. itor's English will. So the validity of a mortgage, as a lien on land, is to be determined by the laws of the place where the land is situate, although both the parties reside in another state. Nor can a lien be imposed on foreign real estate.3 § 292. The law, however, is modified when the pledge or But law of mortgage of land is merely collateral and subsidiary to a personal contract of loan. In such case, while the mine as to mortgage or pledge cannot be enforced, or the land touched, except in the court having local jurisdiction, it is otherwise with regard to the contract, which is governed by the law of the place in which such contract has its proper seat. This principle has been applied in two distinct lines of adjudications. The first occurs when, by the lex loci contractus, a contract is illegal, or inoperative as to creditors, although it is secured by land in a country where the contract would have been legal; and in such a state of facts it has been ruled that the lex loci contractus, as to the contract, prevails. So, also, the converse proposition may be accepted, that if the contract is good by the law of the country to which it is distinctively subject, it will not be invalidated by the fact that it carries with it a mortgage in a country where the transaction would not have been good against creditors.5 The other line of adjudications, to which reference has been just made, arises when a loan, usurious by the law of the place to which the contract is subject, is good by the law of the place in which is situate land by which such loan is collaterally secured. In this case, it has been frequently determined that the law which rules the question of usury is that to which the contract is distinctively subject, and not that of the place where the land is situate. A bond secured 1 Johnstone v. Baker, 4 Madd. 474, Pine v. Smith, 11 Gray (Mass.), 38. n.; Jerningham v. Herbert, 4 Russ. See infra, § 368. 388. See Elliott v. Minto, 6 Madd. 16. 2 Supra, § 276 a; Goddard v. Sawyer, 9 Allen (Mass.), 78. See infra, § 317. As to the law in respect to declaring liens, see supra. § 275 b. 8 De Witt v. Burnett, 3 Barb. 89; Ainsley v. Mead, 3 Lans. 116. Supra, § 275 b. 5 Hoyt v. Thompson, 19 N. Y. 207. 6 Lloyd v. Scott, 4 Pet. 211; De Wolf v. Johnson, 10 Wheat. 383; Pine v. Smith, 11 Gray, 38; Cope v. Alden, 53 Barb. 350; 41 N. Y. 313; Dolman v. Cook, 1 McCarter (N. J.), 56; Andrews v. Torry, Ibid. 355; Atwater v. Walker, 1 C. E. Green (N. J.), 42; Newman v. Kershaw, 10 Wis. See infra, 4 Richards v. Goold, 1 Molloy, 22; R. 333; Story, § 287 a. by mortgage, as has also been held, is taxable at the creditor's domicil, the mortgage being a mere collateral.1 But a mortgage cannot be paid off or extinguished or assigned, except in conformity with the lex situs; and the lex situs must decide whether the contested act amounts to extinguishment or assignment.2 When lien covers inestate in divisible two states. § 292 a. When an indivisible estate (e. g. the bed of a railroad), situated in two or more states, is subjected to a single lien, the mode of sale, under process from a state court, is a matter involving serious difficulties. In South Carolina it has been held that under such circumstances the court in which a sale on tax procedure is ordered may direct a sale of the whole road, that part which is in the other state to be subject to the liens imposed in such state.3 But although the franchise might be sold under such procedure, where the forum is the state chartering the road, and where such a sale is good under the local law, yet the title to any extra-territorial real estate belonging to the railroad must be conveyed according to the lex situs. 6. Limitations on Alienation. on alienation gov § 293. So far as this concerns the capacity of owners to alienate, the topic belongs to a subsequent division. At Limitations present it is sufficient to say that all limitations or charges which the lex situs imposes are to be applied according to the construction of the courts of the situs.5 Thus a Scotch will, executed for the benefit of a Scotch charity, cannot carry English lands contrary to the English mortmain 1 Supra, §§ 79 a, 80. 2 Wilkinson v. Simson, 2 Mood. P. C. 275. A debt may be assigned according to the law of the place of assignment, the parties there residing; and this was all that Judge McLean ruled in Dundas v. Bowler, 3 McLean, 397. Infra, § 375. Whether a mortgage was validly assigned must in such, as in all other cases, be referred to the determination of the courts of the situs; as by process from no other courts could such mortgage be fore erned by sitae. lex rei closed. See supra, § 276 a. See, as to collateral liability, Brown v. Knapp, 79 Y. N. 137. 8 Hand v. R. R. 12 S. C. 316. 4 See Jones on Mortgages, § 661. Supra, § 276 a; Railroad v. Jackson, 7 Wal. 262; Cooper v. Canal Co. 2 Murph. (N. C.) 195; Morgan v. R. R. 2 Woods, 244. 5 See McGoon v. Scales, 9 Wal. 23; Lucas v. Tucker, 17 Ind. 41; Loving v. Pairo, 10 Iowa, 282. 389 act; 1 and immovables are liable for a deceased owner's debts in the way the lex situs prescribes.2 Realty descent or marriage governed by same law. 7. Immovables as affected by Operation of Law. § 294. The subjects that are here involved are distinctively considered under other divisions.3 It is enough at this passing by place briefly to say that in England, on grounds of territorial policy, persons who, though legitimate by the general principles of international law, would, if born in England, have been illegitimate, cannot inherit land.* On the continent of Europe, in general, a child legitimate by the law of his father's domicil at the time of birth is legitimate everywhere; and this may be accepted as the international rule.5 Marriage, in its transfer of property, must act, so far as immovables are concerned, in subordination to the lex situs.6 forms of conveyance. 8. Forms of Conveyance. § 295. This topic is noticed in its special relation in a future And so of section of this chapter, and will be fully discussed in a subsequent chapter, under the head of Locus regit actum. It will be seen that where the law of the place prescribes certain forms as requisite for transfer, such forms must be observed. Capacity to acquire so limited; 9. Capacity to acquire and convey; and herein of Alienage. § 296. There can be no question that as to realty, capacity is determined by the lex situs. By some continental jurists, it is true, the lex domicilii is applied to immovables in cases of succession; but in England and America, even this exception is not recognized.10 No persons can acquire or convey real estate except those whom the lex rei alienage so determined. 1 Curtis v. Hutton, 14 Ves. 537. See §§ 105 a, 297, 517. 2 Benatar v. Smith, 3 Knapp, 143, note. See, also, Chapman v. Robertson, 6 Paige R. 630. As to legitimacy, see §§ 240-249; and as to the general questions arising under succession and marriage, see those heads. 4 Supra, §§ 241, 250. 5 See §§ 240 et seq., 249. 6 Jephson v. Riera, 3 Knapp, 130, 149; Story, § 454; Westlake, art. 94. See supra, § 190. 7 Infra, § 372. |