Opinion
12-01-1821
Lewis v. Fullerson.[*] [+]
Gilmer, who at the request of the court argued the case for the appellant,
[Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material]
Lewis an infant, by Milly his mother, brought suit in forma pauperis in Cabell county, against William Fullerton and Jane Rodgers, to establish his freedom. There was a verdict for the defendant, given under instructions by the court, and exceptions filed, which shewed the following case.
In March 1808, Milly the mother of the plaintiff, together with Naise her husband, applied for a writ of habeas corpus in Gallia county, Ohio, to be delivered from the illegal custody of John Rodgers, who claimed them as slaves. The writ was granted; and upon a hearing of parties and witnesses at a subsequent day, the judgment of the court was, that Milly and Naise " go hence, be discharged, and set at liberty."
Edward Tupper a witness proves, that the day after this discharge, Rodgers came to him, and requested him to prevail on should put the question of her liberty at Milly to live with him as an indented servant for two years; that, if she would agree to do so, he would execute to her a complete deed of manumission, which rest; for now, he might possibly reverse the judgment on the habeas corpus. Agreeably to this request, the witness obtained the consent of Milly and Naise to indent themselves for two years, on R's first making the deed of manumission, which is spread on the record. The witness examined the deed, before Naise and Milly executed the indenture for two years service.
Bithia Tupper, a witness, heard R. say, he would execute the deed of absolute manumission, if Milly and N. would agree to serve him two years; that, he always intended to emancipate Milly at his death, and had so provided by his will.
The deed of absolute manumission was executed in Gallia county, Ohio, on the 2d April, 1808, John Rodgers styling himself in it, a citizen of Virginia. It is attested by two witnesses. F. Le Clercq, one of them, deposes, that he heard R. acknowledge the execution of the deed, and that it was his voluntary act, and deed, at the time of signing, & c.
Rodgers moreover acknowledged the execution of the deed before Brewster Higley one of the associate judges of Gallia county, which the judge certifies. The recorder of the county certifies the same acknowledgment. The clerk of the county certifies, that this recorder is the actual recorder, and that full faith is due to his certificate; and the President of the Court of Common Pleas of the county certifies, that this clerk is the actual clerk, & c.
On the trial, the admissibility of this deed as evidence was objected to:
1. Because not certified according to the Act of Congress.
2. Because, at the time of its execution, Rodgers was a citizen of Virginia, and the deed was not recorded in conformity to the statute of Virginia.
3. If offered as valid under the laws of Ohio, it cannot be received; for, there is no law of Ohio prescribing the mode of emancipation. The constitution of Ohio, declaring there shall be neither slavery, nor involuntary servitude, is spread upon the record. The court rejected the deed thus offered.
One of the witnesses also proved, that Milly was seen working at a sugar camp in Ohio on a Sunday, while her residence was in Virginia.
On this case, the plaintiff's counsel moved the court to instruct the jury:
1. That, if they believed Rodgers employed Milly to work for him in Ohio, in any business not merely transitory, before the plaintiff's birth, they should find for the plaintiff.
2. That the record on the proceedings in the habeas corpus was conclusive of Milly's right to freedom, unless reversed, or shown to be obtained by fraud or collusion.
3. That it was conclusive of the said right, if the jury should be of opinion it was rendered on the ground of Milly's having been made to work for R. in Ohio; or of having been sent there in violation of the laws of that state.
4. That, if the jury shall be of opinion that Milly was resident in Ohio, and was taken therefrom by Rodgers by force or violence, they should find for the plaintiff, unless the defendants shewed a right to his services.
The proof of Lewis's birth subsequent to the right of freedom in Milly, in whatever of all these manners, she was entitled to it (if entitled at all,) was clear; and the court refused to give any one of the instructions moved for. There was consequently judgment for the defendant on the verdict, and the plaintiff appealed.
Affirmed judgment.
Gilmer, who at the request of the court argued the case for the appellant, took the following points:
Not contending that the discharge of Milly under the habeas corpus, was conclusive of her right to freedom, he said, that the fact of her having been so discharged in a state where all involuntary servitude was forbidden, together with the circumstance of Rodgers having treated with her as a free person, was at least presumptive evidence of her right to freedom at the time: That the deed of emancipation executed by Rodgers in Ohio, where there is no slavery, to a person discharged from his custody as free, purporting to confirm such right to freedom, ought to have been received in evidence. It ought to have been received, because its execution is proved by a deposition regularly taken in the cause; the deposition too of a subscribing witness, the proper testimony in all such contracts. He did not contend, that it was admissible as a certified deed, because the certificates were not in conformity with the Act of Congress: Nor did he insist that it would have been admissible, if executed in Virginia, without strictly complying with the provisions of the statute of the state regulating the mode of emancipation. Givens v. Mann, was a complete authority on this point, he conceded.
6 Munf. 191.
His view of the case, he alledged, freed it at once from all these objections, and would not at all violate the spirit of the rigorous statutes on the subject of emancipation. Since Lewis, even if entitled to freedom, was subject to be removed from the state by the act. 1 Rev. Code, p. 437, § 64. And the policy of the act being to prevent the increase of negroes, free or bond within the state, to declare Lewis free, and have him transported, would be more in obedience to the policy of the statute, than to condemn him as a slave, and suffer him to remain.
The court, however, will not perhaps be at liberty to go into considerations of state policy, farther than they are forced upon it, by the obvious intent of the act. And he said, that the legislature of Virginia had never declared its will on the subject of emancipation of slaves, whether by citizens or others, in cases in which such emancipation was complete and perfect by what is done between the parties abroad. Such cases can no more be subjected to the control of the local legislation of Virginia by the general principles of law, than any other case of contract. Here is a contract executed in Ohio, and a right is asserted under it in Virginia; the question then arises, whether the contract is to be expounded by the laws of Ohio where it was made, or those of Virginia, whose courts are asked to enforce it. The cases in the English authorities are numerous to shew, that contracts entered into between British subjects in foreign countries, intended to be executed abroad, will be interpreted neither by the law of the country of the domicile of the parties, nor of that whose tribunals are asked to coerce the fulfilment; but that the lex loci contractus will govern. On this principle, Indian interest is allowed on contracts entered into and intended to be executed in India. This principle is familiar, and need not to be insisted on. The common law has, in this, adopted the principle of the civil law, contraxisse unusquisque in eo loco intelligitur, in quo ut solveret se obligavit. And where no place is specially assigned for the execution of the contract, the place of its date must be intended to be that in which it is to be executed.
For monographic note on Conflict of Laws, see end of case.
1 Bos. and P. 138. 2 Bos. and P. 263. 1 Ba. alr. 331.
44 Dig. ti. 7, 1, 21.
In the case before us, the contract was made in Ohio, and if the law of Ohio govern its interpretation, the contract, is valid; for by the laws of that state, all involuntary servitude is prohibited, and consequently, no statute was required to give the right, or prescribe the mode of emancipation.
Though it be true, that the lex loci contractus will govern the interpretation of contracts, it is equally so, that a contract made in one place, but by express stipulation to be executed in another specified place, must be controlled by the laws of the latter, as is shewn by the passage quoted from the civil law. But it will be observed, that the deed of emancipation was complete and perfect on its execution: it had nothing farther in prospect; and consequently the indenture for two year's service, which was the consideration in part on which the deed of emancipation was executed, cannot control this last mentioned deed, so as to make it also have relation to Virginia, as the place of its execution: it can no more control it, than an agreement to pay a sum of money in Virginia in consideration of the manumission would make such deed have reference to the laws of Virginia as the place of its execution. In this case, the consideration is already passed. To give such an interpretation, would in this case convert the deed of emancipation into a naked instrument of fraud by Rodgers; a mere device for decoying into Virginia a person, who in Ohio had been declared to be free, and with whom he treated as a free person. The deed of emancipation, too, was a valid deed between the parties without any consideration at all: Rodgers and all claiming under him are estopped from denying its validity; much more, then, ought he be prevented from setting up his own fraud to vitiate his own act, done freely and voluntarily.
To say, that a deed made abroad under such circumstances is void, is to assert, that no native Virginian can, in any country on earth, emancipate a slave in such country, so as to entitle him to freedom in Virginia; except by a literal compliance with the statute of Virginia: which would be contrary to every general principle of law; and there is nothing in the statute on this subject to distinguish it from other cases. The deed then ought to have been admitted as a contract, or voluntary gift, on the proof of its execution, as any other contract would have been; and being admitted, it is conclusive against Rodgers and all claiming under him: the judgment ought then for this reason to be reversed. He declined to press the other points, thinking this the principal question on the merits.
OPINION
Roane, Judge.
The court is of opinion, that there is no error in the opinions of the Superior Court, impeached by the 2d and 3d exceptions. The reasons in support of those opinions, are so clear and self-evident, that they need not be adverted to.
Nor is there any error in the other opinions of that court, objected to by the appellant, and which go to the merits of his title.
The appellant claims his right to freedom, on three grounds: 1st, on the right to freedom alleged to have been acquired by his mother, prior to his birth, by having sojourned within the state of Ohio, and as is further alleged, been there employed by her master: 2dly, on the ground that her right to freedom was, prior to his birth, established by the judgment on the writ of habeas corpus stated in the record; --and 3dly, he claims it under the deed of emancipation contained in the proceedings; and which was also executed prior to the birth of the appellant. It is readily conceded, that if his mother's right to freedom was valid and complete, prior to his birth, on any of these grounds, his right to freedom follows as a necessary consequence.
Under the first enquiry, we must throw entirely out of view the subsequent residence of the mother within the state of Ohio, with the alleged consent of Rodgers her former master. Whatever may be the effect of a residence therein, for a great length of time, and with the assent aforesaid; whatever may be the effect of this circumstance in relation to a person who may thereby have become one of the permanent members of that state, the residence now in question is of a far different character.
There is no evidence in this case of the mother's residence within the state of Ohio, prior to the appellant's birth, but that she was once seen, on a Sunday, working at a sugar camp therein, in the absence of her master, and without any evidence that it was with his permission. In reference to this evidence, the court below was asked to instruct the jury, that if they should find that she was employed by her master within that state, in making sugar, or any other local service, not merely transitory, and for however short a time, they must find a verdict for the plaintiff. The judgment of the superior court refusing to give that instruction was, in our opinion, entirely correct. Such an occupation for a short time, and even for the benefit of the master, and probably in his presence, could never operate an emancipation of his slave. It could not so operate, when the animus revertendi strongly existed in him, both in relation to himself, and to his slave. There is indeed but a shade of difference between such a residence as this, (if indeed it can be called a residence,) and the mere right of passage through the state: and such a construction, as that now contended for, would whittle down to nothing the right of the citizens of each state, within every other state guaranteed to them by the constitution. Such an occupation cannot be said to carry with it evidence of the assent of the master, that she should cease to remain his property, and become a member of the state of Ohio, without which the regulations of that state on the subject of emancipation cannot attach.
As for the 2d ground of claim, under the judgment upon the habeas corpus, it has been truly answered, that that judgment has not affirmed the mother's right to freedom. Even if it had, and this mode of proceeding was legalized by the laws of that state, (as it seems not to be by the laws of this,) in favour of a slave against his master, those laws are not found in the case before us: and even if they were, it might well be questioned whether the judgment aforesaid could have concluded the right of the master in the present instance. The right of our citizens under the constitution to reclaim their fugative slaves from other states, would be nearly a nullity, if that claim their fugitive slaves from other a proceeding like the one in question; a proceeding of so extremely summary a character, that it affords no fair opportunity to a master deliberately to support his right of property in his slave. Such a proceeding ought not, therefore, to be conclusive on the subject.
As to the deed of emancipation contained in the record, that deed, taken in connexion with the evidence offered to support it, shews, that it had a reference to the state of Virginia. It is stated to have been made by John Rodgers a resident of the state of Virginia; and the testimony shews, that it formed a part of a contract whereby the slave Milly was to be brought back, (as she was brought back,) into the state of Virginia. Her object, therefore, was to secure her freedom by the deed, within the state of Virginia, after the time should have expired, for which she indented herself, and when she should be found abiding within the state of Virginia.
If then this contract had an eye to the state of Virginia for its operation and effect, the lex loci ceases to operate. In that case it must, to have its effect, conform to the laws of Virginia. It is insufficient under those laws, to effectuate an emancipation, for want of a due recording in the county court, as was decided in the case of Givens v. Mann in this court. It is also ineffectual, within the commonwealth of Virginia, for another reason. The lex loci is also to be taken subject to the exception, that it is not to be enforced in another country, when it violates some moral duty, or the policy of that country, or is inconsistent with a positive right secured to a third person or party by the laws of that country, in which it is sought to be enforced. In such a case we are told " magis jus nostrum, quam jus alienum servemus." That third party, in this case, is the commonwealth of Virginia: and her policy and interests are also to be attended to. These turn the scale against the lex loci in the present instance. For want of being emancipated agreeably to the provisions of our act on that subject, the duty of supporting the old and infirm slaves would devolve upon the commonwealth. That burthen is only to be borne by the master, in relation to slaves " so emancipated; " that is, emancipated agreeably to the provisions of the act. 1 Rev. Code. p. 434. Even yet, and notwithstanding a late alteration of the law upon this subject, that burthen must be borne by the commonwealth, at least for a time.
Hub. 2, tom. lib. 1, tit. 3; 2 Fonb. 444.
For these reasons, we are unanimously of opinion to affirm the judgment.
CONFLICT OF LAWS.
I. General Considerations.
II. Status of a Slave.
III. Situs of Debt for Purpose of Taxation.
IV. Contracts.
A. General Rule.
B. Law of Place of Performance as Governing Contract.
C. Contract Governed by Laws of Country with Reference to Which Contract Made.
D. Discharge from Contract Debts.
E. Particular Contracts.
1. Contracts Relating to Real Estate,
2. Transfer of Movable Property.
a. General Rule.
b. Sales of Personal Property.
c. Mortgages.
d. Deeds of Trust.
3. Bills and Notes.
a. Notes.
(1) Governed by Lex Loci Celebrationis.
(2) Situs of New Note Taken for Balance Due on Old Note.
(3) The Contract of the Maker or Indorser.
b. Bills.
4. Assignment of Non negotiable Instruments.
a. Presumption as to Place Where Made.
b. Assignment Governed by Place Where Made.
5. Contract of a Married Woman.
6. Contracts of Building and Loan Association.
V. Domicile and Residence.
A. Domicile.
1. Definition.
2. Domicile of an Infant.
B. Residence.
1. Definition.
2. Residence of Convict in Penitentiary--Citizenship.
3. Residence Not Same as Citizenship.
4. Residence Distinguished from Domicile.
VI. Marriage.
VII. Wills, Descent and Distribution.
A. Descent and Distribution of Personalty.
B. Wills of Personalty.
VIII. Torts.
IX. Criminal Laws and Penal Statutes.
A. Crimes.
B. Penal Statutes.
X. Remedies.
A. In General.
B. Remedy to Enforce Individual Liability of Stockholders Established by Statute.
C. Evidence.
D. Exemptions.
E. Statute of Limitations.
I. GENERAL CONSIDERATIONS.
It is a principle universally recognized that the laws of one state have no effect in another state ipso facto, but their authority is limited to the territorial jurisdiction of the state or country that enacts them, so far as their right or power of enforcement or claim to obedience is concerned. They are permitted to have effect within the jurisdiction of another state because of the courtesy or comity of the latter state rather than because of any strict right. This is especially true when the municipal laws of one country are enforced by the courts of another country. Banks v. Greenleaf, 6 Call 271; Stevens v. Brown, 20 W.Va. 450; Warder v. Arell, 2 Wash. (VA) 282.
Laws Violative of Policy of Forum, or Rights of Citizens.--The courts of one state will not from comity go to the extent of enforcing the laws of another state, when to do so would be contra bonos mores or violative of the feelings, interests, or convenience of its own citizens or rights of its own citizens and (as is said in one case) of the citizens of a sister state, or would be violative of some positive law or policy of the forum. The cases in which this principal is laid down are usually those in which a contract made in one state is sought to be enforced in the courts of another state (the forum). Lewis v. Glenn, 84 Va. 947, 6 S.E. 866; Bowman v. Miller, 25 Gratt. 331; Dulin v. McCaw, 39 W.Va. 721, 20 S.E. 681; Stevens v. Brown, 20 W.Va. 450; Fant v. Miller, 17 Gratt. 47; Lewis v. Fullerton, 1 Rand. 15.
For example, if the law of a place where a contract is made be contrary to the laws of the country in which the suit is brought (lex fori ) in which a contract is also made inconsistent with the contract made in the foreign country, the courts of the forum will enforce their own law rather than the foreign law so that the contract made there will prevail. Banks v. Greenleaf, 6 Call 271.
Exception.--But see Dulin v. McCaw, 39 W.Va. 721, 20 S.E. 681, which says that the courts of the forum will enforce a contract made in another state valid by its laws even though it would be invalid by the laws of the forum provided that the contract is not in itself wrongful.
II. STATUS OF A SLAVE.
A slave removing from one state to another where slavery is abolished, with the consent of his master, for a mere transitory purpose, and with the animus revertendi does not thereby acquire a right to freedom in the former state. Nor does a judgment on a habeas corpus in the latter state, in favor of the slave establish such right. Lewis v. Fullerton, 1 Rand. 15.
III. SITUS OF DEBT FOR PURPOSE OF TAXATION.
The situs of a debt for the purposes of taxation is the domicile of the creditor. The domicile of the holder of the evidence of debt is the situs of the debt for taxation purposes. The creditor cannot be taxed in the place of the domicile of the debtor unless he resides there, nor has the legislature power to tax choses in action held by nonresidents. And it cannot be done by taxing the debtor and allowing him to deduct the amount from the debt. State Bank of Virginia v. City of Richmond, 79 Va. 113; Com. v. C. & O. Railroad, 27 Gratt. 344.
IV. CONTRACTS.
A. GENERAL RULE.
The lex loci contractus generally governs a contract as to its nature, interpretation, validity, obligation and effect. In the cases in which this rule was laid down the locus contractus was taken to be the place where the contract was either made and to be performed or where the contract was made and there was nothing to show that it was to be performed in any other state. Hefflebower v. Detrick, 27 W.Va. 16; Klinck v. Price, 4 W.Va. 4; Warder v. Arell, 2 Wash. (VA) 282; Dickinson v. Hoomes, 8 Gratt. 353; Banks v. Greenleaf, 6 Call 271; Crumlish v. Central Imp. Co., 38 W.Va. 390, 18 S.E. 456; Dulin v. McCaw, 39 W.Va. 721, 20 S.E. 681; Bowman v. Miller, 25 Gratt. 331; Fant v. Miller, 17 Gratt. 47; Turpin v. Povall, 8 Leigh 93; Urton v. Harris, 2 W.Va. 83; Lewis v. Glenn, 84 Va. 947, 6 S.E. 866; Corbin v. Planters' Nat. Bank, 87 Va. 661, 13 S.E. 98; Lewis v. Fullerton, 1 Rand. 15; Stevens v. Brown, 20 W.Va. 450; Wick v. Dawson, 42 W.Va. 43, 24 S.E. 587; Banks v. Greenleaf, 6 Call 271; Backhouse v. Selden, 29 Gratt. 581.
For example, where a contract for the payment of money is made in one state secured by a deed on real property situated in another state, the laws of the latter state determine as to whether the deed is a mortgage or not, but the laws of the former state (lex loci contractus ) determine as to the nature, construction and validity of the contract and would determine whether the loan is usurious or not. Klinck v. Price, 4 W.Va. 4.
Again, if " R" residing in this state, makes his note to " H" also residing in this state, and sends the same to " D" residing in another state to be there signed by him and returned to " R" to be by him delivered to " H" and the same is there signed and returned to " R," who delivered the same to " H," such note is to be held, as a contract made in this state, and subject to, and governed by the laws thereof. The general rule is that all instruments made and executed in a country, take effect and are to be construed as to their nature, operation and effect, according to the laws of the country where they are made and executed. Hefflebower v. Detrick, 27 W.Va. 16.
And note the following example which shows that though it is not always easy to determine what is the locus contractus yet where it is ascertained the law of that state always prevails: J. C., who lived in Ohio, executed his single bill in Ohio, payable to P., and pursuant to a former arrangement with S. C., the brother of J. C., P. took the single bill to Virginia, where he and S. C. lived, and there S. C. signed the bill, which was a joint and several obligation, as surety for his brother. The single bill did not specify where it was to be paid, and on its face was to bear interest at eight per cent. per annum from date. By the laws of Ohio the interest was lawful, but by the law then in force in Virginia, December, 1858 a greater rate of interest than six per cent. per annum rendered the contract void. S. C. died, the single bill still being unpaid; suit was brought in Hancock county against the administrator of S. C. to recover the amount thereof; the administrator pleaded usury; the case was tried before the court, in lieu of a jury, and judgment rendered for the amount of the single bill, with eight per cent. interest. Held, that the single bill executed by the principal in Ohio, and the surrounding circumstances showing it was to be paid there, S. C. in signing it in Virginia as surety, ratified it as an Ohio contract. It being an Ohio contract and valid under the usury laws of that state, the surety, although he signed it in Virginia, could not avail himself of the plea of usury. Pugh v. Cameron, 11 W.Va. 523.
An Apparent Exception.
In Turpin v. Povall, 8 Leigh 93, it is said that, where a contract is void according to the lex loci contractus but valid by the lex fori, the contract is not to be governed by the law of the place where it was made, but the lex fori must prevail. The facts in the case are that Povall, a resident of Pennsylvania, made a loan to Johnson of Virginia. The loan was made and the money advanced in Pennsylvania but the bond to secure the loan was taken in Virginia by the agent of Povall with another party as surety. The contract was to pay ten per cent. interest, which it seems was usurious by Pennsylvania as well as Virginia law; but in the first state the debtor was entitled to relief only against the usurious excess, while in the second, the entire debt was forfeited. The court held that the contract was to be governed by Virginia and not by Pennsylvania law. In Fant v. Miller, 17 Gratt. 47, and Bowman v. Miller, 25 Gratt. 331, it is said that the result reached in this case was correct, but that the ground of the decision was that the contract being made in Virginia was to be governed by Virginia law (lex loci contractus ), and that the principle laid down above was mere dictum.
B. LAW OF PLACE OF PERFORMANCE AS GOVERNING CONTRACT.
The validity of the contract is to be decided by the law of the place where it is made, unless it is to be performed in another country, when it is to be presumed that the parties contracted with reference to the laws of the latter as to the validity, nature, obligation and interpretation of the contract, and that those laws will govern. Pugh v. Cameron, 11 W.Va. 523; Nickels v. People's B., L. & S. Ass'n, 93 Va. 380, 25 S.E. 8; Lewis v. Fullerton, 1 Rand. 15; Ware v. Building Ass'n, 95 Va. 680, 29 S.E. 744; National Bldg., etc., Ass'n v. Ashworth, 91 Va. 706, 712, 22 S.E. 521; Wick v. Dawson, 42 W.Va. 43, 24 S.E. 587; The Freeman's Bank v. Ruckman, 16 Gratt. 126; Warder v. Arell, 2 Wash. (VA) 282; People's, etc., Ass'n v. Tinsley, 96 Va. 322, 31 S.E. 508.
For example, although money is loaned in Virginia, and a bond therefor is executed in Virginia, and it is secured by a deed of trust on real estate situated in Virginia, yet if the bond is in good faith payable in New York, it will be deemed to be a New York contract and governed by the laws of that state, the place of performance as to its validity, interpretation and effect. Ware v. Bldg. Association, 95 Va. 680, 29 S.E. 744.
Again, a member of a building fund association must be presumed to have contracted with reference to its by-laws. If these provide that the place of performance shall be in another state by the laws of which the contract is made valid, though usurious in this state, and the contract is silent as to the place of performance, it will be deemed valid here. Upon the question of usury, the law of the state where the contract is to be performed controls. Nickels v. People's B., L. & S. Ass'n, 93 Va. 380, 25 S.E. 8.
C. CONTRACT GOVERNED BY LAWS OF COUNTRY WITH REFERENCE TO WHICH CONTRACT MADE.
A contract, so far as relates to its validity, nature, interpretation and effect, is to be governed by the laws of the place with reference to which it is made, and an express stipulation of the parties that it is to be held and construed as made with reference to a certain jurisdiction shows by what law they intended the transaction to be governed. Union Central Life Ins. Co. v. Pollard, 94 Va. 146, 26 S.E. 421; Nelson v. Fotterall 7 Leigh 179; Lewis v. Fullerton, 1 Rand. 15.
Presumption in Favor of Legality of Contract. --Where a contract is made in one state where the contract is illegal, but is to be performed in another state where it is legal the presumption is that the parties contracted with reference to the laws of the state which recognized the legality of the contract. Nickels v. People's Bldg. Ass'n, 93 Va. 380, 25 S.E. 8.
D. DISCHARGE FROM CONTRACT DEBTS.
Tender and Refusal.--If a person be discharged from a debt by a tender and refusal made in a foreign country, by force of the laws of that country he may defend himself in the courts of another state by relying upon such tender and refusal, and the laws under which he was discharged. Warder v. Arell, 2 Wash. (VA) 282.
Discharge in Bankruptcy.--A discharge in bankruptcy by the laws of one country is no defense to an action on a bond brought in the courts of another country. Banks v. Greenleaf, 6 Call 271.
E. PARTICULAR CONTRACTS.
1. Contracts Relating to Real Estate. --The lex rei sitoe governs as to contracts relating to real estate, as to the rights of parties thereto, the mode of transfer and alienation and the nature and extent of the interest therein. Burtners v. Keran, 24 Gratt. 42; Klinck v. Price, 4 W.Va. 4; Wick v. Dawson, 42 W.Va. 43, 24 S.E. 587.
For example, in a controversy between several parties to whom the same piece of land has been granted with general warranty, the courts of the state where the land is situated have jurisdiction to determine to whom the land belongs, even though one of the necessary parties reside out of the state and is only served by publication. Burtners v. Keran, 24 Gratt. 42.
Again, when money is loaned and the conveyance to secure it is on land situated in another state, the law of the place where the land is situated and not the place where the conveyance was made is to govern as to whether the conveyance is a mortgage or not. Klinck v. Price, 4 W.Va. 4.
Liability of a Married Woman's Real Estate to Be Subjected.--The law of the state where the land, the separate property of a married woman, is situated must determine the question of its liability to be subjected to the payment of claims against her. Wick v. Dawson, 42 W.Va. 43, 24 S.E. 587.
Breach of Warranty as Affecting Heirs.--Where land in Virginia is conveyed with general warranty on the part of the grantors and their heirs, and the heirs subsequently set up a title to the land against the assignee of the original grantee, the question as to whether certain Kentucky lands descended to the heirs from the grantor is assets in the hands of the heirs for the payment of the breach of warranty is to be determined by the law of Kentucky (lex loci rei sitce ) and not by Virginia law. Dickinson v. Hoomes, 8 Gratt. 353.
2. Transfer of Movable Property.
a. General Rule. --It is well settled as a general rule that a transfer of movable property good by the law of the owner's domicile, is valid wherever else the property may be situated and should prevail. Bockover v. Life Association, 77 Va. 85; Wickham v. Lewis Martin & Co., 13 Gratt. 427.
Qualification of General Rule.--And see Kurner v. O'Neil, 39 W.Va. 515, 20 S.E. 589, which says, that the proper forum to decide as to all questions of the priority and preference of the creditors is the place of the domicile of the debtor; and that the law of that place, and not the law of the place of the contract is to govern in all cases of such priorities and preferences in respect to movables situated in his place of domicile. But as to movables situated elsewhere as well as to immovables the lex rei sitce is to govern.
b. Sales of Personal Property. --The sales of personal property, when situated at the place of the domicile, of the vendor, are governed by the law rei sitce, and not by the laws of the state to which it may thereafter be removed. Kurner v. O'Neil, 39 W.Va. 515, 20 S.E. 589.
c. Mortgages. --A chattel mortgage valid under the laws of the state where it was executed both as between the immediate parties thereto and as against third parties is valid in another state to which the property is subsequently removed, although not executed according to the laws of the latter state. Craig v. Williams, 90 Va. 500, 18 S.E. 899.
d. Deeds of Trust. --Where a deed of trust is executed in one state on property situated in another state, in a controversy over the property arising in the latter state, the courts of the latter state will apply their own recordation laws in absence of evidence that the laws of the former state are different. Smith v. Smith, 19 Gratt. 545.
3. Bills and Notes.
a. Notes.
(1) Governed by Lex Loci Celebrationis.--A note made in a particular country is to be deemed a note governed by the laws of that country, whether it is made payable there, or it is payable generally, without naming any particular place. Wilson v. Lazier, 11 Gratt. 477. If a note is both made and discounted in a certain state it is to be governed by the law of that state even though it is made payable at a bank outside of the state. Hamtramck v. Selden, 12 Gratt. 28.
(2) Situs of New Note Taken for Balance Due on Old Note.--Where a new note is taken for the balance due on an old note, made and indorsed by the same parties as were on the old, this note not being considered a novation of the old note is to be governed by the same law even though entered into and made payable in another state. Bowman v. Miller, 25 Gratt. 331.
For example, B being in want of money, in August 1867, went to the city of Baltimore with a negotiable note for $ 3,500, blank as to date and place of payment, but signed by himself and indorsed by five persons, he and they living in Virginia. This note he sold to M, of Baltimore, at a discount of one and one-fourth per cent. per month; the proper date was inserted and the place of payment fixed at the National Exchange of Baltimore. This note was renewed with the same parties, and in April, 1868, B made a payment on it of $ 550, and another note to meet the balance was made by the same parties, payable at the same bank, and M agreed to take this note at the same discount. The last note not being paid, M sent it and all the previous notes and papers connected with the loan, with a statement of the amount due him, to a friend residing in Harrisonburg, with a request that he would take B's note for what was due, indorsed by the same parties. This was done, and the note was made payable at the National Bank at Harrisonburg. Held : the taking of the last note was not a novation of the previously existing debt; but the contract is still a Maryland contract, to be governed by the law of Maryland. Bowman v. Miller, 25 Gratt. 331.
(3) The Contract of the Maker or Indorser.--The making of a note and the indorsing or assigning of the same are distinct contracts, each governed by the law of the place where the acts were respectively done. Wilson v. Lazier, 11 Gratt. 477; Pugh v. Cameron, 11 W.Va. 523.
b. Bills.
Bill Indorsed in One State Negotiable in Another.--When a note is drawn and indorsed in one state for the accommodation of the drawers to be negotiated in another state where afterwards it is negotiated the latter state is the place of the contract rather than the former because the contract is nudum pactum and does not become binding until it is negotiated there. This seems to be certainly true according to Brockenbrough, J., apart from statute, but under the Va. Stat., 1 Rev. Code, ch. 126, § 4, there is a difference of opinion as is seen by the following case: " A foreign bill of exchange for sterling money, drawn by merchants of Petersburg, Virginia, on a merchant at Liverpool, and dated at Petersburg, expresses on its face that it is drawn for current money there received, but does not express the amount of current money received for it; the bill is indorsed by merchants of Petersburg, at Petersburg; and the bill is so drawn and indorsed, for the accom modation of the drawers, with purpose to send it to New York to be there sold, and it is sent to New York accordingly, and there negotiated; the bill is returned protested: in assumpsit by the New York holder against the drawers, qucere, whether, upon the construction of the Statute, 1 Rev. Code, ch. 126, § § 1, 4, this bill is to be regarded as a New York bill of exchange or a Virginia bill? Two judges hold, that it is a New York bill, and two that it is a Virginia bill: the other judge holds, that upon the pleadings in this case it must be regarded as a Virginia bill, it being counted upon in the declaration as a Virginia bill, the action being founded on the statute of Virginia, and damages claimed and given by the verdict according to the statute." Nelson v. Fotterall, 7 Leigh 179.
4. Assignment of Nonnegotiable Instruments.
a. Presumption as to Place Where Made.
Where suit is brought in one state on a nonnegotiable note payable in another state the court will presume that the assignment was made in the latter state, the assignment being legal there rather than in the state of the forum where it would have been void, although it was alleged by special plea that the note was endorsed in the first state. Bk. of Marietta v. Pindall, 2 Rand. 465.
b. Assignment Governed by Place Where Made.
Where a certificate of deposit is executed in one state where the contract is illegal and void, but the certificate is assigned in another state where the assignment is valid, the assignment is to be considered a separate contract and must be governed by the laws of the place where made. Morrison v. Lovell, 4 W.Va. 346.
5. Contract of a Married Woman. --The extent to which a married woman may bind herself or her separate personal estate is prima facie determined by the law of the state in which the contract is made, it being also the place of her domicile. Dulin v. McCaw, 39 W.Va. 721, 20 S.E. 681.
6. Contracts of Building and Loan Association. --When the borrowers or shareholders of a building association--chartered in one state ask for relief in the courts of another state, relief is to be granted according to the laws of the former state if they are not repugnant to the laws of the latter state even though the borrowers or shareholders reside in the latter state. Gray v. Baltimore Building & Loan Asso., 48 W.Va. 164, 37 S.E. 533.
V. DOMICILE AND RESIDENCE.
A. DOMICILE.
1. Definition. --Two things must concur to establish domicile, the fact of residence at a place and the intention to remain there for an indefinite time. White v. Tennant, 31 W.Va. 790, 8 S.E. 596; Long v. Ryan, 30 Gratt. 718.
In White v. Tennant, 31 W.Va. 790, 8 S.E. 596, it is said, that if it is shown that a person has entirely abandoned his former domicile in one state with the intention of making his home at a fixed place in another state with no intention of returning to his former domicile and then established a residence in the new place for any period of time, however brief, that will be, in law a change of domicile and the latter will remain his domicile until changed in like manner. For example, where a person entirely abandons his former residence in one state with no intention of resuming it and goes with his family to another residence which he rented in another state with the intention of making the latter his residence for an indefinite time, the latter is his domicile, notwithstanding that after he and his family arrived at his new residence which was only about half a mile from the state line, they go on the same day on a visit to spend the night with a neighbor in the former state, intending to return on the morning of the next day, but he is retained there by sickness until he dies and never does in fact return to his new home.
In Long v. Ryan. 30 Gratt. 718, residence is defined to be a place of abode, a dwelling, a habitation, the act of abiding or dwelling in a place for some continuance of time. To reside in a place is to abide, to sojourn, to dwell there permanently or for a length of time. It is to have a permanent abode for the time being, as contradistinguished from the mere temporary locality of existence.
As is pointed out in Minor's Conflict of Laws, the use of the term residence is confusing, and it is more proper to say that domicile is the concurrence of actual presence coupled with the intention to remain at a place permanently. That this is correct is plain from the two cases just considered unless we are to change the definition of residence. It is certainly established that a man cannot be said to have his residence in a place by remaining there for just a moment of time which is the sense that residence would have to be used to make the definition of domicile true advocated by the two cases above. See more fully on this subject, a discussion in Minor's Conflict of Laws.
2. Domicile of an Infant. --The home or domicile of the father is the domicile of the child; so also of a mother whilst a feme sole ; but a guardian cannot fix the domicile of his ward; nor can a mother during coverture with a second husband take a child by the former husband from its native state, where it is domiciled, and carry it into another state thereby changing its domicile and altering the succession to its estate. Mears v. Sinclair, 1 W.Va. 185.
B. RESIDENCE.
1. Definition. --See domicile above.
2. Residence of Convict in Penitentiary--Citizenship. --The residence of a citizen of this state is not changed by reason of his conviction and confinement in the penitentiary of another state. Residence is a matter of intention and is determined by every man for himself. The penitentiary is not a place of residence, but of confinement as a punishment for crime. Compulsory confinement in the penitentiary cannot change the residence of the convict. Guarantee Co. v. National Bank, 95 Va. 480, 28 S.E. 909.
3. Residence Not Same as Citizenship. --Mere residence does not constitute citizenship. Guarantee Co. v. Nat. Bk., 95 Va. 480, 28 S.E. 909.
4. Residence Distinguished from Domicile.
Generally.--There is a wide distinction between domicile and residence, to constitute a domicile two things must concur: first, residence, secondly, the intention to remain there for an unlimited time. Residence on the other hand is to have a permanent abode for the time being as contradistinguished from a mere temporary locality of existence. A man may be a resident of a particular locality without having his domicile there. He can have only one domicile at one and the same time at least for the same purpose, although he may have several residences. Long v. Ryan, 30 Gratt. 718.
Residence in Attachment Laws.--The word residence is often used to express different meanings according to the subject matter. It may mean one thing in one statute and another thing in another statute. The word residence is used under the attachment laws to be construed as meaning the act of abiding or dwelling in a place for some continuance of time. While the casual or temporary sojourn of a person in the state on business or pleasure, does not make him a resident within the meaning of the attachment laws, yet it is not necessary that he should come into the state to remain there permanently that is that he should be domiciled there. Long v. Ryan, 30 Gratt. 718.
VI. MARRIAGE.
General Rule.--The general rule is that a marriage valid where made is valid everywhere. But it is subject to the exception that those marriages involving polygamy and incest or those violative of the statutes or public policy of a country will not be recognized as valid, or to state the rule differently while the forms of entering into the contract of marriage are to be regulated by the lex loci contractus the law of the country in which it is celebrated, the essentials of the contract such as capacity, etc., depend upon the law of the country in which the parties are domiciled at the time of the marriage (the lex domicilii ) and in which the matrimonial residence is contemplated. Kinney v. Com., 30 Gratt. 858; Greenhow v. James, 80 Va. 636.
For example, K, a negro man, and M, a white woman, both domiciled in the county of Augusta, Virginia, left Virginia and went to Washington, D. C., and were married there according to the regular forms for celebrating marriages, and after remaining absent from Virginia about ten days, returned to their home in Augusta county, Virginia, where they have since lived as man and wife. By the laws of Virginia (C. V. 1873, ch. 105, § 1), all marriages between a white person and a negro are absolutely void. On an indictment for lewdly and lasciviously associating and cohabiting together. Although such marriages are not prohibited by the laws of the district of Columbia, and this marriage was performed according to the ceremonies there prescribed, it is void under the laws of Virginia, and the parties are liable to the indictment. Kinney v. Com., 30 Gratt. 858.
VII. WILLS, DESCENT AND DISTRIBUTION.
A. DESCENT AND DISTRIBUTION OF PERSONALTY.
Conflict of Laws--Distribution of Property--Domicile of Decedent.--The laws of the state in which the domicile of a decedent is at the time of his death and not those of the state where the property is situated control and govern the distribution of his personal estate, although he may die in another state. White v. Tennant, 31 W.Va. 790, 8 S.E. 596; Dickinson v. Hoomes, 8 Gratt. 353.
The laws of the state in which the domicile of a decedent is at the time of his death will control the distribution of his personal estate, though he may die in another state. White v. Tennant. 31 W.Va. 790, 8 S.E. 596.
If children in Virginia inherit from an ancestor lands in Kentucky, the laws of which state subject lands descended to the payment of the ancestor's debts, a court of equity in Virginia may compel the children of such ancestor, residing within its jurisdiction to account for any lands in Kentucky descended to them as heirs, as a trust subject for the payment of the ancestor's debts. Dickinson v. Hoomes, 8 Gratt. 353.
Where heirs, in Virginia, have received their shares of a decedent's estate, under the laws of Louisiana, where he died, their right to hold and enjoy the same, and their liability to contribute to the payment of debts must be governed by the laws of that state. De Ende v. Wilkinson, 2 Patton & H. 663.
If a debtor in Virginia moves to another state and dies, and his estate is diminished and distributed according to the laws of the state wherein he died, his distributees who reside in Virginia are responsible here for the debts of their intestate to the amount of the assets they received. Hairston v. Medley, 1 Gratt. 96.
B. WILLS OF PERSONALTY--LEX DOMICIL II. --It is a rule of the common law that wills of personal property are to be construed according to the law of the place of testator's domicile, wheresoever the judicial inquiry may be made as to its meaning, and there is nothing in Code 1860, ch. 110, § 4, amended by Acts 1865-66, p. 166 (Code 1887, § 2270) indicating an intention to abrogate or change it. Bolling v. Bolling, 88 Va. 524, 14 S.E. 67; Bible Society v. Pendleton, 7 W.Va. 79.
Proceeds from Sale of Realty.--For example, where a party domiciled in Virginia conveys by deed land situated in Pennsylvania to a trustee to be sold and the proceeds of the sale after deducting expenses of trust to be held by him subject to such disposition as the grantor may direct by deed or other writing, and the grantor afterwards makes a will giving such proceeds to various charitable institutions, the will is to be governed by the law of Virginia the domicile of testatrix and not by the laws of the place where the land was situated. Bible So. v. Pendleton, 7 W.Va. 79.
VIII. TORTS.
Action for Negligence.--If a right to sue or a public duty is established by the statute of a foreign state there is no reason why an action founded on the violation of this duty or to establish this right may not be enforced by the courts of any other state. Nelson v. C. & O. R. Co., 88 Va. 971, 14 S.E. 838; C. & O. R. Co. v. Am. Ex. Bk., 92 Va. 495, 23 S.E. 935. For example, when an action for death by wrongful act is given by a statute of one state, this right of action will be enforced by the courts of another state. Nelson v. C. & O. R. Co., 88 Va. 971, 14 S.E. 838. Again, the violation of a statute of the United States which amounts to a civil injury to a plaintiff may be made by him the basis of an action for negligence in a state court. C. & O. R. Co. v. Am. Ex. Bank, 92 Va. 495, 23 S.E. 935.
IX. CRIMINAL LAWS AND PENAL STATUTES.
A. CRIMES. --Where a blow given in one state is followed by death in another, there can be no prosecution in the state in which the blow was given. Com. v. Linton, 2 Va. Cas. 205.
B. PENAL STATUTES. --The courts of one state will not enforce the penal laws of another state. Stevens v. Brown, 20 W.Va. 450; Warder v. Arell, 2 Wash. (VA) 282; Nelson v. C. & O. R. Co., 88 Va. 971, 14 S.E. 838; C. & O. R. Co. v. Am. Ex. Bank, 92 Va. 495, 23 S.E. 935.
X. REMEDIES.
A. INGENERAL. --The law of the place where the suit is brought governs the remedy. This includes the mode of proceeding, the form of the judgment or decree, and the modes of carrying them into execution. Dulin v. McCaw, 39 W.Va. 721, 20 S.E. 681; Wick v. Dawson, 42 W.Va. 43, 24 S.E. 587; Urton v. Harris, 2 W.Va. 83; Bowman v. Miller, 25 Gratt. 331; Union Central Life Ins. Co. v. Pollard, 94 Va. 146, 26 S.E. 421.
B. REMEDY TO ENFORCE INDIVIDUAL LIABILITY OF STOCKHOLDERS ESTABLISHED BY STATUTE. --Where the statute law of a state under which a corporation is created not only imposes on the stockholders an individual liability but also prescribes the remedy whereby the same must be enforced, the courts of another state, being unable to ascertain and determine the extent of this individual liability will refuse to administer such remedy. In cases in which such liability is enforced in another state the statute declaring the liability either prescribes no remedy or leaves the creditor to select such common-law remedies as may be in use within the jurisdiction in which suit is brought. Nimick & Co. v. Iron Works, 25 W.Va. 184.
C. EVIDENCE.
Questions relating to evidence being a part of the remedy are to be governed by the lex fori and not by the lex loci contractus. Corbin v. Planters' Nat. Bank, 87 Va. 661, 13 S.E. 98; Fant v. Miller, 17 Gratt. 47; Union Central Life Ins. Co. v. Pollard, 94 Va. 146, 26 S.E. 421.
D. EXEMPTIONS.
Exemption laws pertain to the remedy and depend upon the law of the forum and not upon the lex loci for their enforcement. Stevens v. Brown, 20 W.Va. 450.
E. STATUTE OF LIMITATIONS. --The statute of limitations being considered as part of the remedy is always to be controlled by the lex fori and not by the lex loci contractus. Urton v. Harris, 2 W.Va. 83.
[*]The reporter is indebted for the report of this case, to the gentleman who argued it. It was argued before the appointment of the present reporter. --Note in Original Edition.