CALDWELL vs WALLACE, 5 Stew. & P. 312

SAFFOLD, J. The plaintiff in error, who was plaintiff below, brought an action of trespass, de bo-nis, &e. against the defendant, in the Circuit Court of St. Clair, for taking and carrying away certain slaves, the property of the plaintiff. The suit was commenced the fifth July, eighteen hundred and thirty. A verdict and judgment having been obtained by the defendant, the plaintiff excepted to the opinion of the Court. This opinion alone is now the subject of revision.

The bill of exceptions shows, that on the trial, the plaintiff read in evidence a deed of mortgage, dated the third of August, eighteen hundred and twenty-nine, for the slaves, executed by one Joseph Floyd, in the State of Tennessee. He also proved by the subscribing witnesses to the deed, that when it was executed, the property was delivered into his possession, and so remained until the latter part of August, eighteen hundred and twenty-nine, when it was without the knowledge or consent of the plaintiff, and during his absence from home, taken by said Floyd, from Franklin county, Tennessee, to the county of St.

Clair, in this State, and there put in the possession of a Mr. Moore. The mortgage appears to' have been proven on the trial; but there is no shewing of its ever having been recorded. The plaintiff also produced and proved a bill of sale of the said negroes from Floyd to himself, made in the county of Franklin, Tennessee, on the first of February, eighteen hundred and thirty, in consideration of eight hundred and fifty dollars. The bill of sale purports to have been proved in said Franklin County Court, by a certificate signed “ E. Russell, M. C. by Win. T. May, D. C,” at May term, eighteen hundred and thirty.

It also purports to have been registered in the same County, on the twenty-fifth of October, eighteen hundred and thirty-one, by a certificate merely, signed, “ Solomon Wagoner, Re-gist. by his deputy, Joseph Klepper.” The plaintiff also proved, that the eight hundred and fifty dollars, the consideration of the bill of sale, was the actual payment of the several sums mentioned in the deed of trust, and other debts of said Floyd, making that amount.

He also proved, that at the time the bill of sale was made, the property was in the possession of said Moore, in this State, where it remained until taken into possession by the defendant, as hereinafter mentioned.

Then the defendant introduced, as evidence, an exemplification of a record from the said county of Franklin, Tennessee, shewing a judgment in his favor, recovered against the said Floyd, on the twentieth of August, eighteen hundred and twenty-nine, for between one hundred and eighty & ninety dollars; also, that an execution had issued on said judgment, and had been returned nulla bona, soon after the property had been removed to this State, by said Floyd. The defendant further proved, that a short time before the property was brought to this State, a certain Mr.

Moore of Tennessee, hired the same of said Floyd, and paid him the hire. He also proved by several witnesses, neighbors of Floyd and the plaintiff, that they had seen the same property in the possession of Floyd, up to about the time the latter brought it to this State, and that they never heard of any one having any claim on them. It also appeared that on the sixteenth day of February, eighteen hundred and thirty, the defendant sued out an attachment in this State, which was levied on the property, by the defendant, as sheriff of St. Glair county, which taking is the trespass complained of in this suit.

Under these circumstances, and some other proofs on both sides, which can not affect the principle of this decision, the plaintiff moved the Court to instruct the jury as follows: 1. That if the trespass complained of was committed before the time required by the laws of Tennessee for the registration of deeds, no subsequent neglect to record this bill of sale, could defeat his right of action. 2.

That if the property conveyed, was, at the time when the bill of sale was executed in this State, in that event, not the laws of Tennessee, respecting registration of such instruments, but the laws of this State should govern. 3. That although the bill of sale was absolute on its face, if the negroes were in this State when the conveyance was executed, the distance that they were off, was a circumstance proper to be considered by the jury in explanation why the immediate possession did not accompany the conveyance : all which the Court refused to give.

The refusal of the Court to instruct the jury, as requested, is the cause assigned for error. In the progress of the trial below, no question appears to have been raised respecting the manner of establishing the law of Tennessee, regulating conveyances of this description, or the effect of the law within that State.

It seems to have been proved there, or admitted to be, as it was here shewn from the .printed volume, that the statute law of that State, in force at and before the execution of either .of the conveyances mentioned in this record, required that all conveyances of slaves should, be by deed, duly proved or acknowledged and recorded within •twelve months after their dates; otherwise they. should be void to all intents and purposes ; except as between the parties thereto, and others having notice thereof.

It is not contended that either this mortgage, or bill of sale was so acknowledged, or proved, or recorded; or that the former has any validity as a conveyance. On the contrary, it is admitted, that the mortgage has ceased or failed in its operation, and that it was offered in evidence only to shew the consideration for the bill of sale, the execution of which was intended to supersede the other, and on which alone the plnintiff now relies to sustain his title.

The principle mainly contested in argument is, whether the plaintiff’s title shall be determined according to the laws of Tennessee, where the bill of sale was made, and where the parties reside, or by the laws of this State, in which the property was, and where the suit was commenced. Here, slaves may be sold by deed or by parol; and if by deed, for a valuable consideration, registration is not necessary to the validity of the conveyance. The plaintiff contends for the application of the lex fon — the defendant for lex loci contractus.

As this aspect of the case is deemed sufficient, and most proper for its decision, I decline a particular examination of another feature of it, which would otherwise, require investigation, and is equally important in principle.

I allude to the question, whether, according to the law's of either State, or the common law, the sale of the slaves to the plaintiff, was sufficiently consummated by delivery, or any subsequent possession, to give it validity against the defendant, occupying the po-sifcion, and claiming the protection due to a creditor or subsequent purchaser, receiving the prior possession, without notice of the previous sale.

If this inquiry was indispensable to this decision, some of the cases referred to in argument, and others, which I have examined, would be found to present a strange conflict of decision.—See Lanfear va Sumner; Lamb et al. vs Durant; Putnam vs Dutch; Portland Bank vs Stacey et al.

But, on the question, whether the law of this State or of Tennessee, must govern and determine the effect of the plaintiff’s title, the case of Thompson vs Ketcham, may be noticed as an authority.— There, the defendant had executed his promissory note, in the Island of Jamaica; and when sued upon it, in New York, he set up infancy, as a defence. The Court held that he was bound to show, by the laws of Jamaica, that such a plea would constitute a good defence.

Kent, Chief Justice, in delivering the opinion, of the Court, remarks, that “ the force and effect of the contract, must be determined from the contract itself, and not by proof aliunde. The lex loci is togo-vern, unless the parties had in view a different place, by the terms of the contract. Si partes alium in con-trahendo locum respexerent.” Again, he says, “the defendant was bound to make out a valid defence, and it therefore lay with him, to show that his plea of infancy was good by the laws of Jamaica.” The same principle is maintained, in the case of Powers vs Lynch.

In that case, the Court decided, that the indorser of a bill of exchange, drawn in a foreign country, and indorsed by one who has his residence there, is answerable only according to the. laws of that country.

The language of the Court was, that, “it is a principle too well known and established, and founded upon reasons too obvious to require proof or illustration, that contracts are to be construed by the laws of the country where made, and that the respective rights and duties of the parties, are to be defined and enforced accordingly; provided it does not appear, from the nature of the contract, or from other facts, that in the contemplation of the parties, the performance of the contract has relation to the law's of another country.” For all the purposes of this question, I am of opinion the different States of this Union are to be viewed as countries, foreign to each other — no less so, than any others, however distant or unconnected by any confederacy.

In this case, the exception can not be sustained, on the ground, that either from the nature of the contract, or any other circumstances, the parties contemplated performance in this State; for, if the sale and purchase is not to be considered as having been fully executed and performed in Tennessee, the plaintiff’s title to the slaves was defeated, by the creation of the lien upon them, by means of the the attachment, while the sale remained incomplete.

If the contract contemplated no performance or final execution of the sale, in this State, then, of course, it must be construed aud governed by the laws of Tennessee — where, for want of registration of the bill of sale, within the twelve months, the sale was void, as respects this defendant. If, under circumstances, in all other respects the same, the sale had been made in this State, near the property purporting to be conveyed, it would, then, have been adjudged void, for the non-ddivery, without any adequate excuse.

The principle is recognised by this Court, that attaching creditors, are to be considered as purchasers for a valuable considertion. — See Lanfear vs Sumner, before referred to. It may be also noticed, that the last point of instruction requested by the plaintiff, had not a just application to the facts of the case, on which it was required. The request was, that the Court should instruct the jury, on the alleged cause or excuse, why the possession of the property did not immediately accompany the conveyance,, which would presuppose that the possession had been taken by the plaintiff; but not immediately.

From the record, it is shown, that five or six months elapsed, after the execution of the bill of sale, and after the levy of the attachment, before the institution of this suit; and that during this time, there was no possession taken or demanded by the plaintiff; nor does it appear, that he has had possession at any time; Various other authorities maintain the same principle as those already quoted, respecting the lex loci contractus, as the governing rule of rights created under it. Among others, the case of DeLobry vs Terrier, Mly hi point.

But the doctrine is conceived to be too well established, to require a more particular investigation. I am also of the opinion, that though at the time of the alleged trespass, the twelve months, within which the bill of sale was required to have been registered, had riot expired; yet, iri as mucli as it did expire, before the institution of this suit, by reason . of which he had failed to perfect his title, afterwards, he was not entitled to sustain his action against one standing in the situation of the defendant — that is, in the place of a áubsequerit purchaser without notice.

The result of these views is, that there was no er-' ror in refusing the instruction, as requested in the Circuit Court — that they are all either informal in law, or such as might be regarded as abstract, in relation to this suit, under the circumstances. In this opinion, the Court are unanimous. The judgment must be affirmed: 17 Mass R 110. 12 ib. 54. 8 ib. 286. b 4 ib. 661. 8 Johns. R 146. 3 Mass. 77 Har. & J. 220