er the property is taxable as personalty in the state in which the owner has his legal residence.

(b) CONTRACTS TO SELL-STATUTE OF FRAUDS

Under the statute of frauds, under which, as to contracts to sell or sales of lands, tenements, or hereditaments, or any interest in or concerning them, the agreement or a memorandum thereof must be in writing, and signed by the party to be charged, it often becomes important to know whether the subject-matter of an alleged oral contract is land or an interest in or concerning land, or does not come within this class at all.

The section of the statute pertaining to this is as follows:

"No action shall be brought upon any contract or sale of lands, tenements, or hereditaments, or any interest in or concerning them, unless the agreement upon which such action shall be brought, or some memorandum or note thereof shall be in writing, and signed by the party to be charged therewith or some other person thereunto by him lawfully authorized."

Very commonly this has been so amended by state legislatures as to make oral leases for a year or less, or for three years or less, or for some other period named, valid.

(c) RIGHTS OF HEIRS, DEVISEES, LEGATEES, ADMINISTRATORS, AND EXECUTORS

Upon the death of the owner of real property, the heirs at law or the devisees under the will of the deceased owner take title at once to the real estate, subject only to the possibility that the land, or a part of it, may have to be sold in order to pay debts of the decedent. This is the usual rule in this country to-day. On the other. hand, upon the death of the owner of personal property, the legatees under the will or the heirs at law take nothing at once, the title going to the executor or administrator for purposes of administration, and the legatees or the heirs at law getting the property or the proceeds thereof after the executor or administrator has paid the debts of the decedent and is ready to make distribution.

(d) RIGHTS OF DOWER AND CURTESY IN REALTY ONLY Under the common law the wife, upon marrying, became the holder of an inchoate or incomplete right of dower in the real property of the husband, which right would become complete upon the 6 See Britton & Bauer's Cases on Business Law, pp. 369, 370.

"In this country, the common-law distinction between real and personal property in this regard is still retained in the majority of states, though in some the executor is empowered, upon receiving authority from the court, to sell real property for the payment of debts. In some states, however, the statute provides that real property shall pass to the personal representative, to be administered by him in the same manner as personal property, and there is a growing tendency to obliterate the distinctions between the two classes of property as regards the powers of the executor or administrator in regard thereto." Tiffany on Real Property, § 425.

death of the husband with the wife surviving. The complete right of dower consisted of an estate for life in one-third of the real property of the husband. Also, under the common law, the husband, upon the birth of a live child to the marriage, became possessed of a right known as curtesy. The right of curtesy was an estate for the life of the husband in all of the estates of inheritance of the wife.

These rights have been greatly modified by various state statutes, and have been, in some instances, even abolished; but dower and curtesy, strictly speaking, have to do only with real property. Even with dower and curtesy modified or abolished, there is usually a difference between the rights of the surviving spouse in real property and those in personal property of the deceased. The statutes of the state should be consulted on this point.

(e) CONFLICTS OF LAWS

Affecting real property are laws as to conveyance, wills, descent, dower, trusts, taxes, trespass, landlord and tenant, and other matters. In general, rights in land are determined by the law of the place where the land lies.8

PINKLEY v. PINKLEY.

(Court of Appeals of Kentucky, 1913. 155 Ky. 203, 159 S. W. 795.) Action by Louise M. Pinkley against Virgil A. Pinkley. From a judgment for defendant, plaintiff appeals.

HOBSON, C. J. Louise M. Pinkley brought this suit in the Kenton circuit court against Virgil A. Pinkley, alleging in her petition that on September 26, 1910, in the superior court of the county of Los Angeles in California, a judgment was entered divorcing the plaintiff and the defendant, the judgment concluding with these words: "And it is further ordered and decreed that all the community property belonging to the plaintiff and the defendant be equally divided between them." She alleged that in July, 1895, the defendant had become the owner of 31 lots in Covington, Ky., which she described in her petition, and that he was the owner of these lots in Covington at the time of the entry of the judgment, and was still the owner of them. She also alleged that sections 146, 163, 164, and 687 of the California Civil Code are as follows:

"In case of the dissolution of the marriage by the decree of a court of competent jurisdiction, the community property, and the homestead, shall be assigned as follows: If the decree be rendered on any other ground than that of adultery or extreme cruelty, the com

* *

8"In construing wills, the testator's meaning and intention is, by the weight of authority, interpreted by the law of his domicile. Some states, however, hold that the law of the place where the land is situated governs. With reference to the operative effect of a will, and the rights of the parties under it, the lex loci governs in cases of real property." Burdick on Real Property, p. 658.

"Like title by devise, real property is regulated in its descent by the lex loci." Id. p. 660.

munity property shall be equally divided between the parties." Section 146.

"All property owned by the husband before marriage, and that acquired afterwards by gift, bequest, devise, or descent, with the rents, issues, and profits thereof, is his separate property." Section 163.

"All other property acquired after marriage by either husband or wife, or both, is community property." Section 164.

"Community property is property acquired by husband and wife, or either, during marriage, when not acquired as the separate property of either." Section 687.

She alleged that these sections are now in full force and effect, and have been at all times since the judgment was rendered; that the real estate in question was purchased by the defendant with money earned by her and the defendant during the marital relationship, and was not acquired by the defendant by gift, bequest, devise, or descent; also that the divorce decree was not rendered on the ground of adultery or extreme cruelty. She prayed that the court adjudge her one-half of the lots. The court dismissed her petition, and she appeals.

It will be observed that the plaintiff's whole case rests, not alone on the judgment of the California court, but on the statutes of California. The statutes of California have no force beyond the boundaries of that state. The Legislature of California may define what shall be community property in California, but these statutes are of no force in Kentucky. In adjudging the rights of the parties in community property, the California court, no doubt, had in mind property in California. Land titles are governed by the law of the forum. The title to these lots is in the defendant, and in him alone. The lots are not community property under the laws of Kentucky in any sense of the word. The petition shows that the lots were bought 15 years before the judgment for divorce, and, lying in Kentucky, they are not subject to the laws of California. Cornelison v. Browning, 10 B. Mon. 425; Townes v. Durbin, 3 Metc. 352, 77 Am. Dec. 176.

Section 2121, Ky. St., provides: "Upon final judgment of divorce from the bond of matrimony the parties shall be restored such property, not disposed of at the commencement of the action, as either obtained from or through the other before or during the marriage in consideration thereof."

Section 425 of the Civil Code of Practice also provides: "Every judgment for a divorce from the bond of matrimony shall contain an order restoring any property not disposed of at the commencement of the action, which either party may have obtained, directly or indirectly, from or through the other, during marriage, in consideration or by reason thereof; and any property so obtained, without valuable consideration, shall be deemed to have been obtained by reason of marriage. The proceedings to enforce this order may be by petition of either party, specifying the property which the other has failed to restore; and the court may hear and determine the same in a summary manner, after ten days' notice to the party so failing."

Those quoted

Similar statutes are in force in many of the states. from California constitute the laws of that state on the subject. When the California court adjudged the equal division of "the community property belonging to the plaintiff and the defendant," it simply followed the mandate of the California statutes; and, as these statutes have no extraterritorial effect, the natural construction of the judgment

is that it refers to property which is subject to the laws of California. Probably the clause quoted from the judgment is a general provision inserted in decrees of divorce in California in conformity to the statute, just as in this state every judgment contains an order for the restoration of property. But, however this may be, the California statutory definition of community property cannot be imported into Kentucky, so as to affect the title to real estate here, which must be determined by our own laws. There is nothing in the petition to show that the property in contest in any form, or the money that was put into it, was in California or subject to its laws, and therefore there is nothing in the case to charge the property with any trust. The allegations of the petition are too vague to show that the plaintiff is entitled to a restoration of any part of the property on the ground that the defendant obtained it directly or indirectly from or through her during the marriage or in consideration, or by reason thereof.

Judgment affirmed.

CHAPTER II

THE ACQUISITION OF PERSONAL PROPERTY

Section

1. Original Acquisition.

2. Rights of Finder of Lost Property.

SECTION 1.-ORIGINAL ACQUISITION

YOUNG v. HICHENS.

(Court of Queen's Bench, 1844. 6 Q. B. 606.)

Trespass. The first count charged that defendant, with force, etc., seized and disturbed a fishing sean and net of plaintiff, thrown into the sea for fish, wherein the plaintiff had taken and inclosed, and then held inclosed in his own possession, a large number of fish, to wit, etc., and that defendant threw another fishing sean and net within and upon the plaintiff's sean and net, and for a long time, to wit, etc., prevented plaintiff from taking the fish, so taken and inclosed, out of his sean and net, as he could otherwise have done, and drove, etc., the fish, whereby part of them died, part were injured, and part escaped, and the sean and net was injured. Second count, that defendant, with force, etc., seized, took, and converted fish of plaintiff.

Pleas: (1) Not guilty. Issue thereon.

(2) To the first count, as to preventing plaintiff from taking the fish alleged to be enclosed in his possession, and driving, etc., the said fish: That the fish were not plaintiff's fish, and he was not possessed of them, in manner, etc.; conclusion to the country. Issue thereon. (3) To the second count, that the fish were not the plaintiff's fish, in manner, etc.; conclusion to the country. Issue thereon.

On the trial before Atcherley, Serjt., at the Cornwall spring assizes, 1843, it appeared that the plaintiff had drawn his net partially round the fish in question, leaving a space of about seven fathoms open, which he was about to close with a stop net; that two boats, belonging to the plaintiff, were stationed at the opening, and splashing the water about, for the purpose of terrifying the fish from passing through the opening, and that, at this time, the defendant rowed his boat up to the opening and the disturbance, and taking of the fish complained of, took place. The learned serjeant left to the jury the question of fact whether the fish were at that time in the plaintiff's possession and also other questions of fact on the other issues. Verdict for plaintiff on all the issues, with damages separately assessed, namely, £568 for the value of the fish and £1 for the damage done to the net. *

LORD DENMAN, C. J. It does not appear almost certain that plaintiff would have had possession of the fish but for the act of the defendant; but it is quite certain that he had not possession. Whatever interpretation may be put upon such terms as "custody" and "possession," the question will be whether any custody or possession has been obtained here. I think it is impossible to say that it had, until the