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Hence, the question arises, whether a deed, executed in Indiana, between her citizens, for land in another state, but containing no covenants whatever by the law of Indiana, shall be construed as containing, by implication, such covenants as would, by the law of the state where the land lies, be regarded as contained in the deed. This is an interesting and a somewhat novel question. We have been furnished with able briefs by counsel for the respective parties, who have cited the general authorities upon the point, but yet no case has been found entirely in point.

There can be no doubt that the law of Missouri, alone, can be looked to in order to determine whether the deed in question was sufficient to pass the title. In the sale and conveyance of real estate, so far as regards the capacity of the parties to convey and hold, respectively, the formalities necessary to a valid transfer, the dominion and enjoyment of the same by the vendee, and the right of succession thereto, and all other incidents to the acquisition of the land, the lex rei sitæ governs. But it does not, therefore, necessarily follow that the lex rei sitæ so far governs conveyances made elsewhere, as to change their character as mere conveyances and invest them with the character of personal covenants not necessary to the transmission of the property. We are referred by the counsel for the appellee to the case of McGoon v. Scales, 9 Wall. 23, 19 L. Ed. 545, in which Mr. Justice Miller said: "It is a principle too firmly established to admit of dispute at this day, that to the law of the state in which land is situated, we must look for the rules which govern its descent, alienation, and transfer, and for the effect and construction of conveyances."

This was said, however, in reference to the question whether the title did actually pass by a certain deed. The question was, whether "the effect and construction" of the conveyance were such as to pass the title. As we desire to decide nothing but the exact question presented here, and as the distinction between covenants running with the land and those not running with the land may perhaps be supposed to enter into the question, we proceed to consider the character of the covenant alleged to have been broken.

The supposed covenant, of which a breach is alleged, is the covenant of seizin. And it is alleged that the land was never in the possession of the defendant or the plaintiff. There are some cases holding that the covenant of seizin runs with the land, where the grantor was in possession and delivered possession to the grantee. But all the cases, so far as we are advised, hold that, where the grantor is not in possession and does not deliver possession to his grantee, the covenant of seizin, if the grantor had no title, is at once broken and does not run with the land. In the case of Chambers' Adm'r v. Smith's Adm'r, 23 Mo. 174, it was held, that "if there be a total defect of title, defeasible and indefeasible, and the possession have not gone along with the deed, the covenant is broken as soon as it is entered into, and

can not pass to an assignee upon any subsequent transfer of the supposed right of the original grantee. In such case, the breach is final and complete; the covenant is broken immediately, once for all, and the party recovers all the damages that can ever result from it. If, however, the possession pass, although without right-if an estate in fact, although not in law, be transferred by the deed, and the grantee have the enjoyment of the property according to the terms of the sale, the covenant runs with the land and passes from party to party, until the paramount title results in some damage to the actual possessor, and then the right of action upon the covenant vests in the party upon whom the loss falls."

The supposed covenant in this case, then, was one that did not run with the land; it was purely personal and broken as soon as entered into; it was not so connected with the land that any subsequent grantee thereof could take advantage of it. The question is therefore narrowed down to this: Can a deed, executed in Indiana, between citizens thereof, containing no covenants whatever according to the law of Indiana, be held, by virtue of the law of Missouri, where the land lies, to contain a covenant not running with the land but broken as soon as entered into? We think this question must be answered in the negative. A covenant of seizin not running with the land is purely a personal covenant, broken as soon as made, and has nothing whatever to do with the transmission of the title to the land. As a general rule the lex loci contractus determines the construction and effect of contracts. And we think that where a deed is made, as above stated, the question whether it contains such a covenant is to be determined by the law of the place where it is made.

The case does not fall within another rule of law well established, viz., that where a contract is to be performed in a place different from that in which it is made, the law of the place of performance is to govern the contract. Here, the contract was completely executed and was not executory. By the terms of the deed there was nothing further to be done by the grantor, either in Missouri or elsewhere. There were no stipulations that bound him to the performance of any future act. Whatever title did or could pass by the deed passed immediately upon its execution and delivery, and there was nothing further to be done by the grantor.

As the deed was executed in Indiana, and as the parties resided therein, it would seem that they accepted the law of Indiana as the exponent of the rights conferred and obligations imposed thereby, beyond the mere passing of the title. The case of Thurston v. Rosenfield, 42 Mo. 474, 97 Am. Dec. 351, is closely analogous in principle. Rosenfield failed in business in New York, and in that state made an assignment of his effects, including certain real estate in Missouri, in which assignment certain creditors were preferred. The assignment was regularly executed and acknowledged, so as to pass the title to

the land in Missouri, but according to the laws of Missouri it was void on account of the preference given to some of the creditors. But it was held, as the parties were residents of New York and New Jersey, and as the assignment was valid by the law of New York where it was executed, and as the policy of the Missouri law was to deny preferences in that state, that the assignment was governed by the law of New York, and it was upheld accordingly. See Whart. Confl. Laws, § 276.

The law of Missouri can not extend beyond her territorial limits so as to make an instrument containing no covenants, executed in another state, between citizens thereof, contain such a covenant as that alleged here to have been broken. The case of Carver v. Louthain, 38 Ind. 530, was an action upon the covenants contained in a deed for the conveyance of land situate in the state of Illinois. The question does not seem to have been made whether the covenants were governed by the law of Illinois, or otherwise. But the case was decided upon the theory that the law of Indiana was applicable to it. The case is, of course, less authoritative upon the point than if the question had been made.

We are of opinion that the second paragraph of the complaint failed to state facts sufficient to constitute a cause of action, and that the demurrer thereto should have been sustained.

The judgment below is reversed, with costs, and the cause remanded for further proceedings in accordance with this opinion.14

PLATNER v. VINCENT.

(Supreme Court of California, 1921. 187 Cal. 443, 202 Pac. 655.) [The defendant and her deceased husband conveyed to the plaintiff by a bargain and sale deed certain real property in the state of Washington. The grantors resided in the state of California and executed the deed in that state. The operative words of the deed "have granted, bargained, sold and conveyed, and by these presents do grant, bargain, sell and convey" conveyed according to the law of Washington to the grantee, his heirs or other legal representatives, an estate of inheritance in fee simple, and constituted an express covenant to such grantee, heirs or other legal representatives that the grantor was seized of the property in fee simple, free from incumbrances, and for the quiet enjoyment thereof. The plaintiff sued the defendant for a breach of the covenant and the defendant set up by way of demurrer (1) that the court had no jurisdiction of the subject-matter; (2) that the plaintiff had no cause of action.]

14 See 17, L. R. A. (N. S.) 1094; L. R. A. 1916A, 1027.

SHURTLEFF, J. [In regard to the first point the learned court held that plaintiff's action was transitory, and that the court had, therefore, jurisdiction.]

Having determined, therefore, that the defendant's objection to the jurisdiction cannot be sustained, we pass to the discussion of her contention that neither count of the amended complaint states a cause of action. All agree that the solution of this question depends upon the nature and extent of the covenants, if any, arising from the presence in the deed executed by the Vincents of the words "granted, bargained, sold and conveyed, and by these presents do grant, bargain, sell and convey," which involves the further inquiry whether the laws of California, where the deed was executed and the grantors resided, or the laws of Washington, where the land is situate, govern and are controlling in solving the problem. A determination in favor of the state of location of the land practically disposes of the proposition, because it then becomes a question of interpretation and application of the law of Washington, which fortunately, is free from difficulty. We are satisfied that upon the weight of authority, as well as upon reason, the effect and construction to be given a deed must be determined by the laws of the state in which the lands it conveys are located, irrespective of where it may have been executed, or the grantors reside.

In McGoon v. Scales, 9 Wall. (76 U. S.) 23, 27 (19 L. Ed. 545) it is said: "It is a principle too firmly established to admit of dispute at this day, that to the law of the state in which land is situated must we look for the rules which govern its descent, alienation, and transfer, and for the effect and construction of conveyances." And this is true, wherever they may be made.

In Thompson v. Kyle, 39 Fla. 582, 23 South. 12, 63 Am. St. Rep. 193, the court uses the following language: "It is * * * almost universally held that so far as real estate or immovable property is concerned, we must look to the laws of the state where it is situated for the rules which govern its descent, alienation and transfer, and for the construction, validity and effect of conveyances thereof."

In Dalton v. Taliaferro, 101 Ill. App. 592, 596, it is said: "We are of opinion that the meaning and validity of the words of grant, and of the words supposed to create covenants running with the land, must stand or fall together, and therefore must be governed by the same. law. If a deed of land in Illinois be executed in Maine or Germany it would be unreasonable to say that while its sufficiency to transfer title must depend alone upon the laws of Illinois, yet we must resort to the laws of Maine or Germany to ascertain the existence and construction of covenants which are inseparable from the land, are annexed to the estate granted, can pass only with the grant of the land, and depend for their validity upon privity of estate between covenantor and covenantee. We therefore conclude that in a deed of conveyance of real estate, covenants running with the land are to be control

led and construed solely by the law of the state where the land is situated."

It is our opinion that the covenants upon which the amended complaint is predicated must be construed and their scope ascertained from, and measured by, the law of Washington, which, so far as applicable, is, to repeat, as follows: That the words "bargain, sell and convey" shall be adjudged an express covenant "to the grantee, his heirs or other legal representatives," that he the grantor, "was seized of an indefeasible estate in fee simple, free from incumbrances, done or suffered from the grantor * * * as also for quiet enjoyment against the grantor, his heirs and assigns, unless limited by express words contained in such deed, and the grantee ✶ ✶✶ and assigns may, in any action, recover for breaches, as if such covenants were expressly inserted." It will be noted that the statute in plain terms declares that the covenants in and by it provided shall be express as distinguished from implied, which, in substance, reads them into the deed and makes them part thereof as completely and effectively as they would be were they in terms written therein, from which it follows that the respondent, by the execution of the deed set out in the amended complaint, expressly stipulated that she was seized of the property in it described, in fee simple, free from incumbrances, and for the quiet enjoyment thereof by the appellant.

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SECTION 2.-MOVABLES

I. TANGIBLE

CAMMELL v. SEWELL.

(In the Exchequer Chamber, 1860. 5 Hurl. & N. 728.)

[Trover for deals, with a count for money had and received. At the trial a verdict was taken for the plaintiffs, subject to a special case. [The material facts were in substance as follows: The plaintiffs are underwriters at Hull; the defendants, merchants in London. The action is brought to recover a part of a cargo of deals shipped on board a Prussian ship at Onega, Russia, by the Onega Wood Company, for Messrs. Simpson & Whaplate, of Hull, and by them insured with the plaintiffs for £1,150.

[The vessel, having put into, Haroe Roads, Norway, in consequence of the shifting of her deck cargo, drove from her anchorage on the

15 See notes, 35 Harv. Law Rev. 964 (1922); 9 Cal. Law Rev. 234 (1921).

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