TURNER vs. FENNER et als.

TURNER vs. FENNER et als. 1. The statute of frauds of this State does not apply to property brought into the State by a tenant for life holding under a deed or will exe.. outed beyond the State, although the tenaut for life and the remainder men residedin this State, at ¡the .time of the execution of the deed, or probate of the will, and continue to reside liege. 2. The law of the owner’s domicil nmst iu all cases determine the vab idity of every transfer or other disposition of personal property by the owner, whether j.t he inter fiivos or post mortem, unless there is some positive or customary law of the. country where it is situate providing for special c^ses, or from the nature of theparticular prop., erty it has a necessarily implied locality. Error to the Circuit Court of Lawrence. Tried before the Hon, Thomas A- Walker. This was an action of detinue for the recovery of two slaves, instituted against Turner, in October, 1847, by Joseph F. Fen»her, Thomas B. Fenner, Julius Johnson- and Mary, his wife-,» formerly Mary Fenner, and Thomas Bv Fenner,- who- sues as next friend for Richard H.,- Margaret E., Ann- M.- and Lucy M. Fenner, minors under the age of twenty-one.- The plaintiffs claimed under the will of John- Howson,- which they proved had been duly executed and admitted to probate in Halifax- county,North Carolina, where the testator died. This will created a life estate in the property in- controversy in Robert Fcnner, with remainder to his children, who are the plaintiffs. It was admitted to probate in North Carolina in November,- 1842.- A division of the testator’s estate was had in February, 1848, and in the month of April following, the negroes were brought to this State by Robert Fenner. The defendant claimed under a purchase at a sheriff’s sale on the 12th March, 1846, under an execution against Robert Fenner.- He also proved that said Robert Fenner and his children resided in Lawrence County, Alabama, prior to 1842,-. and continued to reside there until 1847,- and that said will had never been recorded in this State. The court charged the jury that it was not necessary that the will should be recorded in this State, under the statute of frauds, to protect the remainder from the creditors and purchasers of Robert Fenner, to which charge the defendant excepted. R. W. Walker and John A. Elmore, for plaintiffs in error: 1. The second section of our statute of frauds is not confined in its operation to any one or more classes of cases,- but embraces every conceivable one, where the possession is with one person, either with or without an interest, and an estate,-use or property, either present or future, is in another. — Clay’s Dig. 254, § 2 ; Myers 4. Peek’s Adm’r., 2 Ala. 648 ; Bank v. Croft, 6 ib. 622; Johnston v. Bank, 7 ib. 379; Tatum v.- Manning, 9 ib.' 144; Cook v. Kennedy, 12 ib. 42;' Felder v. Harper, ib. 612; Gressett v. Agee & Dumas, 14 ib.- 354; Craig v. Payne, 4 Bibb, 387 ; Davidson,- E-x’r. v. Nunnally, 3- B. Monroe, 534 ;■ Davidson v. Prewitt, 9 ib.- 103.- This court, in' construing the statute,- has decided that instruments executed or interests created in another State,- are not' within its provisions,- but the precise question- here presented Under the last clause of the statute has never been decided un-less in one case.. — Catterlin- v. Hardy,. 10 Ala.- 514;; Cook y„¡Kennedy, 12 ib. 42 ; Adams v. Broughton, 18 ib. 747; Thomas ,et al. v. Davis, 6 ib. 121; Smith v. Ruddle, 15 ib. 28; Lyde et al. v. Taylor, 17 ib. 270. Such a decision we insist cannot be sustained on principle or authority, and the question cannot be considered a settled one. The second section of the statute of frauds does not affect the validity of the contract or instrument, whether made here or •elsewhere; that is not the subject of legislation. The law does not regard the mode, or manner, or place in which the transaction takes place, but its provisions apply to the possession in this State. The moment this possession begins here, the law begins its operation on the possession, and declares that the possession here carries with it all the incidents of property, and for that reason makes it the property of the holder as regards third persons. It is not a mere registry act, but .a rule of property. —2 Ala. 648. It regulates the effect of the possession in this State, and this without reference to the place where the right to it was acquired or created, or where it was originally taken. It is a general principle, in fact, that the effect of the possession of personal property is regulated and determined by the laws of the State where such possession is held. These views are fully sustained by the following eases decided •on statutes identical with ours. — Beasley v. Owen, 3 H. & Munf. 456; Withers y. Smith, 4 Bibb J70; Boyd v. Stanback, 5 Munf. 305 ; Pate y. Barker, 7 Leigh 88; Collins y. Loftus, 10 ib. 5; McKissick v. MeKissick, 6 Humph. 75 ; Ferguson v. White, 1 A. K. Mars. 7 ; Baylor v. Sraither, 1 Littell 112; Davidson v. Nunnally, 3 B, Mon. 584$ Fightmaster v. Beasley, 7 J. J. Marsh. 410 ; Blair v. Dade, 9 B. Mon. 61; Davenport v. Prewitt, 9ib. 103 ; Mosely v. Williams, 3 How. Miss. 520; Lewis v. Gilmer, 3 Sm„ & Mar. 560. There may be difficulties in complying with the letter of the statute as to the time and place of registration, but the statute is to be liberally., not literally construed. Mere inconvenience cannot abrogate its provisions. It has been asked, how can the law be complied with, when the instrument has been made more than twelve months, or more than three years before the removal of the property to this State 7 It is a sufficient answer to say that these are not the facts of this case. The removal here took place shortly after the bill was rhacle, and when such a case as tlie one supposed afisés, it will be time enough to decide it. But undoubtedly the correct construction of the statute iá'j that proof and registration, as required by its provisions, at any timé within three years after the possession bégun in this State, would be a compliance. This has been expressly decided in other States on statutes of which ours is a transcript, vkrbatim et literatim. — Beasley v. Owen, S H. & Munf. 456; Ferguson v. White, 1 A. K. Mars. 7 Baylor v. Smither, 1 Littell, 1Í2"; Withers v. Smith,-4 Bibb 170; Pate v. Barker, 7 Leigh 88 ; Boyd v. Stanback, 5 Munf. 305 Lewis v.' Gilmer, 3 Sin. & Mar. 560; Mosely'v. Williams, 3 How. Miss.-520; Collins v.-Loftus, 10 Leigh 5. The argument ah inconvenienti applies with more force to a' mortgage executed in Georgia by a citizen of that State on personal property in this, than to" the present case. But such a mortgage, it has been- hold, is embraced by the act of 18231 Compare the two statutes. — Clay’s Big. 255, § 5 ; ib. 255 §' 2 ;• Hearing v. Lightfoot, 16 Alai 28 ; Beall v. Williamson. 2. But conceding the law to be as determined in Adams v. Broughton, and Lyde, et al. v; Taylor, and yét this case is not governed by it. Those cases simply decide that the statute does not apply to an instrument executed in another State between parties there resident, affecting property there situate, and'not in contemplation of the removal either of the parties or the property to Alabama. The law's of a'State must regulate all rights and estates which, in their inception, it is contemplated and intended shall be possessed and enjoyed by its citizens, and within its jurisdiction. Estates and "interests so created must be considered as made with a direct reference to the laws of the State in which they are intended to operate and have effect. — LeBréton v. Nou-chet, 3 Martin, 60 ; Kneeland v.' Easley, Meigs 620; Blanchard v. Russell, 13 Mass. 1"; Hale v. N. J. Co., 15 Conn'. 539; Carroll v. Remich, 7 Sm« & Mar, 798;'Story Conff. Laws, §§ 180-1-2, 194, 328. If," at the time this will "was executed, the slaves in controversy had been in this State, there can be no doubt, on principle and" authority, that this remainder would have been subject to the influence of the statute, — Déaringy. Lightfootj 16 Ala, 28'; = Vamura v, Camp, 1 Green N, J.-326'; Story Confl, §§ 388,, 390, 398, 410, THere can be no difference in legal effect 'between the actual'' presence of'the property here, when'the instrument i's executed,\ and the intention of the maker that it shall be brought and held here subject to the instrument, . The present case comes within this principle. The bequest of the life-estate in these slaves was designed to take effect and be enjoyed in Alabama^ It is of the essence of. a- gift that .it shall be enjoyed by -the donee somewhere. Here is a gift of a life estate in slaves, • to Robert Fenner, and it was of necessity in the contemplation of tho testator -that it was to be possessed by him somewhere, - Where 1 - When -the will was made, long before and long after Robert Fenner resided-in Lawrence Coun-ij, Alabama. Ho is described in the will as “ Robert Fenner, of Alabama,” Tho testator thus knew his place off residence; and the will was made with direct reference to it. •• Was it tho testator’s intention that the bequest was to be enjoyed in North Carolina or in Alabama 1 It is a-universal maxim of law that ce chattels follow tho domicil of tho owner,” and tho civilians say that the reason off it is, that “ as movables have no such fixed and perpetual situs as lands have, -it is necessary that their situs should depend on tho pleasure of the owner, and that they have the very situs which -lie wishes when they- have that of his own domicil.” — Story Confl, Laws, §§-377-8, -325,-(d) 325, (k) 405-, 862, Hence it is a natural,, sensible and legal presumption, that when a man is made the owner of personal property,. it is the intention of the party who makes him the owner, .that he shall hold the property in the place of -his domicil, and subject, there-lore, to the laws there prevailing, Tho donor of personalty must always be presumed to* intend that the donee shall hold it in the place where he lives, Not only the -life estate in the slaves was given to a citizen of Alabama,-but the remainder also. This strengthens the presumption that the testator intended that the bequest was to be possessed and enjoyed here. - Nowhere is a bequest-to a* citizen of this State intended to-bo enjoyed by 'him-ihere, -and held- here, - subject to a-limitation-in favor of third, persons,.also'citizens of Alabama, -whichwould ‘ not be valid without registration,. against creditors and purcha--sers, if the will making such beqpest.had. been executed in this • .State. If sucb a ease is not within the provisions of the statute, then they are worse than nugatory. If the statute does ...not apply to such a case, then by this law citizens of other States >are made a privileged class to commit frauds upon our own citizens. NicolsoN, contra, contended that if the will was properly probated in North Carolina, it is valid to pass personal proper,ty wherever situated. — Story on Confl. § 891; Swift v. Fitz-hugh, 9 Port. 39; Inge v. Murphy., 10 Ala. 894; Broughton v. Adams, 13 ib. 731; Lyde v. Taylor, 17 Al. 270. [MAJORITY — PARSONS, J.] PARSONS, J. This case has been argued upon our statute .of frauds. The counsel for the plaintiff in error does not contend that there is any difference under that statute, between wills and deeds, in respect to the necessity of registration in this ¡State. But he contends that if the property be brought into this State by a tenant for life holding under a deed, or a will, made beyond this State, the same must be recorded here according to tho statute, as if the will or the deed had been made here, and the property conveyed had been here. The substance •of his argument is, that the statute operates upon the possession merely, while held in this State, and its effect after three years possession here by the tenant for life, without any registration of the deed or will, is merely to postpone the remainderman to the creditors of tho tenant for life, or .to create a preference .over the remainderman, in favor of .a bona fide purchaser from tho tenant for life — to hold otherwise, that is to exempt foreign deeds .and wills from the operation of tho statute, which acts upon the possession in this State alone, without violating tho original title or rights ox tho remainderman, to the prejudice of our own citizens, and therefore not required by considerations of justice or comity. For several years I have been .aware of some of the authorities upon which the counsel relies, and I have occasionally felt tho force of the reasoning stated. The reasoning is, however, not all on one side. The court of appeals of Kentucky appears, from the cases cited by the counsel for the plaintiff in error, to have held different opinions at different periods, upon the general question with respect to foreign wills. But here the proposition as a general proposition, has been repeatedly and uniformly held, that our statute does not 'exteftd to a deed executed beyond this State, although the property may afterwards be brought and held here.—Catterlin v. Hardy, 10 Ala. 511; Inge v. Murphy, ib. 885; Adams v. Broughton, 13 Ala. 731-747 & 748; Lyde et al. v. Taylor, et al. 17 Ala. 270. In some of the cases it is suggested that there might be exceptions to the general rule, but those suggestions can have no application to this -case, and therefore, we do not dwell upon them. If the general rule, which is so fully settled here, Le wrong, it is better to adhere to it notwithstanding, than to violate rights which have grown up under it, as it has become a rule of property. Although the testator made his will in North Carolina, and resided and held 'the .property there-which is nowin controversy, and his will was .proved and established there, (and it may be added that his executor resided and assented to this legacy' there, and also, that -this property was allotted on a division under a judicial proceeding there to Robert Fenner, as the tenant for life,) yet it is contended, that as Robert Fenner, the tenant for life, and his children, the remain-dermen, resided and continued to reside in this State, the case should form an exception to the general rule. But such an exception, we think, would be inconsistent with the rule itself, and therefore inadmissible. The particular estate, as well as the remainder, had its inception, and was completed there. The will, the assent of the executor, &c., had complete effect there, under the laws of that State, without the slightest aid or influence of our laws. There, as has been said, the .property was-, and the testator lived and died. Lord Loughborough said, “If. •is a clear proposition, not only of the law of England, but of every country _,in the world, where law has the semblance of science, that personal property has no locality. The meaning of that is, not that personal property has no visible locality-, but that it is subject to that law which governs the person of the owner. With respect to the disposition of it, with respect to the transmission of it, either by succession or the act of the party, it follows the law of the person. The owner in any country may dispose of his personal property. If he dies, it is not the law of the country out of which he was a subject, that will regulate the succession. For instance, if a foreigner having property in the funds here, dies, that property is claimed according to the right of representation given by the law of his otyn country. In the case of Pipon v. Pipon, Ambl. 25, a party bad5 possessed himself of a debt which was due to the intestate, a subject of Jersey, and whoso personal property-was therefore governed by the law of Jersey- Lord Hardwicke was applied 'to by his other relations, resident in England, stating that they should'be excluded from a share according to the distribution of Jersey, but that they should'be entitled'to a share according to the distribution of England j- and they therefore prayed by their bill, that the administratrix might be restrained from taking the property, io Jersey.. Lord Hhrdwiclce very wisely and justly determined that he would not restrain the administratrix, he would not direct in what manner she was to dispose of the property, or to distribute it. Having acquired the right to it, she was to dis-iribute it according to 'the law which guided the succession to tiro personal' estate of the intestate.”—Sill v. Worswick, 1 H. Black, 690. As to personal property, the law of the owner’s ■iomicil is in all cases to determine the validity of every trans-n-r, or other disposition made by the owner, whether it be inter •dvos or post mortem, unless there is some positive or customary law of the country where it is situate, providing for special «•ases, or from the nature of the particular property, it has a necessarily implied locality, as contracts respecting the public funds, stocks, &e. — Story’s Conflict of Laws, § 888. There is •m exception to the general rule, of contracts made in view cf the laws of another country, but that is not material here. If the property in question had been in this State when the will took effect, or if the will had required it to be brought here, the ease would have been varied in its facts,, but it is not necessary now •*.> determine their effect. This ease is clearly within the decisions of this court heretofore made» The judgment is affirmed.