
    *John Kanaga v. Jonah R. Taylor.
    Where K., residing in the State of New York, took a chattel mortgage from G., who resided in the same place, conditioned to secure part of the purchase money from the chattel which was the subject of the mortgage, in three monthly installments, and the mortgage was registered in the proper office of the same state, and there became valid between the parties, and G. afterward, before breach of the condition, removed into Ohio, taking with him the chattel, without the knowledge or consent of K., and there made sale of it to a third party, an action by the mortgagee will lie, in this state, to recover the value of the property from the purchaser, although he may have bought it without notice of the mortgage lien.
    Where personal property has been mortgaged in another state, and the mortgage is recorded in the town where the mortgagor and mortgagee reside and where the property is held at the time of the execution of the instrument, a subsequent removal of the mortgagor to this state does not render a new record or filing of the mortgage here necessary.
    By the law of comity between different states, the lex loci contractus controls as to the validity and construction of personal contracts, though not as to the remedy or rule of evidence; nor where it clashes with the rights of our own citizens, or the policy of our own laws.
    Motion for new trial.
    Reserved in the district court of Cuyahoga county.
    The plaintiff in his petition, which was filed March 2,1854, claims, that ever since the 17th of September, 1853, he has, by virtue of a chattel mortgage, been the rightful owner of a certain piano forte, and that the defendant, at the time aforesaid, came into possession of said piano, knowing it to be the property of plaintiff, and has refused to deliver it to plaintiff, although it has been demanded, and has converted it to his own use; by reason whereof, the plaintiff claims he is entitled to recover of him the amount due on said mortgage, being $157.00, with interest from September 17, 1853.
    The defendant, in his answer, denies that the plaintiff has any right either of property in, or possession of, said piano; and says he purchased it on or about September 17, 1853, of one Henry Moore, an auctioneer, and has himself the right both of property in, and possession of, said piano.
    *The jury, under the charge of the court, having found a verdict for plaintiff, the defendant moved for a new trial, because:
    
      1. The court did not charge the jury as requested by defendant’s ■counsel in any particular.
    2. The court erred in the charge which it gave to the jury.
    3. The verdict was for plaintiff, when it should have been for defendant.
    From the bill of exceptions the following facts appear:
    On the 17th day of June, 1853, the plaintiff, at Buffalo, New York, •sold a piano forte to one William Gregory, of that place, for $225.00, to be paid for as follows: $25.00 in hand, and $661&$r every thirty days, until the whole was paid, with interest.
    The $25.00 was paid in hand, and a mortgage was executed on the piano by Gregory to the plaintiff, to secure the balance, and the ■piano was delivered over to Gregory, and taken by him to his residence in Buffalo. Plaintiff had no knowledge or expectation that the piano was to be removed from Gregory’s dwelling-house; but ■it was taken with the understanding that it was to remain in his family for his private use, and that plaintiff was to keep it in tune ■one year.
    The mortgage was registered in the office of the clerk of Erie ■county, at Buffalo, New York, June 17, 1853, and became valid by the laws of that state.
    Two weeks after the execution of the mortgage the plaintiff called at Gregory’s house and ascertained that the piano had been previously boxed up, and that Gregory had removed to Cleveland, Ohio, taking it with him.
    It was proved by the testimony of Henry Moore, a witness called by defendant, that on the 12th of July, 1853, Gregory came to ■him, representing himself to be a resident of Cleveland, Ohio, but that he had lately come from Buffalo, New York; that said Moore was, at the time, an auctioneer and commission merchant in Cleveland ; that Gregory brought the piano to him and wanted an advance of one hundred dollars, which Moore made, and took of Gregory the following instrument:
    “Received, Cleveland, July 12, 1853, of H. Moore, one hundred dollars, advanced on a piano forte, to be sold at auction at the expiration of sixty days, «unless the money be returned. In .the meantime, to he held at private sale for two hundred dollars. I agree to pay at the rate of five dollars per month, to include interest, commission, and storage. William Gregory,
    
      “For L. Maiten, Bedford, Ohio.”
    
    
      On the 22d of July, 1853, Gregory applied to Moore for a further advance upon the piano, when the latter gave him twenty-seven dollars, and took from Gregory a paper of the following tenor :
    “Received, Cleveland, July 22, 1853, of Henry Moore, twenty-seven dollars further advance on piano forte, now in his possession, and unless I return the said sum of twenty-seven dollars to him by the 11th day of August, 1853, then the said piano is absolutely his, and I hereby agree to warrant and defend him in possession of the same. William' Gregory.”
    Moore asked Gregory if there was any claim against the piano. Gregory told him there was not. Moore said that it was a question which he always asked when property was left with him for sale,, and he was unacquainted with the parties. Moore further stated that he never heard of any lien or claim being on or against said piano, until late in the fall of 1853, and some two or three months-after the sale to the defendant, when he was notified of the mortgage, and the piano demanded. That previous to selling the piano-, to the defendant he sold it to another person for his (Moore’s) benefit, and after that sold”it to the defendant, at private sale, for $175.00.
    .No steps were taken by plaintiff for several months after Gregory left .Buffalo, taking the property with him to make known his-claim, or recover the property.
    Nor was the mortgage deposited for record in any clerk or recorder’s office in Ohio. Gregory made payment on the mortgage, so as to reduce the amount at the commencement of this suit to-$157. The defendant and Moore were citizens of Ohio at the times-aforesaid.
    This state of facts appearing, the defendant’s counsel requested the court to charge the jury:
    1. That the mortgage can not be enforced in this state, as a eon-tract made in New York, except by comity, and that by *eomity it can not be enforced, when it clashes with the rights of our' own citizens.
    2. That if the piano forte was in the State of Now York when the mortgage was executed, and was left in possession of the mortgagor, and by him brought to the city of Cleveland and pledged or sold to a citizen of Ohio for a valuable consideration paid, and without any notice of the plaintiff’s claim, the plaintiff can not recover in this action, unless the mortgage was deposited in the proper office, in Ohio, as required by “ an act to require mortgages or bills-of sale of personal property to be deposited with township clerks.”
    3. That if the mortgagee, after said piano forte was brought to Cleveland from Buffalo, by the mortgagor, delayed an unreasonable time to pursue said property, and take it, or give notice of his claim on the property, by depositing his mortgage as is required by the-aforesaid law of this state, or otherwise to give notice of his claim, and in the meantime the property was sold or pledged to a citizen of Ohio for a valuable consideration paid, without notice of the-plaintiff’s claim, then the plaintiff could not recover. This charge the court refused to give.
    The court directed the jury — That the mortgage upon which plaintiff bases his right to' recover in this action, being a mortgage-executed in the State of New York, and the property and parties-being there at the time the mortgage was executed, if the mortgage was valid by the laws of the State of New York, it was valid here, and would entitle the plaintiff to recover, and it was not necessary for him to deposit the mortgage for record in any office in Ohio. That leaving the property' in the possession of the mortgagor, and permitting him to remain in possession of it, was prima facie evidence that the mortgage was fraudulent in fact, but this presumption was liable to be rebutted by testimony showing that the transaction was fair and honest, and founded upon a good consideration. That if such presumption of fraud was rebutted, the fact that the-property was taken to Cleveland, and there sold to a citizen of Ohio, or pledged for a valuable consideration paid, without notice of the-mortgage, the plaintiff was still entitled to recover, as against said purchaser or pledgee, *and the mere right to pursue after said mortgaged property for the time it appears by the testimony in this case to have been omitted, and retake it, or deposit his mortgage in the proper office, as required by the laws of Ohio above named, would not prevent the plaintiff’s recovering, so long as said mortgage was kept good by the laws of the State of New York; and the fact that interests of citizens of Ohio were to be affected in this action, made no difference, as they could claim no better or greater privileges than if they were citizens of the State of New York.
    To which charge, and refusal to charge, defendant excepted, and now asks for a new trial.
    
      
      Bishop, Backus &-Noble, for defendant,
    in support of the motion •for a new trial, urged the following points:
    1. We claim that the plaintiff’s lien by virtue of his mortgage, was lost by the mortgagor’s bringing the property into the State of Ohio and disposing of it to a citizen of Ohio, by pledging and afterward selling it, without the pledgee or purchaser having any knowledge of the plaintiff’s mortgage. Story Confl. Laws, secs. 244, 323, 326; Ingraham v. Greyer, 13 Mass. 146, 147; Skiff v. Solace, 23 Vt. 279; Potter v. Brown, 5 East, 124; Martin v. Hill, 12 Barb. 632.
    2. The plaintiff’s claim should fail, because to enforce it would ■not only prejudice the rights of our own citizens, but it would contravene our own positive law and policy. Story Confl. Laws, secs. 323-328; Swan’s Rev. Stat. 315; 2 Hilliard on Mortg. 212, 244, 250; Leland v. Medora, 2 W. & Minot, 103.
    3. If the plaintiff’s claim was ever available in this state, it was by comity, and it would work injustice to enforce it against the defendant, and therefore it can not prevail.
    It is a principle well established, that comity will never require the tribunal where the remedy is sought, to enforce a claim arising under a foreign contract, so as to work injustice, but the court enforcing this claim will look to the justice of the case. If the justice ■of the case is regarded here, the defendant certainly must succeed. Wrightman v. Steamboat Albree, American Law Reg., vol. 4, Nos. 1 and 2, p. 119.
    *For the courts of Ohio to enforce the plaintiff’s mortgage .against the defendant, would contravene the principle so clearly settled in Selsor v. Brock, 3 Ohio St., 308, “ that where one of two innocent persons must suffer by the fraud of a third person, he who trusted the third person, and placed the means in his hands to ■commit the wrong, must bear the loss.” See also Root v. French, 13 Wend. 572.
    In this case the plaintiff is trebly in fault. 1. He left the propperty in the mortgagor’s hands, thus enabling him to pass it off to an innocent purchaser or pledgee, without notice of his claim ; 2. He did not send his mortgage to Cleveland and deposit it in the proper office; 3. _ETe delayed for months to pursue after and look up the property. And by these means ho gave Gregory abundant opportunity to deceive others, of which opportunity he availed him.self most fully. See Story’s Confl. Laws, see. 386, note 1. Also 4 Mass. 467.
    
      
      Willey & Cary, for plaintiff, argued:
    That a ease of this description is not within the letter or spirit, of our statute; that the plaintiff is entitled to the enforcement of his mortgage in the same manner as if no legislation upon the subject had transpired; that to enforce it would neither prejudice the rights of our own citizens, in the sense to which that principle is limited, nor contravene any law or polieyof Ohio; that the claim of the plaintiff was not impaired by his omission to record his-mortgage in Ohio, nor by the comparatively brief interval which elapsed after the property was removed, nor by any act of his-tending to the prejudice of third persons.
    The plaintiff was entitled to a recognition of his mortgage lien. Roland v. Gowdy, 5 Ohio, 200; 1 Kent Com. 262; 5 Serg. & Rawle, 130; Hooban v. Bidwell, 16 Ohio, 509; Coles v. Clark, 3 Cush. 399; 2 Hill. Mort. 315, secs. 4-7; Brown v. Bement, 8 Johns. 98; Langdon v. Buel, 9 Wend. 83; Ackley v. Finch, 7 Cow. 292; Whitney v. Heywood, 6 Cush. 82; 1 Cow. 496; 12 Met. 310; 2 N. Y. Rev. Stat. 318, secs. 9,10; Supreme Court of N. Y. (McNett’s Dep.), Martin v. Hill, 12 Barb. 631; Story’s Confl. Laws, secs. 391, 402; *p. 668, sec. 402; p. 366, secs. 35, 242, 390-402; Offutt v. Flagg, 10 N. H. 46; 2 Hill. Mort. 258, see. 31; Hoit et al. v. Remick, 11 N. H. 285; Brigham v. Weaver et al., 6 Cush. 298; Longworthy v. Little, Law Rep. Nov. 1853, 410, (C. J. Shaw); Strang & Simpson v. J. G. Tenant et al. (Dis. Ct. Hamilton Co.); 2 Hill. Mort. 221, sec. 40; Lane v. Borland, 2 Shepp. 77.
   Bowen, J.

The motion for a new trial, in this case, is urged by the counsel for defendant, on the ground, mainly, that the plaintiff’s-lien, by virtue of his mortgage, was lost by the mortgagor’s bringing the property into this state and disposing of it here, to a purchaser having no knowledge of the mortgage.

It is admitted that the instrument, under which the plaintiff claims to recover, was valid in New York. It was not only executed, as the law there requires it should be, but it was-registered in accordance with the statute, in the town where' both parties resided, and the possession and use of the chattel, by the mortgagor, were there fully sanctioned by law. Before any breach in the payment of the money had occurred the property was removed into this state, and became subject to our laws. This removal was without the plaintiff’s permission, and if the transaction be closely scanned, it was, as to the mortgagor, an act not characterized by too strict regard to integrity, or the rights .and expectations of the mortgagee. Almost as soon as he arrived in Cleveland, he began to manifest an intention to defeat the plaintiff’s security. He at first assumed to pledge it to Moore, as the property of another, and not his own. He apprised Moore, however, that he had just come from Buffalo. . After getting as much for the piano as he could, by the devices which he adopted, he allowed it to be sold, knowing, quite well, that he had not paid for it, and that the security might, and as he doubtless supposed would, by such act of his, be entirely cut off as to the mortgagee, who had sold him the property. There is nothing to show the least want of diligence on the part of the plaintiff. The money secured by the mortgage, became due on the 17th of September, 1853, on which day the sale was made to the defendant in Cleveland. *This action was commenced in March following, by .a citizen of New York. Shall he be allowed to enforce his lien, under the mortgage, in the courts of this state?

The statute law of New York, in regard to the record of chattel mortgages, is, in the object and spirit of it, almost identical with ours. Mortgages, or bills of sale of personal property, and intended to operate as such, must be accompanied by an immediate delivery, and be followed by an actual and continued change of possession of the thing mortgaged, or the instrument deposited with the clerk of the township where the mortgagor resides, or if a non-resident, where the property shall be at the time of its execution, else, by the law of this state, the mortgage is void as against the creditors of the mortgagor, and as against subsequent purchasers and mortgagees in good faith. Stat. 315. The law of New York is founded in the same policy, and contravenes no rights of our citizens, and is not at variance with any law, nor in violation of any principle of our government, either civil, political, or moral. Had the same mortgage been executed and filed for record here, it would be our ■duty to give it effect and protect the parties in their rights under it. The registry of such instruments is required to be made at the place of the transaction, or where the mortgagor may reside, in order to convey notice to others who may wish to become interested as purchasers or lienholders in the same property. It gives to the public the means of learning what has been transacted in relation to the incumbrance of property, and of deriving benefit, from a knowledge of it, which, in the absence of such salutary regulation, would be in the secrets only of the immediate parties interested, and might lead to the perpetration of fraud upon innocent persons. When that act is done which is necessary to give validity to the contract, at the time, and in the place and manner pointed out, the whole duty, in regard to it, is at an end. It is not made necessary to go into other townships, nor into other states, to procure hew registrations. The law has, for wise purposes, omitted any such requirement. Holding this instrument, then, as the plaintiff did, as a legal and valid one, by the law in force where he obtained it, he was entitled to enforce it; but as *the power to do that had been cut off by the removal of the property beyond the jurisdiction of the state, it was proper for him to sue in the courts of this state, and to derive the same relief by his action, as if he were pursuing a remedy where the contract was made. Offutt v. Flagg, 10 N. H. 46; Martin v. Hill, 12 Barb. 632.

It is a general rule of international law, that the rights of the parties to a contract, as distinguished from their remedies, are to be determined by the law of the place where the contract is to be performed. If a contract be made in one state or country, and it appears upon its face that it is to be performed in another, it will be presumed that the contract was entered into with reference to the laws of the latter, and those laws will be resorted to in ascertaining the validity, obligation and effect of the contract. This general rule, however, has its exceptions ; one of which is, that where a contract; is declared void by the law of the state or country where it is made, it can not be enforced as a valid contract in any other, though, by its terms, it was to have been performed there. Hyde v. Goodenow, 3 Conn. 266. So, if the law Of another government is in conflict with our own system of jurisprudence, or contravenes the policy of our government, there is no rule of comity or of international law which imposes on us the least duty to observe it.

In this case, as has already been shown, the New York law of chattel mortgages is entitled to full consideration for its harmony with our own law upon the subject, and we feel no hesitation in giving effect to it.

Gregory held the property subject to the condition of the mortgage, which was the payment of the money, as specified therein, or in ease of default, the plaintiff was authorized to take possession of, and to sell it. The default occurred after the property had been removed into a foreign jurisdiction. Gregory had no power to confer .any better title than he held; and those who might desire to-purchase of him, were bound by the rule of caveat emptor. True, there was no record of the mortgage in Ohio, but Gregory was a stranger to Moore, and apprised him that his late residence was Buffalo. This ought to have excited inquiry by *Moore, which might quite as well have been instituted in Buffalo as in another county of this state. He can not charge upon the plaintiff the consequences of this neglect of his. He took the property subject to the incumbrance upon it; and that amount, we think, was very properly found and reported by the jury in favor of plaintiff.

The motion for a new trial is overruled, and a judgment may be-entered on the verdict.

Swan, Brinkerhoee, and Scott, JJ., concurred.

Bartley, C. J.,

concurred in the judgment of the majority of the court, but differed as to the grounds upon which the majority placed it.  