
    No. XX.
    Wm. G. Hill v. Wm. McDermot et Ux.
    (See .)
    
      Appeal from Brazoria County.
    
    
      
      .—Hill v. McDermot, p. 419.
      Courts do not take judicial notice of laws of another State or country, and they must be alleged and proved as other facts. Huff v. Folger, Dal., 530; Cooke v. Crawford, 1 T., 9; Crosby v. Huston, 1 T., 203; Bryant v. Kelton, 1 T., 434; Smith v. Smith, 1 T., 621; Ramsay v. McCanley, 2 T., 189; Jones v. Laney, 2 T., 342; Hill v. George, 5 T., 87; Trigg v. Moore, 10 T., 197; Able v. McMurray, 10 T., 350; Sadler v. Anderson, 17 T., 245; Anderson v. Anderson. 23 T., 639; Armendiaz v. Serna, 40 T., 291; M. K. & T. Ry. Co. v. Cocreham, 10 T. C. A., 166; Western Union Tel. Co. v. Russell, 12 T. C. A., 82; Rosenthal Millinery Co. v. Lennox (T. C. A.), U. R. C., 1899. Written laws of other countries must be proven by authenticated copies, but unwritten may be proven by oral testimony. Hill v. McDermott, Dal., 419; Burton v. Anderson, 1 T., 93; Smith v. Smith, 1 T., 621; Martin v. Payne, 11 T., 292; Ellis v. Wiley, 17 T., 134; Mexican Nat. Ry. Co. v. Ware (T. C. A.), U. R. C., 1900; Dumas v. State, 14 T. App., 464; Patterson v. State, 17 T. App., 102. Practice in Texas to permit intelligent Mexicans to testify as to construction of laws of Spain and Mexico. State v. Cuellar, 47 T., 295; State v. De Leon, 64 T., 553. Collections of laws of other countries, purporting to be printed and published by authority of such countries, are admissible to prove themselves. Burton v. Anderson, 1 T., 93; Martin v. Payne, 11 T., 292; Ellis v. Wiley, 17 T., 134; Texas Express Co. v. Beissner, 1 App. C., sec. 762; Patterson v. State, l7 T. App., 102; Fernandez v. State, 25 T. App., 538. Nature, validity, obligation, construction and interpretation of contracts are determined by the lex loci contractus, unless a different place is fixed by the parties for performance. Tinnen v. Mathews, Dal., 491; Huff v. Folger, Dal., 530; Scott v. Maynard, Dal., 548; Gautier v. Franklin, 1 T., 732; Hays v. Cage, 2 T., 501; Snoddy v. Cage, 5 T., 106; Andrews v. Hoxie, 5 T., 171, 189; Campbell v. Wilson, 6 T., 379, 390; Raymond v. Holmes, 11 T., 54; Hall v. Harris, 11 T., 300, 305; McLeod v. Board, 30 T., 238; Cantu v. Bennett, 39 T., 303; Weider v. Maddox, 66 T., 372; Life Assn. v. Harris, 94 T., 25; Apollos v. Staniforth, 3 T. C. A., 502; Merrielles v. State Bank, 5 T. C. A., 483; Tilliard v. Hall, 11 T. C. A., 381; M. K. & T. Ry. v. Thompson, 11 T. C. A., 658; M. P. Ry. v. Harris, 1 App. C., sec. 1265. By place of performance. Ryan v. M. K. & T. Ry., 65 T., 13; Seiders v. Life Assn., 93 T., 194; Life Assn. v. Harris, 94 T., 25; Good v. Caldwell, 11 T. C. A., 515; Applebaum v. Bates, 3 App. C., sec. 167. If to be partly performed in different States, intention of parties governs. Ryan v. M. K. & T. Ry., 65 T., 13. Seems that marriage contracts are an exception to general rule, of lex loci contractus. Shreck v. Shreck, 32 T., 578. If subject of contract is land, the lex loci rei sitas governs. A mortgage executed without the State, contrary to its laws of public policy, is void. Cantu v. Bennett, 39 T., 303; Fowler v. Bell, 90 T., 150. Contract valid under lex loci contractus is valid everywhere, unless in contravention of lex fori. If void under lex loci contractus, void everywhere. Andrews v. Hoxie, 5 T., 171, 1⅝9; Shelton v. Marshall, 16 T., 344; Ryan v. M. K. & T. Ry., 65 T., 13; Weider v. Maddox, 66 T., 372; Fowler v. Bell, 90 T., 150; Tuckett v. Herdic, 5 T. C. A., 690; T. & P. Ry. v. Davis, 2 App. C., sec. 191. If lex loci contractus is not alleged and proved, lex fori will be applied. M. K. & T. Ry. v. Cocreham, 10 T. C. A., 166. Whether a writ is wrongfully sued out, is determined by the laws of the State where it was obtained. Wiley v. Trawick, 14 T., 662. Where husband and wife move from one State to another, title to property acquired before removal is determined by the laws of the former. Parks v. Willard, 1 T., 350; Warren v. Dickerson, 3 T., 460; McIntyre v. Chappell, 4 T., 187; Nimmo v. Davis, 7 T., 26; Avery v. Avery, 12 T., 54; Vardeman v. Lawson, 17 T., 10; Walace v. Burden, 17 T., 467; Hawkins v. Lee, 22 T., 544; Powell v. De Blanc, 23 T., 66; Keyser v. Pilgrim, 25 T. Supp., 217; McCulloch v. Renn, 28 T., 793; Oliver v. Robertson, 41 T., 422; Blethen v. Bonner, 93 T., 141; Burnham V. McMichael, 6 T. C. A., 496; Clardy v. Wilson, 24 T. C. A., 196. Title to property given to either of them while migrating from one State to another is determined by the laws of the latter. State v. Barrow, 14 T., 179. Property acquired while temporarily sojourning in another State is determined by the laws of their domicile. Edrington v. Mayfield, 5 T., 363. Purchaser of wife’s separate property from husband, or through execution sale against him, with notice of wife’s rights, takes no title against her. Parks v. Willard, 1 T., 350; Bennett v. Cocks, 15 T., 67; Smith v. Boquet, 27 T., 507; Kirk v. H. D. N. Co., 49 T., 213; French v. Strumberg, 52 T., 92; Morrison v. Clark, 55 T., 437; Baker v. Baker, 55 T., 577; Cline v. Upton, 56 T., 319; John v. Battle, 58 T., 591; Legierse v. Moore, 59 T., 470; Parker v. Coop, 60 T., Ill; McKamey v. Thorp, 61 T., 648; Ross v. Kornrumpf, 64 T., 391; Kempner v. Comer, 73 T., 196; Montgomery v. Noyes, 73 T., 203; Evans v. Welborn, 74 T., 530; Parker v. Fogarty, 4 T. C. A., 615; Clardy v. Wilson, 24 T. C. A., 196. If purchaser has no notice of wife's rights, he takes a good title against her. Mitchell v. Marr, 26 T., 329; Cooke v. Bremond, 27 T., 457; Kirk v. H. D. N. Co., 49 T., 213; McKamey v. Thorp, 61 T., 648; Ross v. Kornrumpf, 64 T., 391; Rousel v. Stanger, 73 T., 670; Stiles v. Japhet, 84 T., 91; Kirby v. Moody, 84 T., 201; Coleman v. Bank, 94 T., 605; Russell v. Nall, 2 T. C. A., 60; Sanburn v. Schuler, 3 T. C. A., 629; Sinsheimer v. Kahn, 6 T. C. A., 143; Swink v. League, 6 T. C. A., 309; Watts v. Corner, 8 T. C. A., 588; Coleman v. Bank, 17 T. C. A., 132; Hord v. Owens, 20 T. C. A., 21; Kilgore v. Graves, 2 App. C., sec. 410; Ross v. Dailey, 1 U. C., 251. Must be a purchaser for value. Barnes v. McArthur, 4 T. C. A., 71. Purchaser who is a creditor of husband and credits amount of bid on judgment, is not an innocent bona fide purchaser as to the wife. Deles-pine v. Campbell, 52 T., 4; Wallace v. Campbell, 54 T., 87; Bonner v. Stephens, 60 T., 616; McKamey v. Thorp, 61 T., 648; Stoker v. Bailey, 62 T., 299; Ross v. Kornrumpf, 64 T., 390; Yoe v. Montgomery, 68 T., 338; McCutchen v. Purinton, 84 T., 603; Russell v. Nall, 2 T. C. A., 64; Cleveland v. Mills, 6 T. C. A., 479; Burnham v. McMichael, 6 T. C. A., 496; Cobb v. Trammell, 9 T. C. A., 527; Brown v. Marwitz, 10 T. C. A., 458; Mexia v. Lewis, 12 T. C. A., 102; Aultman v. George, 12 T. C. A., 457; Ryan v. Engelson, 26 T. C. A., 192.
    
   HUTCHINSON, Justice.

—On the 9th of September, 1837, the appellees sued the appellant for restoration of the slaves Priscilla and her child Sylvia, or their value with damages and costs. The answer admitted defendant’s possession, denied title in the plaintiffs, and averred that the defendant purchased from Edwin Waller, praying that he should be cited as warrantor. Waller answered, impleading Fitchett and Gill, his vendors; and they answered that they purchased from John Chafin, and impleaded his administrator, who in his answer denied the allegations in the petition. There was a verdict for the plaintiffs against the defendant, and verdicts over for the respective vendees against their warrantors; but a new trial was granted. An amended petition was then filed, alleging that Chafin, in 1836, forcibly took from plaintiff Elizabeth, then the widow of Whitfield Sledge, the two slaves, which she believed her property, and of which she was peaceably possessed at the seizure. The answer to this is only a general denial, relying on prescription. On the 23d of March, 1840, there was a verdict finding the slaves to be the property of the plaintiffs, and assessing $900 as their value, and $350 the damages for their services; and a judgment for them for those sums with their costs.

The evidence, so far as certified, was that Sledge and wife emigrated from Georgia to Texas prior to August, 1835, in which month he died; that they brought with them the woman Priscilla, whose child Sylvia was born in Texas, though when born does not appear; that Sledge, on January 13, 1834, at Brazoria, made to John S. D. Byron the deed for Priscilla of that date, to secure $69 at three months; and on April 3, 1834, made a deed to Chafin for the same slave, to secure him on the 1st of January following $342, with 12½ per cent interest, the Byron debt, with 5 per cent per month, and $25 borrowed by Pace; and that in the spring of 1836, Chafin, with force, took both slaves out of the possession of the plaintiff Elizabeth and carried them away. The deponent Tennelli, in his deposition, states that he knew the slaves were the property of the female plaintiff; but also mentions that he never heard Sledge or anyone else say the negro was exclusively her property. The deeds were acts under private signature, but were proved in court at the trial; and there was evidence of the value and hire of the slaves. It is not certified by the judge, nor does it otherwise appear, that these were all the facts proved. The court instructed the jury that the wrongful taking of the slaves could not be ground of damages .between the present parties; that if the mortgage to Chafin was valid, or if the property in the negroes belonged to the succession of Sledge, they should find for the defendant; but if they believed from the evidence that the entire property in the slaves, at the taking, was in Sledge’s widow, they should find for the plaintiff.

It is correctly contended that this being an action to recover specific property, it was incumbent on the plaintiffs to show title in themselves, and they could not prevail upon the mere want of title in the defendant. The suit involved the absolute right, dominion or ownership in the negresses, the demand being in that right; and to have justified a recovery, there should have been sufficient evidence of the allegation. Any defect in the averment of title was cured by the answers, denying the right claimed. Our chief embarrassment, however, arises on the inquiry, whether the record shows, all things considered, that the jury had evidence or grounds legally sufficient to authorize their verdict for the plaintiffs. We have only what Tennelli, in his deposition, says in regard to the ownership of the plaintiff Elizabeth. If he knew, as he asserted, that the slaves belonged to her, it was immaterial what her former husband or anyone else had declared or had not declared. The question on the trial might have been raised whether such oral testimony of ownership was competent, or whether there was any higher evidence extant and not produced; but nothing of this sort was agitated. If the witness was interrogated as to the circumstances of the acquisition, as for instance, how, when, of whom, where and by what contract, solemnity or process she had become the owner of Priscilla, the evidence thus elicited should have been certified. The judge in his statement of the proof does not attempt the minutia, but gives only what were, in his estimation, results of the proof; or more indefinitely that such and such facts were in evidence. Two juries have found ownership in the plaintiffs; and the party, considering himself aggrieved should have had such a memorial made of the proof as would have satisfied the revising court that the whole, in substance at least, was embodied. Even then we would have been in a condition to consider only, but not weigh it; yet still we should have been better assured of the conclusions we should derive from it. Taking the exhibition of the proof sent up as containing the whole, we are not satisfied with the assumption by the appellant’s counsel that there was a failure to prove title in the plaintiffs. We are not to presume that anything was proved'but what is certified; but, in favor of turn concurring verdicts, we assume as true that there was no evidence of the laws of Georgia concerning the rights of the.wife in personal property in the possession of the husband or family; that there was no proof of an administration on the estate of Whitfield Sledge, nor any evidence of there being any heirs of the decedent. But it is insisted that this court knows, as a matter of public national history, that the common law in Georgia regulated the relation of Sledge and wife, and gave to the husband the whole personal estate, in the absence of a legitimate express contract giving the wife a separate property. We are presumed to know what doctrines of the common law pertain to the jurisprudence of Texas; but this presumption does not carry our judicial knowledge beyond the limits of the Republic as to any doctrine or rule of municipal law of any kind in use in a foreign State. Were we bound to know the marital rights of a couple at a given date in Georgia, we should be bound to know those of another, at another date, in the Hebrides, in Hindoostan, in China, or in any island of Oceánica. We are to notice officially the jus gentium; but not the internal or municipal laws of other countries. These last must be proved—written laws by authenticated copies, and unwritten ones by the oral testimony of those skilled in them. In Gale v. Davis’ Heirs, 4 Martin, 645, the judge delivering the opinion of the court referred to the laws of North Carolina in regard to the rights of the husband in personalty; and though it is not reported whether or not those laws were proved in that case, yet the doctrine for which it is cited is not ruled. That foreign laws must be proved is an established principle of the common law; and it is equally the rule according to the civil or Spanish law. Boggs v. Reed, 5 Martin, 673; Wakeman v. Marquand, 5 Martin (N. S.), 265.

The laws of the country in which the slave Priscilla was acquired by Sledge, or his wife, if they had been proved on the- trial, would have governed in determining the ownership. Contracts made in a foreign country are to be expounded according to the lex loci contractus, whilst the remedies to enforce them are to pursue the lex fori. The maxim, “actor sequitur forum rei,” is a part of the law of nations. Morris v. Eves, 11 Martin, 730; Lynch v. Postlethwaite, 8 Id., 69. When, however, the law of the place where the parties contracted or their rights originated is not set forth, the court is to proceed upon the domestic code. Campbell v. Henderson, 3 Martin (N. S.), 152. And where there is a conflict, it being doubtful which system of law should be applied, that of the forum prevails. Saul v. His Creditors, 5 Martin (N. S), 569. Here it is proved only that Sledge and wife emigrated from Georgia to Texas, not that they were married there, not that Priscilla was acquired before or after marriage, nor that the acquisition was in a civil or common law country. How then, upon the data and principles before us, does the question of title in the plaintiffs stand? A witness proves ownership of Priscilla and Sylvia to have been in the female plaintiff, with possession, when Chafin’s tortious capture occurred. She was then the widow of W. Sledge, who had died the year previous. Whether he died estate or intestate, or with or without a devisee or heir was not shown—and whether the witness was or was not mistaken as to knowledge of ownership can alone rest on supposition and conjecture. If Sledge died without an heir of any class under the Spanish law; if, too, no one had obtaiped administration of the succession, in the absence of any proof showing that the husband had had the sole right, was not his widow the sole heir and owner and entitled to sue for restoration? “If no relation exist [such as might inherit] and the deceased leave a legitimate wife, she will inherit the whole of his estate; and we say that the husband will inherit from his wife in like circumstances.” 2 Partidas, 1101, 1102.

We may now advert to the defendant’s title. It is derived through intermediate vendors from Chafin, who by a violent seizure and aspor-tation obtained possession. Had he title above that of a trespasser? The deeds produced to show his right, in the view of the Spanish law, ■were instruments of pledge, being of personalty, as contradistinguished from a mortgage which had for its object real estate. By that law the estate pledged, whether real or personal, constituted the chief distinction—the name, prenda, or hipoteca. Either afforded a security for the sum due. In a pledge of the voluntary class, such as that before us, possession of the pledge is not necessary to create the obligation. If the thing pledged had been sold by the pledgor before his delivery of it to the pledgee, the latter was put to his suit against the debtor; and after that he was allowed to sue for the thing pledged. The instrument of pledge might be transferred; but the pledgee might sell the thing, if no day of payment was fixed, on giving the debtor notice. If a day was named, then a judicial order and public auction were required. 1 White’s.Recopilación, 139-143. There is therefore no ground on which to presume possession in Chafin; and if there were, the proof given shows the possession to have been in the female plaintiff, and in her family prior to the seizure.

The deeds of pledges, which under the common law would have been mortgages, were deeds under private signature, and took date, that is to say, acquired efficacy, only from the time of being proved on the trial, as against the plaintiffs, unless it had been shown that W. Sledge,the pledgor, was the sole owner at the giving of the pledges; for in the case excepted, the female plaintiff would have been affected as the wife of the pledgor. But it is not necessary to dwell or rely on this consideration. The deeds, especially that to Chafin, attempted on its face to secure 12½ per cent interest per annum and 5 per cent per month, both illegal and usurious exactions, which rendered the pledge to Chafin w'holly void. His deed was not such as would have been enforced either in the ordinary mode by judicial suit or by the award of executive process. He acquired no right under the deed because of its turpitude. “Contracts made by such persons (usurers) are null. The usurer forfeits or loses that which he lends on usury and he pays as much more. Being a second time guilty of the offense, he forfeits the half of his property; and the third time, he forfeits the whole.” 1 White’s Re-copilación, 255; Herman v. Sprigg, 3 Martin (N. S.), 190. And the pledgee, not having and right or valid lien on the slaves, the subsequent vendees could take nothing under their purchases. There was no attempt to make an ostensible legal transfer under the deed by ordinary or executive process. There can be -no objection to this rejection of the deed for usury. It is produced by' the administrator of Chafin as evidence to sustain a vendee under him; and it bears on its face the taint of its own turpitude.

It is urged lastly, that if the recovery be permitted it will be no bar to a subsequent recovery by the heirs of Whitfield Sledge. To this we answer, that there is no heir disclosed other than the female plaintiff; and if there be any other heir and he shall sue, we are not at present prepared to say that he could prevail, if the recovery in this case should be duly pleaded and shown in bar of the action. It is sufficient, however, to remark that the allowance of such petitio principi might, in any case, defeat the recovery of the apparent owner.

Were we to take a different view of the evidence of ownership in the plaintiffs, we should nevertheless remand the cause; and this we should do in. order to afford to a defendant, deriving title from a source that must remain impure, to protect his purchase, as against one whose peaceable possession was violently determined and who has the verdicts of two juries in favor of her ownership.

There being no evidence that Sylvia was born subsequent to the pledge, it is uncertain whether the right attempted to be derived under it included her; but as the judgment below is to be corrected and conformed to the verdict, it is needless to consider this matter.

The judgment ought to have been for the restitution of the negroes.

This cause coming on to be heard on the transcript of the record, and it being inspected, and the arguments of counsel heard, because it seems to the court that there is no error, except that the judgment below ought to have been for the restitution of the slaves, if to be had, with the damages assessed; and if not to be had, then the value and damages assessed; it is therefore considered by the court here that the said William McDermott and Elizabeth, his wife, recover of the defendant William G. Hill the slaves Priscilla and Sylvia, if to be had, with the damages for detention, assessed to $350, and the costs below; and if said slaves can not be had, then that they recover of him $900, the value of the slaves assessed, together with those damages and costs; and it is further considered that the appellees, McDermott and wife, because of this correction of their judgment, do pay to the appellant, Hill, his costs herein in this court expended. Let this decision be certified below to be executed.

Reformed and affirmed.  