PROPERTY. CAP. VI. PART II. the local law of limitation merely enacts that, after a certain lapse of time, no action to assert title shall be brought. A law which prohibits the assertion of title does, however, practically take it away, and vest it in some one else. No person can be said to have a valid title to land by the lex rei sita which that law does not permit him to assert in its own courts. When a law takes away a remedy altogether, it virtually destroys the right to which such remedy is attached. To abolish a remedy is not to regulate it; and the right to regulate the remedy is all that the lex fori can reasonably claim. There may conceivably be cases where a law of limitation is so framed as to apply, and to be intended to apply, to procedure alone; but in the majority of instances this will not be so; and subject to this exception, it is submitted that the provisions of the lex rei sita as to the period of limitation applicable to immovables should be universally followed. Liability of foreign land to debts of owner. With regard to the liability of foreign immovables to the debts of the owner, the lex situs, apart from any consideration of an equity affecting him, is alone entitled to be heard. In Harrison v. Harrison, (a) on appeal from the Master of the Rolls, where a Scotch heir had elected to take Scotch lands by descent in opposition to an English will, the domicil of the testator being English, and the will itself being ineffectual to pass real estate in Scotland, it was decided that the liability of the Scotch real estate to the payment of debts, as between the heir and the pecuniary legatees, must be determined by the law of Scotland, and not by the law of the country where the estate was being administered. In that case Lord Selborne said, "The doctrine of marshalling, as applied in favour of legatees against heirs-at-law taking descended real estates in England, is part of the lex loci of England affecting those real estates, and no question of conflict of law can arise under those circumstances. It is a wholly different thing when persons, who have an interest in the personal estate only, endeavour indirectly to establish in their own favour, or for their own relief, a burthen upon real estate situate in another country, which, by the law of that country, would not be administered so as to give them what they ask. . . . It is admitted, as I understand, that the burthen of liability to debt, so far as relates to real estate, can only be created by the lex loci rei sitæ ; but it is suggested that the burthen may be laid on real estate, on which it is not imposed by the lex loci rei sita, by an (a) Harrison v. Harrison, L. R. 8 Ch. 342; Drummond v. Drummond, 6 Bro. P. C. 601; Elliott v. Minto, 6 Madd. 16; Carron Iron Co. v. Maclaren, 5 H. L. C. 416. What is that What right have PART II. PROPERTY. CAP. VI. able bonds. indirect equity in favour of the legatees. equity? There is no fiduciary relation. these legatees, upon the footing of personal equity, to say that the heir shall not enjoy the Scotch real estate as the law of Scotland gives it to him, or that any burthen shall directly or indirectly be thrown upon that real estate in their favour, which would not be imposed by the law of Scotland?" (a) Similarly it was decided in an old case that the question of a creditor's lien on real estate was to be determined by the lex situs.(b) It may be added that a heritable Scotch bond in the Scotch herit possession of an English testator is real estate, and descends to his heir-at-law, (c) being regarded as an integral part of the Scotch land which is bound by it to satisfy the debt. Nor does the fact that a personal obligation is inserted in such bonds alter their nature, the personal security being regarded as a mere adjunct to the heritable security.(d) The case is different where the heritable bond is not an asset in the possession of the testator or intestate, but a bond given by him to some one else, and remaining after his death as a debt due from his estate, as well as a charge upon the Scotch land on which it was given. Thus, in Maxwell v. Maxwell,(e) where an English testator charged his personal residuary estate with payment of all his just debts," and after the date of his will borrowed £14,000 on Scotch lands, for which he gave a heritable bond, it was held that the expression "all my just debts" in the will, interpreted by the lex domicilii of the testator, included the charge on the Scotch land, and that the residuary personal estate was liable to payment of the £14,000 in exoneration of the Scotch realty. The Scotch heir, who took by intestacy (the will not affecting Scotch lands), was therefore not put to his election. It will be seen that this case, though from one point of view the converse of Jerningham v. Herbert,(f) depends in substance upon totally different principles. That case shows that a heritable bond in the possession of the testator, a charge on somebody else's Scotch land, is in reality regarded as a portion of that land, and is not included in a bequest of the testator's personal estate like other choses in action, although the debt which it secures is also due on a personal bond. Maxwell v. Maxwell, on the contrary, (a) L. R. 8 Ch. 348. (b) Scott v. Nesbitt, 14 Ves. 438. (c) Johnston v. Baker, 4 Madd. 474, n.; Buccleuch v. Hoare, 4 Madd. 467; Allen v. Anderson, 5 Hare 163. (d) Jerningham v. Herbert, 4 Russ. 388. (e) L. R. 4 H. L. 501; S. C. sub roc. Maxwell v. Hyslop, L. R. 4 Eq. 407. (f) 4 Russ. 388. PROPERTY. CAP. VI. PART II decided that where the testator had given such a heritable bond, charging his Scotch land, the debt secured by it was within the meaning of the phrase "all my just debts," as used in his will. The first case was decided on the ground that the lex situs must decide what is realty and what is not, and what is sufficient to pass it; the second on the ground that the lex domicilii must be called in to interpret a testator's intention. Scotch heritable bondeffect of collateral security. Cust v. It has just been said that the fact of a personal obligation being inserted in a Scotch heritable bond does not alter its nature, but that it descends notwithstanding to the heir-at-law. But if the personal obligation be contained in a separate instrument, so that the debt due to the testator was secured both by a Scotch heritable bond charging it on his debtor's land, and a personal security given by the debtor, the personal security may be disposed of by a will in the form of the domicil, and the heir will thus lose the benefit of the Scotch heritable bond, as the debt secured by it may be paid to the executor or legatee under the will. This has been held not only where the personal bonds were specifically devised by the will,(@) but also where the testator had devised generally to his executors "all his moneys, securities for money, chattels, and other personal estate." (b) The principles on which these decisions should be distinguished from those cases in which it has been held that a Scotch heritable bond is realty to which the Scotch heir is entitled, may perhaps be best stated in this way. Where a heritable bond alone is taken by the testator on lending his money, he is regarded as having in effect laid out that money in the purchase of Scotch land. But where he takes a personal bond as well, the debt due to him is regarded as still a chose in action, which still, therefore, forms part of his personal estate. The judgment in Cust v. Goring, delivered by Lord Romilly, forms a convenient summary of the previous cases on the subject, and may be quoted with advantage: "This is a case in which the determination of which system of law is to prevail depends less upon principle than upon authority. In order, therefore, to determine whether the Scotch or English law. shall prevail in this case, it is necessary to consider the authorities affecting cases of this description, which I will do in their order. The first I think necessary to mention is Brodie v. Barry, 2 Ves. & B. 36. It is very distinguishable from this case. There the testator had by his will purported (a) Buccleuch v. Hoare, 4 Madd. 467. (b) Cust v. Goring, 18 Beav. 383. to dispose of his Scotch real estate, but the will not being in conformity with the solemnities required by the Scotch law, was inoperative for this purpose. The question then was whether this raised a question of election against the Scotch heir, who was a legatee under the will. Sir W. Grant held that this was analogous to the case of a will purporting to dispose of copyholds not surrendered to the use of the will, and that therefore, as the will, in the case of copyholds, could be read against the customary heir, so also, in that case, the will could be read against the heir of the Scotch estates: the effect of which was, that he was put to his election. No contest arose between English and Scotch securities for the same debt. There was in that case no question but that the will did not affect the debt, or any instrument affecting to secure it. The next case is that of Johnstone v. Baker, 4 Madd. 474, n. That also was a case where the heritable bond was the only security given, which bond did not pass by the will of the testator, and which is, therefore, distinguishable from the present case. "The Duchess of Buccleuch v. Hoare (4 Madd. 467), before Sir John Leach, did raise a question between English and Scotch instruments given to secure the same debt. In that case the testator had advanced sums of money to the Duke of Buccleuch and the Duke of Montague, on two several occasions, which sums were secured by two Scotch heritable bonds and by two ordinary English money bonds. The testator, by his will, reciting that he was possessed of two bonds or obligations of the Dukes of Buccleuch and Montague, bequeathed them to his executors, upon certain trusts specified in the will. The Court held that the will passed the debt, and that the heir was a trustee for the legatee. "In Jerningham v. Herbert (4 Russ. 388), before Sir John Leach, no contest arose between English and Scotch securities. That was the case of a Scotch heritable bond given to secure a debt, which, although it also contained a personal obligation to pay the debt, as a part of the same instrument, was held not to pass by a will which affected English property only. It does not therefore, as it appears to me, govern this question. “Allen v. Anderson (5 Hare, 163), before Sir James Wigram, was the case of a testator who at the time of making his will was a creditor for a large sum of money, apparently not secured by any instrument whatever. Subsequently to the PART II. PROPERTY. CAP. VI. PART II. PROPERTY. date of his will, a Scotch heritable bond was given to secure his debt, which bond was not affected by the will. The Court CAP. VI. held, that the heir was not a trustee for the legatees under the will, and that he was not put to his election. That case also is very distinguishable from the present. It seems to me to have been analogous to the simple case of a testator laying out money in the purchase of land subsequently to the date of his will. The testator took a heritable bond as a security for the debt, which heritable bond did not pass by the will. If he had taken real estates in England, in exchange for the debt, it would not have passed by the will, and would in that case have been in all respects analogous to the case which actually occurred; and in the case last supposed it is obvious that, according to the principle of English law, the heir could not have been put to his election. "In Drummond v. Drummond (Roberts, on Personal Security, p. 209), before the House of Lords, and commented upon by Sir W. Grant in Brodie v. Barry, there was no contest between securities. The contest was, whether the English personal estates or the Scotch real estates, should be applied to discharge a heritable bond granted by the testator on his Scotch estates; and it was there held, that the Scotch law was to govern the question, inasmuch as the rights of a person to real property must depend upon the law of the country where it was situated; and consequently, that the person who took the Scotch real estate must take it with the burthen upon it, that estate being by the Scotch law the primary fund for the payment of the bond. . . . The only distinction between Buccleuch v. Hoare and the present case rests on this, that there the testator had by his will specifically bequeathed the English securities for the debt. In this case the testator has not specified the securities, but he has disposed of his personal property in general terms. The description, however, of the property bequeathed, contains the words 'securities for money,' which obviously includes the bond in question. But I think that this specific mention is not essential to the case. English bond was the primary security for the debt; it was never cancelled; and it was not merged in or extinguished by the Scotch bond, which was given as an additional security." (a) The The proceeds of foreign lands, validly sold under a testamentary power of sale good by the lex situs, do not retain the (a) Cust v. Goring, 18 Beav. 383. |