American Laws, that the registry of the deed is held to be constructive notice of it to subsequent purchasers and mortgagees. (a) But a deed unduly registered, either from want of a valid acknowledgment or otherwise, is not notice. (b) Under the recent act of Prince Edward's Island, it has been seen that no constructive or other notice of any unregistered deed can in any manner defeat or affect any deed which has been duly registered. (c) The act applies only to deeds executed in the island. within three months, and to other deeds within twelve months after the passing of the act. In Maryland, the non-registration within the prescribed time would entirely defeat the deed, but the registry act of that state enables the Court of Chancery, on a bill being filed, to authorize the recording it, even at a subsequent period, but it will be postponed to all intervening incumbrances. It is said that according to the law of this state, notice of the title under a prior unrecorded deed, has no legal effect whatever. (d) Frost v. Beckman, 1 Johns. Shaw v. (a) Johnson v. Stagg, 2 Johns. Rep. 510. Ch. Rep. 298. 18 Johns. Rep. 544, S. C. Peters v. Goodrich, 3 Conn. Rep. 146. Hughes v. Edwards, 9 Wheat. Rep. 489. Thayer v. Cramer, 1 M'Cord's Ch. Rep. 395. Evans v. Jones, 1 Yeates's Rep. 174. Poor, 6 Pick. 86. Lassell v. Barnett, 1 Blackford's Ind. Rep. 150. (b) Heister v. Fortner, 2 Binney's Rep. 40. Hodgson v. Butts, 3 Cranch, 300. Morrison v. Trudeau, 140. Frost v. Beekman, 1 Johns. Ch. Rep. 1 Martin's Louis. Rep. N. S. 384. 4 Kent's Comm. 174, 175. (c) 3 Wm. 4, c. 10, § 10. (d) Griffith's Reg. CHAPTER IX. OF THE LAW WHICH GOVERNS IN THE MODIFICATION, TRANSFER, &c. OF IMMOVEABLE PROPERTY. In the modification and creation of estates or interests in immoveable property, if the law of the domicile is opposed to that of the place in which the act of substitution or entail is passed, or to that of the situs, the law of the situs must prevail.—In the transfer of property, distinction between the contract to transfer, and the actual transfer.-The rule to be adopted, when the person is capable by the law of his domicile to contract, but incompetent by the lex loci rei sita to transfer.-The property which may be alienated, and the persons to whom, and the purposes for which the alienation may be made, are exclusively determined by the law of the situs.—In what cases the place of the domicile, or that of the locus contractus, may be invoked in questions regarding the transport of immoveable property.-Of things which are of the essence, of the nature of, or accidental to the contract.-The construction of its terms when the legal effect, or the meaning, in loco contractus, is not the same as in loco rei sita.-That which constitutes traditio, or the valid transport, decided by the lex loci rei sita.-The law which determines on the validity of the instruments, or actes of transfer.-When writing is required to the validity of the contract, or as the mode of proof.-On the necessity of registration, and the consequences of non-registration.-Partitions, judicial sales, exchanges, and donations subject to the same rules as transfers on sale. THE summary given in the preceding chapters exhibits a great diversity amongst the laws which regulate the modification and creation of estates and interests in real property, and the transfer and acquisition of it. The law of the place where the act making the modification or alienation is passed, frequently differs either from that of the place in which the party to the act was domiciled, or from that of the place in which the property is situated. It becomes necessary to inquire which of these con flicting laws is selected, and what are the principles on which the selection is made. There exists a difference of opinion amongst jurists as to the law which ought to govern the decisions of some of the subjects comprehended under the titles which have been just mentioned, when one of the conflicting laws affects persons as well as things, or where it applies to the form and solemnity of the acte, by which the modification or alienation of property is passed, as well as to things. The primary or principal object of the law, or the comparative degree in which, in the one case, it affects persons or things, and in the other, the form of the act or thing, affords the ground on which some jurists consider the law as real or personal, and accordingly adopt the lex loci rei sitæ, or the law of the domicile, or that of the place in which the act is passed. In the opinion of other jurists, if the law of the situs be prohibitive, it must be preferred to the personal law of the domicile, without regard to the object of that law, or its immediate effect on the status of the person. . There is, however, no difference of opinion amongst them in adopting the lex loci rei site in all questions regarding the modification or creation of estates or interests in immoveable property. This subject does not involve any of the considerations which, in other cases, produced that difference of opinion. The law primarily and principally affects things. It is wholly independent of the status of persons, and is strictly a real law. There is the concurrence therefore, not only of those jurists who give the greatest effect to the lex loci rei sita; (a) but even of those who are disposed to give such an effect to laws affecting the general status of persons as would greatly control the operation of the lex loci rei sitæ. (a) Molinæus ad Cod. lib. 1, tit. 1, Bouhier, Chassaneus, P. Voet, J. Voet, Pothier. Thus, according to the definition of Rodenburg It is comprised in the rule laid down by Burgundus: The doctrine of D'Argentre is to the same effect: "Item de modo rerum donandarum, et quota dona- The doctrine of Du Moulin is, "in his quæ con- Boullenois also concurs in treating those laws as real : Merlin maintains the same doctrine: "Si l'objet (a) De Jure quod oritur, tit. 1, c. 2. (d) Du Moulin, Tit. de Fiefs. § 12, gl. 7, n. 37. (b) Burg. Tr. 1, n. 4. personnes, ne sont plus que des conséquences éloignées de la réalité." (a) The estate or interest which the law permits or prohibits to be created in immoveable property, whether it be by substitution, entail, executory devise, condition, or any other species of limitation, may be considered as a quality impressed on, and inherent in the property. So also are the rules and limits under which the permission is given. According to the doctrine of those jurists, who are the most disposed to allow personal laws affecting the general status to control those of the situs, the law which confers on immoveable property its qualities is strictly real, and prevails over the personal law. Thus Hertius defines the law to be real when it impresses any certain quality on immoveable property : "Rebus fertur lex, cum certam iisdem qualitatem imprimit, vel in alienando, e. g. ut ne bona avita possint alienari, vel in acquirendo, e. g. ut dominium rei immobilis venditæ non aliter acquiratur, nisi facta fuerit judicialis resignatio." (b) The same rule is laid down by Mestertius (c) and Burgundus, (d) and is followed by Boullenois. (e) These jurists, in treating of the solemnities which the law requires should accompany certain acts, distinguish those which are 66 tanquam qualitates rebus impressæ." The existence and nature of those qualities must be determined by the law of the situs. It is conceived, therefore, to be indisputable, that the law of the situs must be adopted in all questions respecting the power of alienating immoveable property, or the restrictions under which that power may be exercised. Hence, also, it follows that the law of the (a) Merlin, Rep. Verb. Autoris. Marital, § 10. (b) Hertius, de Coll. leg. § 6. (c) Cited in Boullenois, Traité des Statuts, tit. 2, c. 3, observ. 23. (d) Tr. 4, n. 27, and Tr. 6, n. 22. (e) Boullenois, ib. |