the wording of the English Sale of Goods Act is unfortunate. The Act apparently fails to provide for the case which it is intended to cover. Sub-section (2) of the section under consideration1 allows a recovery of the price where it "is payable on a day certain, irrespective of delivery . . . although the property in the goods has not passed." The insertion of the words "irrespective of delivery" gives the sub-section an inadequate effect, and these words seem somewhat inconsistent with the end of the sentence

quoted. In conditional sales the seller who has delivered possession should certainly be allowed to recover the full price, because by the terms of the bargain the price is to be paid irrespective of the transfer of title; but the price is not to be paid irrespective of delivery, and under the English statute it is hard to see how the seller could recover more than the difference between the contract price and the market price for the goods. In this country there seems to be no reason to doubt that the seller, if he has delivered the goods to the buyer, may recover the full price.2 In many jurisdictions the seller is allowed to recover the price, even though the subject matter of the sale has been accidentally destroyed. Such decisions necessarily involve the seller's right to recover the price irrespective of transfer of title. The contrary decisions contain, however, no implication that if the property had not been destroyed the seller could not recover the instalments of the price payable before the time for transferring title.

Of course it is entirely possible to make the price payable irrespective of delivery as well as of transfer of title, but such a contract must be unusual.

1 § 49.

2 Smith v. Aldrich, 180 Mass. 367; Whitney v. Abbott, 191 Mass. 59. As Massachusetts does not permit the seller, generally, to recover the full price until title has passed, the decision has peculiar force. See also Tufts v. Poness, 32 Ont. 51.

Chicago Equipment Co. v. Merchants' Bank, 136 U. S. 268, 283; Burnley v. Tufts, 66 Miss. 48; Tufts v. Wynne, 45 Mo. App. 42; American Soda Fountain Co. v. Vaughn, 69 N. J. L. 582; Tufts v. Griffin, 107 N. C. 47; Topp v. White, 12 Heisk. (Tenn.) 165; Lavalley v. Ravenna, 62 Atl. Rep. 47 (Vt.); Goldie v. Harper, 31 Ont. 284. See also Cooper v. Chicago Organ Co., 58 Ill. App. 248; Osborn v. South Shore Co., 91 Wis. 526; Hesselbacher v. Ballantyne, 28 Ont. 182. There are, however, a number of contrary decisions. Arthur v. Blackman, 63 Fed. Rep. 536; American Soda Fountain Co. v. Blue, 40 So. Rep. 218 (Ala.); Bishop v. Minderhout, 128 Ala. 162; Randle v. Stone, 77 Ga. 501; Glisson v. Heggie, 105 Ga. 30, 32; Mountain City Co. v. Butler, 109 Ga. 469; Swallow v. Emery, 111 Mass. 355; Sloan v. McCarty, 134 Mass. 245; Cobb v. Tufts, 2 Willson Civ. Cas. (Tex.) § 154

See Gray v. Booth, 64 N. Y. App. Div. 231.

For the reasons here given, in the proposed Sales Act of the Conference of Commissioners for Uniform State Laws the English statutory provision is thus changed:

"§ 63.-[ACTION FOR THE PRICE.] (1) Where, under a contract to sell or a sale, the property in the goods has passed to the buyer, and the buyer wrongfully neglects or refuses to pay for the goods according to the terms of the contract or the sale, the seller may maintain an action against him for the price of the goods.

“(2) Where, under a contract to sell or a sale, the price is payable on a day certain, irrespective of delivery or of transfer of title, and the buyer wrongfully neglects or refuses to pay such price, the seller may maintain an action for the price, although the property in the goods has not passed, and the goods have not been appropriated to the contract. But it shall be a defense to such an action that the seller at any time before judgment in such action has manifested an inability to perform the contract or the sale on his part or an intention not to perform it.

1

"(3) Although the property in the goods has not passed, if they cannot readily be resold for a reasonable price, and if the provisions of § 64 (4) 1 are not applicable, the seller may offer to deliver the goods to the buyer, and, if the buyer refuses to receive them, may notify the buyer that the goods are thereafter held by the seller as bailee for the buyer. Thereafter the seller may treat the goods as the buyer's, and may maintain an action for the price."

Samuel Williston.

1 "§ 64. (4) If, while labor or expense of material amount is necessary on the part of the seller to enable him to fulfill his obligations under the contract to sell or the sale, the buyer repudiates the contract or the sale, or notifies the seller to proceed no further therewith, the buyer shall be liable to the seller for no greater damages than the seller would have suffered if he did nothing towards carrying out the contract or the sale after receiving notice of the buyer's repudiation or countermand. The profit the seller would have made if the contract or the sale had been fully performed shall be considered in estimating such damages."

EQUITABLE INTERESTS IN FOREIGN

THE

PROPERTY.

Dedicated to Professor Langdell.

No more

HE law of the situs governs the title to land. generally accepted doctrine, or one more clearly based upon principle and reason, exists in the whole body of the law. And this is as true of equitable as of legal title. Indeed, the distinction between legal and equitable rights is merely a distinction of municipal law, though it is fundamental and widespread. Looked at from within, the equitable interest is sharply contrasted with the legal; but viewed from without, the legal owner and the beneficiary are both alike persons who have claims, large or small, upon the land. Whether they work out their right through the sheriff or the chancellor is, after all, a question of procedure. Though the Massachusetts judge is quite familiar with a division of equitable and legal rights in Massachusetts land, if his attention is called to land in New York he is concerned only with the question what is the nature of a certain person's interest in it as a matter of fact; not by what process or as a result of what legal or equitable principle of New York law has the interest been created.

The law, then, treating equitable interests in land in this respect like legal interests, holds that such interests are governed by the law of the situs. Thus the question whether a trust in land exists in favor of a certain claimant will in every court be determined as in the court of the situs. If by the law of the situs the transaction in question created a valid trust, the trust will be recognized in the courts of the situs; and it will be recognized equally in the court of another country, though the law of the forum would not create a trust under the circumstances, and even though by the law of the forum the creation of equitable interests is forbidden.3 On the other hand, if by the law of the situs the

1 Kerr v. White, 52 Ga. 362.

2 In re Fitzgerald, [1904] 1 Ch. 573 (C. A.); Godfray v. Godfray, 12 Jur. N. S. 397 (Privy Council); Knox v. Jones, 47 N. Y. 389. In Seaman v. Cook, 14 Ill. 501, the law of the situs was applied, but was found to be the same as that of the forum.

3 Siebberas v. De Geronimo, Journal du Palais, 1895, iv. 28 (Court of Cassation, Palermo, 1899), translated in 2 Beale, Cas. on Conf. of Laws, 204. In that case it

transaction did not create a valid trust, a trust will not be held to exist either in the courts of the situs1 or even in another state where the law would have created a valid trust as a result of the transaction.2

The same doctrine applies, of course, to a determination of the rights in real estate (necessarily equitable in countries governed by the common law) created by a foreign contract of marriage or marriage settlement. Such rights must be created in accordance with the law of the situs. In the same way the question

appeared that a trust had been created in land in Malta in favor of an Italian. The Italian code had abolished all trusts. It was urged that this provision applied to all Italian citizens, and made such a trust void, at least so far as the Italian courts were concerned; and this contention prevailed in the lower courts. The Court of Cassation, however, held otherwise. "The Italian law has dissolved trusts, entails, and other settlements in perpetuity established according to previous law; but only those which existed within the kingdom, and not those which, established in another territory, are subject to another autonomous and independent sovereign. It is even more false to suppose, as the court appears to have done, and as the defendants in error continually do, that the trusts in this case should be considered subjectively null by reason of the provisions of our law, and as objectively valid because at Malta, where the property is situated, they are authorized. A right cannot be at once valid and null; and if an Italian court attributed to Italians the absolute title in property, and yet held the property subject to a trust in the country where it is situated, what could be the effect of such a decision? It could not be executed in the country of situs, and would consequently be a mere academic opinion, deprived of juridical and practical value."

1 Perin v. McMicken, 15 La. Ann. 154; Penfield v. Tower, 1 N. D. 216, 46 N. W. Rep. 413; Parkhurst v. Roy, 7 Ont. App. 614.

2 In re Piercy, [1895] 1 Ch. 83; Nelson v. Bridport, 8 Beav. 547, 10 Jur. 1043; Acker v. Priest, 92 Ia. 610, 61 N. W. Rep. 235; Levy v. Levy, 33 N. Y. 97; Purdom v. Pavey, 26 Can. 412. In Hawley v. James, 7 Paige (N. Y.) 213, the trust was clearly invalid by the law of the forum, but the court, holding that the validity of the trust must be determined by the law of the situs, investigated that law, and found the trust invalid by that law also.

3 This is the doctrine universally held in this country. Besse v. Pellochoux, 73 Ill. 285, 24 Am. Rep. 242; Heine v. Mechanics' & Traders' Ins. Co., 45 La. Ann. 770, 13 So. Rep. 1; Depas v. Mayo, 11 Mo. 314, 49 Am. Dec. 88; Richardson v. De Giverville, 107 Mo. 422, 17 S. W. Rep. 974.

This is also the doctrine of the continental courts. Anonymous, I Seuffert's Archiv 57 (Court of Wiesbaden, 1841), translated in 2 Beale, Cas. on Conf. of Laws, 250; Samuel v. Arrouard, 21 Clunet 544 (Civil Tribunal of Versailles, 1893), translated ibid., 251.

In England an indefensible case perhaps takes the opposite view; De Nicols v. Curlier, [1900] 2 Ch. 410. Spouses married in France under the community system emigrated to England, where the husband acquired land. After his death his wife was held entitled to a community interest in the land. The result was reached by treating the marriage as involving a contract that the land should be held in community, and then, neglecting the Statute of Frauds, enforcing this supposed contract. The passages cited from Story's Conflict of Laws were opposed to this conclusion. The better view

whether a certain transaction constitutes a charge upon the separate estate of a married woman must be determined by the law of the situs.1

But though the creation of equitable interests in land is a matter for the law of the situs alone, it does not follow that the courts of equity of another country may not in a sense exercise power over the foreign land, and deal with it as if equitable rights in it existed. It is clear that in certain cases a court of equity will decree a conveyance of foreign land in specific performance of a contract to convey, or require mutual deeds to rectify the boundaries of foreign land, or decree a reconveyance for fraud. Such action of a court of equity is usually taken on the ground that the contract or the fraud creates a constructive trust, which equity is enforcing; and where the law of the situs creates such a constructive trust there is no obstacle to prevent a court of equity in another state, having jurisdiction of the parties, from enforcing the trust. But the power to enforce a conveyance of foreign land is not confined to cases where a constructive trust exists by the law of the situs; the foreign court may decree a conveyance as a remedy for a tort or breach of contract of the defendant, although no right to a conveyance is recognized in the courts of the situs.

The leading case of this sort is Lord Cranstown v. Johnston.5

is that taken by the American courts, that such a "contract" does not apply to land situated abroad. Fuss v. Fuss, 24 Wis. 256, 1 Am. Rep. 180, and cases cited.

1 Read v. Brewer, 16 So. Rep. 350 (Miss., 1895); Wick v. Dawson, 42 W. Va. 43, 24 S. E. Rep. 587. Therefore, where a married woman made an agreement in Louisiana, invalid by the law of Louisiana, the invalid agreement would nevertheless charge her separate estate in Mississippi land if such was the law of Mississippi. Frierson v. Williams, 57 Miss. 451.

2 Toller v. Carteret, 2 Vern. 494.

3 Penn v. Lord Baltimore, 1 Ves. 444.

↑ Arglasse v. Muschamp, 1 Vern. 75; Massie v. Watts, 6 Cranch (U. S.) 148.

5 3 Ves. 170. In Purdom v. Pavey, 26 Can. 412, the Canadian court refused to apply the Canadian law of fraudulent conveyances and decree to a creditor of a Canadian insolvent a conveyance of land in Oregon conveyed in Canada by the insolvent to the defendant. Strong, C. J., said: "Whether the allegation of a 'trust' of the purchase-money secured by the mortgage, which the plaintiffs allege, is to be considered as an averment of a trust arising by operation of law consequent upon the illegality of the transaction or as an allegation of a conventional express trust, in either case the question would depend on the lex rei sitae, and from this alone it follows that the forum of the situs is the proper forum." If a so-called conveyance in fraud of creditors were a tort, this would seem to be opposed to the doctrine of Lord Cranstown v. Johnston. But in fact the act simply affects the title to land, and does not create a personal obligation, for breach of which suit can be brought. It has been suggested in one or two later cases that the doctrine of Lord Cranstown v. Johnston must be confined to land