150 Pa. 164 | Pa. | 1892
Opinion by
The defendants are and were at the date of the bond on which this judgment was entered husband and wife. In the winter of 1884-5 they lived in this state near Philadelphia. Desiring to remove to Delaware they visited Dover and its vicinity in February in 1885 in search of a suitable farm on which to make their home. Among the farms examined by them was that of Baum the plaintiff, from whom they got the price and terms of payment at which he would sell. They then returned to their home near Philadelphia; but H. C. Birchall, the husband, soon after returned to Dover and in the name, and by the direction, of his wife made a contract with Baum for his farm and paid one hundred dollars hand-money upon it. It was to be closed as soon as the title papers could be conveniently prepared, pending which Birchall came back to his home in this state. Soon after, a bond and mortgage to secure so much of the purchase money due Baum as was not to be paid on delivery of the deed, were sent by mail to the
If it be conceded that the bond and mortgage were executed in this state, yet it appears upon their face that they were to be performed in the state of Delaware, and the general rule is that in such cases the instrument is governed as to its validity, nature, obligation and interpretation, by the laws of the place where it is to be performed: Story on the Conflict of Laws, § 280; 2 Kent’s Com., 459. Interest, which is the ordinary measure of compensation for delay in performance, is to be computed according to the law of the place of payment: Brown v. Camden and Atlantic Railroad Co., 83 Pa. 316. The remedy and the effect to be given to any existing disability in the maker of the instrument are also to be determined by the law of the place of payment: Hill v. Chase, 143 Mass. 129. The same rule applies where the contract is made by correspondence through the mails or by telegraph. Thus it was held that if one orders goods from another state by mail, which are sent by a carrier, the contract is made where the order is received
So far we have considered the instrument as a contract without regard to the character of the subject-matter; but, upon looking into the transaction of which it is a part, we learn that it is a contract relating to real property. Now, the rule relating to such contracts has been well settled from the earliest days of the English common law. Beal property cannot attend the person of the owner as he goes from one jurisdiction to another. It is fixed, immovable and necessarily under the law of the place where it lies. Contracts relating to it must therefore neoessarily be governed by the lex rei sites: Story on the Conflict of Laws, 424. It seems that the law of the state where Baum’s farm was located makes a married woman personally liable on her bond given for property bought by her. Mrs. Birchall went there to look at and treat for this farm. She contracted for it through her husband in that state. She received her deed and delivered her money, her bond and mortgage, in complete execution of her contract there where the land was. The law of that state determines the effect of the conveyance received by her, and of the bond and mortgage' given by her to secure the purchase price of the land she bought. We have therefore a contract made and, in legal effect, delivered in Delaware; for the purchase of real property in that state; upon which according to the laws of that state the defendant is personalty liable notwithstanding her coverture. In passing upon it here, our courts will secure to her the advan
The order is reversed and set aside accordingly.