J. G. Trevino, a citizen of the republic of Mexico, on April 3, 1917, sued J. G. Griner, Otto Graf, and Charles Perry, alleging that they were residents of Bexar county, Tex., the amended petition on which trial was had containing allegations to the effect that on or about December 18, 1915, said Griner, as attorney in fact or individually, without authority of law, entered into a contract with defendant Graf for the cutting and taking off, for 20 years, from certain land inherited by plaintiff from his father, situated in the republic of Mexico, of the shrub guayule, and that Graf transferred and assigned said “lease contract” to defendant Perry; that said contract was entered into without the knowledge or consent of plaintiff, and was without any consideration, and made by Griner and Graf and transferred to Perry for the purpose of defrauding plaintiff, and for the purpose of enabling defendants to sell the guayule and reap the benefits therefrom, and embezzle and misapply the same, and for the purpose of placing a cloud on plaintiff’s title to said property, and damaging his credit in the United States; that said “lease” was made as a result of a conspiracy between defendants for the purpose of robbing plaintiff, and was made at San Antonio, Tex., and that part of said contract is performable in the United States of America; that none of the terms or conditions of said contract have been carried out by defendants, and at the time same was made Griner was acting without authority, as the power of attorney under which he purported to act had been canceled, and for the further reason that said power of attorney did not confer authority to “lease” any of said property; that said Griner acted adversely to the interests of plaintiff, and for his own use and benefit, all of which was well known to the defendants, who acquiesced in and agreed to the same; that the purported lease contract, of which a copy was attached to the petition, was filed for record in Maverick county, Tex., and by reason of such filing great injustice and damages had been done by defendants, and that the unsettled conditions in Mexico were such as to prevent plaintiff from securing any relief; that defendants had sold, and were selling, large amounts of guayule taken from plaintiff’s land, the exact amount being unknown to plaintiff, but which he charged was worth $15,000; that in addition he had been damaged in the sum of $10,000 by the execution and recording of said contract. He prayed for judgment canceling and setting aside said contract, and for damages in the sum of $25,000, for costs of suit, and such special and general relief, in law or equity, as he might be entitled to.
The defendants interposed a plea to the jurisdiction of the court in so far as the suit involved an action to cancel the instrument executed by Griner and Graf, the contention being that such instrument on its face was a contract and lease of lands situated in the state of Ooahuila, republic of Mexico. • All of the defendants answered by general denial, and Perry pleaded that the rights of Graf by virtue of said instrument had been assigned to him for a valuable consideration on November 10, 1918, without knowledge or notice on his part of any vice in the transaction between Griner and Graf.
Plaintiff by supplemental petition denied the allegations contained in the answers.
The trial resulted in a judgment canceling the two Instruments described in plaintiff’s petition, and that plaintiff take nothing by his suit for damages. The defendants appealed.
The guayule plant is a perennial shrub, which grows in desert countries, from which a rubber substance is extracted.
The Statutes of the State of Coahuila, Republic of Mexico, contain the following provisions :
“Article 684: Immovable properties are:
“I. Lands, buildings, iron ways and other constructions that cannot be transported.
“II. Plants and trees so long as they ai'e attached to the land; and the fruits hanging on such trees and plants so long as they are not separated from them by crops or regular cuttings.”
Article 1327 (Book 3):
“A real obligation or an obligation affecting l’ealty affects the thing or matter that may be possessed by any one and against any one possessing the same.”
Testimony was introduced in behalf of appellants to the effect that under the laws of said state of Coahuila every lease to a foreigner of real estate for a term exceeding 10 years will be regarded as a sale. However, as appellee introduced testimony to the effect that such provision had been repealed, we take it that the court was authorized to disregard the same in deciding the question of jurisdiction.
' So far as the definition of immovable properties above quoted is concerned we see no difference, as to matters involved an this case, from the doctrine of the common law that trees, turf, or grass, the natural produce of the earth, constitute real estate. The record contains no evidence to show whether under the law of Coahuila leases are personalty, as at common law, or im-movables, as by the Roman law; nor whether there can be made by contract such a severance, in contemplation of law, of trees and other natural products from the soil, as to constitute the sale thereof one of chattels instead of realty, as is the case under our laws. See Lodwick Lumber Co. v. Taylor,
But for the purposes of this case we regard this as immaterial; for, even if our laws were the only ones to be considered, we believe the court was without jurisdiction -to enter a decree canceling the instruments. Mr. Wharton in his work on Conflict of Laws (3d Ed.) § 287, says: “Leaseholds, though personal estate by the English law, are yet regarded by English courts as immovables in. their international relations.” In the case of Waterman v. Charlton,
“The title to its land is the very subject which every sovereignty maintains the exclusive right to control by its own laws. ‘A sovereignty cannot safely permit the title to its land to be determined by a foreign power. Each state has its fundamental policy as to the tenure of land; a policy wrought up in its history, familiar to its population, incorporated with its institutions, suitable to its soil.’ Wharton, Conflict of Laws, p. 686, § 278. This consideration of policy must necessarily govern the descent of the title to land certificates issued under the laws of Texas, since they constitute the foundation of the titles to a very large part of the lands in the state. This does nof conflict with the decisions which hold that the certificates, for many purposes, are to be regarded as chattels. Those decisions apply the law of this, not that of another, state. The mere fact that, for some purposes of our own, we treat such evidences of right as chattels does not justify the application to them of the principle that the title to movables is controlled by the law of the domicile of the owner, when the effect would be to subject titles to land in this state to a foreign law. That principle is generally, but not universally, true. It is not allowed to have the effect just stated. In some jurisdictions mortgages upon, and some leasehold interests in, real estate are regarded by the local law as chattel interests, but that is not allowed to subject them to a foreign law of the owner’s domicile. Wharton, p. 640,'§ 287, and cases dted.”
In section 289a Mr. Wharton says:
“And, first, it may be premised that real property is subject to the exclusive jurisdiction of the courts of the state or country in which it is located. No other courts may properly exercise any jurisdiction over it, and this is as true of courts of equity as of courts of law. Therefore it is beyond the power of a court of one state or country to entertain a suit in rem in respect of land in another, or to render a decree, either in a suit in rem or a suit in per-sonam, which shall, ex pfoprio vigore, affect the title to real property beyond its territorial jurisdiction. When, however, a case, otherwise properly cognizable in equity, is presented, a court of equity, having personal jurisdiction of the parties, may assume jurisdiction of the subject-matter, although land in another state or country may be affected, if it can grant effective relief by a decree acting solely upon the person whose title or interest in the land is to be affected. In other words, the court may, in a proper case for equitable interference, by virtue of its jurisdiction over such person, and its consequent power to enforce obedience to its decree in personam, compel him to do, with respect to land beyond its territorial jurisdiction, what it could not itself, and without his intervention, accomplish.”
The judgment is affirmed in so far as it-relates to damages sued for, and is reversed in so far as it undertakes to cancel the instruments, and the cause remanded for a trial on the issues made by the pleading other than those relating only to damages.
Affirmed in part and reversed and remanded in part.
<§=»For otilar cases see same topic and KEY-NUMBER-in all Key-Numbered Digests and Indexes