2 Colo. App. 177 | Colo. Ct. App. | 1892
delivered the opinion of the court.
The matters in issue between these parties narrow the inquiry to a single question. An epitome of the facts will make the elements of the investigation exceedingly plain. In May, 1888, the firm of Beers & Lee, composed of H. M. Beers and Albert Lee, were residents of the state of Kansas. At that date they sold to Berwick & Beers, who were domiciled in the same state, a lot of personal property on condition that the title should not vest in the vendees, except upon payment of certain promissory notes which were executed for the purchase price and delivered to the vendors at the time of the sale. The notes contained the condition. The property was then in the possession of the vendors at the place of the contract and was immediately turned over to the vendees, who brought it into this state. There is no averment in the complaint concerning the consent of Beers & Lee to the removal. It appears, however, that prior to the maturity of the paper, one of the firm came to Colorado in pursuit of the property, took it into his possession, and started back to Kansas with it. This he had a right to do by the terms of the agreement. While on the journey he was intercepted by the sheriff of Elbert county, who seized the stuff under a writ of attachment issued in a suit brought by some creditors of Berwick & Beers to recover a claim against them. There is no question made concerning the regularity of those proceedings. The present suit was brought against the sheriff to recover for the taking and conversion. The sheriff justified by a plea of the judicial proceedings in which the writ issued. A demurrer to the answer was sustained, and the case was brought to the supreme court by appeal, and subsequently under the statute
There is considerable apparent diversity of opinion among learned courts on this inquiry. The differences, however, are inore apparent than real. In general it may be said, that wherever there is any apparent contradiction in the adjudications it comes from a difference with respect to some one of the different elements in the propositions of fact, which are generally deemed ample when they all exist, to permit the enforcement of the contract. It is always essential to ascertain the domicile of the parties, the lex loci contractus, and the situs of the property. Wherever these unite to sustain the validity of .the contract, it may be safely asserted that it is enforcible in the courts of every state where a controversy arises over the title to the property.
It would not be profitable to discuss the reason of the rule, nor to- determine whether it ought to be put on the recognized comity existing between the different sovereign-ties, or on the well settled principle of the lex loci contractus, which permits the enforcement of a contract according to the established law of the place, so long as it does not contravene the recognized policy of the state of the forum. Both principles are frequently invoked. According to the Mumford case, the contract will not be deemed to be opposed to the policy of the state unless based upon immoral or criminal considerations. In either case and upon either ground the contract may be upheld.
The judgment of the trial court was assailed because the judge based his decision upon the fact that the vendors were in possession of the property at the time it was seized under the writ. It is contended that this is an erroneous basis upon which to rest the judgment, and that it contravenes the well considered case of Wilson v. Voight, 9 Colo. 614. It was there decided that a mortgage on property situate in the state, executed between parties who lived here, could not be made a
The case presents no other questions, and since the judgment of the court below is in harmony with the law herein laid down, it must be affirmed.
Affirmed.