Swink's Adm'r v. Dechard , 41 Ala. 258 ( 1867 )

JUDGE, J.

The construction, interpretation, and validity of a contract, are governed by the law of the place where it was made. If the foreign law does not affect the contract itself, but relates only to the remedy for its enforcement, it can not be regarded, the remedy for a breach of the contract being governed by the law of the forum in which it is sought to be enforced.—Shepherd’s Digest, 476, §§ 13, 14 ; 2 Kent, 455-63.

In the case before us, the defendant below, in his third plea in bar of the plaintiff’s action, avers, that the bond sued on was executed in the county of Franklin, and State of Tennessee ; and that the tract or parcel of land, which is the subject-matter of the bond, is situate in the said county and State ; and there is set out in the plea a statute of the State of Tennessee, which, it is averred, was, at the date of the bond, and at the time the plea was filed, “ in full force and unrepealed.” The statute, as set forth, is as follows : “ It shall be lawful for the executors or administratorsjjof any person or persons¡deceased, to make titles to any tract or parcel of land in this State, which the person or persons were bound to make by his or her obligation, in as full and as ample a manner, as the decedent or decedents could have done, in his, her, or'their life-time ; but the executor or administrator, as the case may be, shall not be bound to make such title or titles, or deed, until the bond or obligation of the decedent shall have been recorded in the county where the land lies, and a copy of the same produced to him or her, duly authenticated ; nor shall holders of such obligations charge the personal estate of such decedent or decedents, until they shall have produced the obligation, duly authenticated, and demand made, and a. refusal or failure to comply therewith on the part of such representative or representatives.” It is further averred in the plea, that the plaintiff below never had said bond recorded in the county of Franklin, and State of Tennessee;, and a copy thereof, duly authenticated, presented to the defendant as administrator, or to any other administrator of his intestate; and that the plaintiff never produced said bond to him as administrator, duly authenticated, as required by the statute of Tennessee, whereby to charge the personal estate of decedent, in the hands of defendant as his administrator to be administered.

The provisions of the statute pleaded, relating to conveyances of lands, in cases where the obligor of a bond for titles dies before the execution of the conveyance, we regard as giving a remedy only; and therefore they can not. be made the subject of extra-territorial application. But the subsequent provision, exempting the personal estate of such a decedent from being charged in favor of the holder of such an obligation, unless the pre-requisites of the statute are complied with, relate to the validity of the contract itself, when it is sought to be enforced by a recovery of damages for an alleged breach of it, in an action at law. A recovery, in such an action, would be a charge upon the personal estate of the decedent, and is expressly within the inhibition of the statute, if the conditions precedent prescribed by it have not been performed. We therefore hold, that the matters of the third .plea were properly pleadable in bar of the present action, and that in sustaining the demurrer to the plea, the court below erred.

As our conclusion upon this question will probably be decisive of the case, we do not consider any of the other questions presented by the record.

Judgment reversed, and cause remanded.