Clark v. Eltinge

Root, J.

In 1885, while respondents were residing as husband and wife, in the state of Montana, the husband borrowed from assignors of appellants the sum of $1,270, giving his promissory note therefor, secured by mortgage upon the property which he bought with the money, and used as a home for himself and wife; Subsequently they changed their residence to this state, and turned over the possession of the mortgaged property to appellants, who collected the rents, paid therefrom taxes and incidental expenses, and applied the balance as payment upon the note. In 1899, appellants foreclosed the mortgage, and applied the proceeds of the sale of the property upon the note. No deficiency judgment was taken, no personal service having been had upon respondents. Appellants brought the present action to recover the balance due upon said note. This case has been appealed here by these same appellants twice heretofore. 29 Wash. 215, 69 Pac. 736; 31 Wash. 323, 75 Pac. 866.

Some of the questions involved in the present appeal appear to have been decided in the former decisions, and we have no disposition to change the conclusions therein announced. In the trial from which the present appeal was taken, there was a question as to how much of the rental of the premises should be credited upon the note. Appellants claimed that the property was turned over to them, and that they were to get such an amount of rentals as they could, and, after deducting the taxes and costs of necessary repairs and incidental expenses, apply the balance as credits upon the note. Respondents, claimed that they were to be allowed a straight credit of $35 a month for the use of said premises. This issue was one of fact for the jury to determine upon the evidence; It is also contended by the appellants that the allowance of credit for rentals should be only for that period prior to the foreclosure of the mortgage. Respondents, however, claim, and the trial court held and instructed the jury, that they were entitled, also; to an allowance of credit of the rentals for the period of the one year of redemption following the date of the- foreclosure. Said court based its ruling on the statute of 1897, p. 227, Laws, of this state. We think the appellants’ contention must be sustained. At the time this mortgage was foreclosed, the law of this state permitted the purchaser to enter into, possession of the property immediately upon the confirmation of the sale upon foreclosure. Laws 1899, p. 92. At the. time of the execution of the mortgage, the law was practically the same. 2 Hill’s Code, § 519; Debenture Corp. v. Warren, 9 Wash. 312, 37 Pac. 451; Hardy v. Herriott, 11 Wash. 460, 39 Pac. 958; Knipe v. Austin, 13 Wash. 189, 43 Pac. 25, 44 Pac. 531; Hagerman v. Heltzel, 21 Wash. 444, 58 Pac. 580. During the period of two years; from 1897 to 1899, there was in existence a statute allowing the judgment debtor to have possession of property during the year of redemption (Laws 1897, p. 227) ; but we cannot, see why that statute should apply here. The charge of the trial judge to the jury wherein he authorized them to credit said year’s rental upon the note was, therefore, erroneous.

The question of the wife’s liability is again presented upon this appeal. As to whether or not she was liable in any way for this debt must depend upon the law of Montana, as it existed at the time the indebtedness was created. In the absence of a showing as to what the law of Montana was, regarding this matter, it must be presumed to have been the same as the law of this state. Clarke v. Eltinge, 29 Wash. 215, 69 Pac. 736; Gunderson v. Gunderson, 25 Wash. 459, 65 Pac. 791. It was held by this court, when state, this debt would be a community debt. As to this this case was here before, that, under the laws of the question of her separate property being liable for this obligation, under the statutes of that state, this court, in 34 Wash. 323, 75 Pac. 866, said:

“Whether that fact brings this debt within the classification of the husband’s liabilities for which the wife’s separate property is not exempt, we apprehend must depend upon the construction placed upon the statute by the courts of Montana, and resort must be h'ad to such construction, as a fact, to determine the force of the statute when applied to the facts here.”

In view of this holding, respondents, in the last trial, placed upon the witness stand an attorney of many years experience in the practice in the state of Montana, and sought to show by him “the consensus of opinion of the bench and bar of Montana as to the meaning of that section”—referring to a section of the Montana statutes relating to exemptions of a wife’s property. We do not believe this is a proper method of ascertaining the construction to be placed upon the statutes of a sister state. Doubtless the general rule is that a person, learned in the law. of a foreign state or country, may give evidence as to what the law of that state or country is. When the law in question is a statute of a sister state, and the test of that statute is before the court (as it was in this case), the question of the construction-to be given to the language thereof should be determined by ascertaining, if possible, the construction given said statute by the highest court of that state. If this cannot be ascertained, it would be doubtless competent to show what the holdings of courts of general jurisdiction in that state were as to this law. If no proof as to the holding of any court of that state is produced, then it is the duty of the court where the trial is being had to interpret and construe the statute of said sister state according to the same rules that are applicable in the construction of a domestic statute. This we conceive to be the proper method, instead of attempting to prove by some lawyer his view of said statute, or his opinion as to what the consensus of the opinion of the bench and bar of said other state might be. In the case at bar, if the attorney in question had testified that the supreme court of Montana had construed the statute in question in a certain manner, or that said court had never passed upon said statute., but that some certain court, or courts of general jurisdiction in said state had construed it in a certain manner, and that it had not been construed differently by other courts of that state, this perhaps would have been competent evidence. But the evidence, as given by this witness, was indefinite and uncertain, and purported to be principally his own opinion as to the meaning of the statute to which his • attention was called, and his concept tion of what the consensus of opinion of the bench and bar was touching the construction of said statutes.

Respondents contend that the foreclosure decree of the circuit court of Silver Bow county, Montana, is not, as to the fact of foreclosure, conclusive upon the court here, her cause that proceeding was commenced by service of summons by publication, and the record does not show that the summons was published in the manner and for the length of time required by the statutes of this state. The constitution of the United States requires each state of the Union to give full faith and credit to the judicial proceedings of every other state of the Union. It must, therefore, be presumed that all of the requirements of the statutes of Montana were taken before this judgment and decree of foreclosure was rendered. Being in the nature of a proceeding m rem, and no personal judgment being sought or taken against the respondents themselves, the court could properly acquire jurisdiction to render the decree of foreclosure upon the property in that state without having personal service upon the respondents. Service by publication was sufficient; and the judgment being fair and regular upon its face, it will be presumed to have been made and entered pursuant to all the requirements of the statutes of that state. [Respondents’ contention that the question as to whether or not there had been a foreclosure of the mortgage was for the jury, is incorrect. It was for the trial judge to say whether or not the record of this decree was properly authenticated to be received as evidence. Having decided that it was, and the same having been admitted, its effect was conclusive of the fact of foreclosure, and that question no longer remained an open, issue in the case. Greenleaf, Evidence (14th ed.), § 502, note 3, says:

“Where a domestic record is put in issue by the plea, the. question is tried by the court, notwithstanding it is a question of fact. And the judgment of a court of record of a sister state in the Union, is considered for this purpose, as a domestic judgment.”

Upon the question of the conclusiveness of the judgment of the Montana court, see, Galpin v. Page, 85 U. S. 371, 21 L. Ed. 959; Quarl v. Abbett, 102 Ind. 233, 1 N. E. 476, 52 Am. Rep. 662; 1 Freeman, Judgments (4th ed.), pp. 190, 191, §§120a, 565; Brown, Jurisdiction, §20a, note 1; Evers v. Watson, 156 U. S. 532, 15 Sup. Ct. 430, 39 L. Ed. 520; Trowbridge v. Spinning, 23 Wash. 48, 62 Pac. 125, 83 Am. St. 806, 54 L. R. A. 204; Dormitzer v. German Sav. etc. Soc., 23 Wash. 132, 194, 62 Pac. 862; Fidelity Ins. etc. Co. v. Nelson, 30 Wash. 341, 70 Pac. 961; Voorhees v. Bank, 10 Peters 449, 9 L. Ed. 490.

As to the effect of a statute of exemptions, we may say that, if the obligation, when it was created, constituted a liability against the wife, then the only exemptions which she is entitled to are those provided by the statutes of the state where she resides and is sued. In the case of La Selle v. Woolery, 14 Wash. 70, 44 Pac. 115, 53 Am. St. 855, 32 L. R. A. 73, this court said:

“The settled rule is that the law of the' place where the contract was made must govern in determining the character, construction and validity of such contract; while the law of the place where suit is instituted upon the contract governs as to' The nature, extent and form of the remedy, . . . whether arrest of the person or attachment of the property may be allowed; whether a debt is or is not discharged by operation of law, as insolvent laws, or barred by statutes of limitation; rights of set-off; the admissibility and effect of evidence; the modes of proceeding and the forms of judgment and execution.’ 2 Abbott’3 Law Dictionary, p. 36.”

In the case of Pritchard v. Norton, 106 U. S. 124, 1 Sup. Ct. 102, 21 L. Ed. 104, the supreme court of the United States used the following language:

“The rule deduced by Mr. Wharton, in his Conflict of Laws [§401], as best harmonizing the authorities and effecting the most judicious result, and which was cited approvingly by Mr. Justice Hunt in Scudder v. Union National Bank, 91 U. S. 406, is, that ‘obligations in respect to the mode of their solemnization are subject to the rule locus regit actum; in respect to their interpretation, to xne l»x loci contractus; in respect to the mode of their performance, to the law of the place of their performance. But the lex fori determines when and how such laws, when foreign, are to be adopted, and, in all oases not specified above, supplies the applicatory law.’ This, it will be observed, extends the operation of the lex fori beyond the process and remedy, so as to embrace the whole of that residuum which cannot be referred to other laws. And this- conclusion is obviously just; for whatever cannot, from the nature of the case, be referred to any other law, must be determined by the tribunal having jurisdiction of the litigation, according to the law of its own' locality.”

In 22 Am. & Eng. Ency. Law (2d ed.), 1383, the author says: “The lex fori governs in all matters relating to the remedy and the course of procedure.” In Willard v. Wood, 135 U. S. 309, 10 Sup. Ct. 831, 34 L. Ed. 210, it was said:

“Assuming that the mortgagee has acquired by the law of New York a right to enforce such an agreement against a grantee of the mortgagor, the form of his remedy, whether it must be in covenant or in assumpsit, at law or in equity, is governed by the lex fori, the law of the District of Columbia, where the action was brought. Dixon v. Ramsay, 3 Cranch 319, 324; United Stales Bank v. Donnally, 8 Pet. 361; Wilcox v. Hunt, 13 Pet. 378; Leroy v. Beard, 8 How. 451; Pritchard v. Norton, 106 U. S. 124, 130, 133.”

These authorities show that the liability of a person upon a note or other obligation is fixed and determined by the law of the place where such obligation is created, but that all matters appertaining to the enforcement of the remedy are controlled by the law of the forum.

Eor the reasons hereinbefore set forth, the judgment •of the honorable superior court, is reversed, and the cause remanded for further proceedings, not inconsistent with this and the decisions heretofore rendered in this eas© by this court.

Mount, C. J., Grow, Dunbar, and Rudkin JJ.. concur. Hadlet and Fullerton, JJ., took no part