La Selle v. Woolery

• Citation: 44 P. 115,14 Wash. 70
• Parties: LA SELLE ET AL. v. WOOLERY, SHERIFF, ET AL.
• Decision Date: 24 February 1896
• Court: United States State Supreme Court of Washington

44 P. 115

14 Wash. 70

LA SELLE ET AL. v. WOOLERY, SHERIFF, ET AL.

Supreme Court of Washington

February 24, 1896

On rehearing. Affirmed.

For original opinion, see 39 P. 663.

Hoyt C.J., dissenting.

GORDON J.

This cause was heard and decided by this court at the January term, 1895. 39 P. 663. Respondents' petition for rehearing having been allowed, and the cause reargued, a majority of the court are of the opinion that a wrong conclusion was reached at the former hearing. The case is fully stated in the former opinion, in the course of which opinion the court said, "If a certain right is given in one state as to property of a certain nature, comity would require that those rights should be enforced in another state, as to property of the same nature." Upon further consideration, we think that this is extending the doctrine of comity too far. While comity might require that rights so acquired, against personal property merely should be enforced in this state, as against such property ( Harrison v. Sterry, 5 Cranch, 289; Whart. Confl. Laws, § 324), we do not think it ought to be extended to property subsequently acquired in this state, although of the "same nature," and this principle is wholly inapplicable to real property. The law of the place where the real property is situated must be held to control its disposition, whether by voluntary or forced sale. McCormick v. Sullivant, 10 Wheat. 192. Upon this subject no less a writer than Story has said: "All the authorities in both countries [England and America], so far as they go, recognize the principle, in its fullest import that real estate, or immovable property, is exclusively subject to the laws of the government within whose territory it is situate." Story, Confl. Laws, § 428. "Any title or interest in land, or in other real estate, can only be acquired or lost agreeably to the law of the place where the same is situate." Id. § 365. The character of the property, as regards the question of its being the separate property of either of the spouses, or the property of the community consisting of both spouses, or otherwise, is fixed by the law of the state where such property, if real property, is situated. So, too, the character of the debt is determined by the law of the place where it arose. If, by the law of Wisconsin, it was the sole, individual debt of the husband it retained that character here. Its status was fixed by the law of the place of its creation. The debt which the appellants are here seeking to enforce being by the law of Wisconsin, where it arose, merely the separate, individual debt of the husband, enforceable only against his separate, individual property, it follows that the judgment rendered upon that debt cannot be satisfied out of the real property of the community acquired in this state long after the debt arose and judgment was rendered upon it. The doctrine of the common law is that: "In regard to the merits and rights involved in actions, the law of the place where they originated is to govern. *** But the form of remedies and the order of judicial proceedings are to be according to the law of the place where the action is instituted, without any regard to the domicile of the parties, the origin of the right, or the country of the act." Story, Confl. Laws (8th Ed.)§ 558. 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;...