CCCCLII. What effect has the change of domicil on immoveable property? The great majority of foreign jurists hold that the Law of the Matrimonial domicil affects immoveable property, and remains unaltered by the change of domicil. We have seen, in the case recently cited, how strongly the French Tribunals hold this opinion. And it certainly appears to be the legitimate conclusion from the premiss that the Law of the Matrimonial domicil is, in the absence of express contract, the Law which governs the Marriage Contract, whether this premiss be founded on the hypothesis of a tacit contract, or on the hypothesis of a voluntary submission to the Law of the Matrimonial domicil. CCCCLIII. According to the French Law, persons may be married under (1) communauté de biens, or (2) the régime dotal (m). And the best authorities hold, that, in the absence of any express stipulation to the contrary, it is for the Law of the Matrimonial domicil to decide under which of these two the marriage was contracted. But, if that Law decide in favour of the régime dotal, the questions remain, (1) what property is dotal? (2) what is the condition of the dotal property (biens dotaux)? e.g. is it alienable or not? and by reference to what law are these questions to be answered? Felix and some authors are of opinion that here the lex sitús governs; because these are matters under the control of the Real Statute (mm). M. Demangeat (n) shows very forcibly the inconsistency and weakness of this opinion, and observes that the third article of the Code, "Les immeubles, même "ceux possédés par les étrangers, sont régis par la loi [(m) Code Civil, art. 1391. "Les époux peuvent déclarer, d'une manière générale, qu'ils entendent se marier ou sous le régime de la communauté, ou sous le régime dotal.”] (mm) Felix, s. 60. (n) Note to Fœlix, s. 90. See, also, M. Demangeat's essay already cited, Du Statut Personnel, Rev. Prat. de Droit Français, pp. 59-61. Française," does not apply to a case where the judge is simply called upon to interpret the intention of contracting parties; and that the French Tribunals have more than once decided that this article of the Code was not applicable to the case of an Englishman who had married. without contract, and had afterwards purchased immoveable property in France. He says, those who hold the contrary opinion are influenced by the maxim of the Roman Law, "interest Reipublicæ mulieres dotes salvas "habere," and consider the question of the alienability or inalienability of Dotal Property, as a matter of public order. He denies that the Roman maxim, framed to encourage second marriages, is applicable to Christian States; and maintains strongly the authority of the Law of the Matrimonial domicil over all immoveables everywhere, except, indeed, in States which have, by express positive law, forbidden, as a matter of public policy, the application of this Law to immoveables, within the limits of their territories (o). CCCCLIV. The answer to the two last questions (7, 8) propounded will be easily anticipated. (7) Where there has been an express contract, the stipulations contained in it are everywhere of binding force. (8) With respect to the interpretation of such a contract, it must be according to the Law of the Matrimonial domicil: nor in this case is there even the presumption which arises in the case of other contracts, that the parties intended to refer to the lex loci contractús (p). (0) Rocco is very clearly of the same opinion: "S' immagini che si stipuli in Napoli un contratto di matrimonio con le forme e le solennità chieste dalle leggi nostre. S'immagini ancora che i conjugi, e massime il marito possedano alcuna proprietà immobiliare nel territorio Francese. Poste le cose dette di sopra, senza alcun dubbio questo contratto al pari degli altri, come la pruova della convenzione avuta fra i consorti e delle mutue loro obbligazioni e diritti, avrà effetto eziandio sopra i beni collocati nell' estere contrade."-pp. 294-5. "En général (M. Demangeat observes), pour interpréter un acte (p) VOL. IV. CCCCLV. B. Upon the subject of the property of married persons, we have considered the opinions of jurists, and the decisions of judges, in those States of the European Continent whose jurisprudence is founded on the Roman Law. We have now to consider the Law of England and of the United States of North America upon the same subject: and first, as to the latter country. CCCCLVI. The United States of North America are governed partly by the English, partly (that is, in Louisiana) by the Roman, Law. In Louisiana the Law of the communio bonorum, between husband and wife, prevails. Some of the important questions which have been already discussed in this chapter have been the subject of decisions in the tribunals in that State before its present Revised Code was passed, which contains special provisions thereupon. CCCCLVII. The Supreme Tribunal of Louisiana has holden 1. That the Law of Community is a Real Statute relating to Things rather than Persons. 2. That where there is an Express Contract, that governs all previously acquired property. 3. That where there is no Express Contract, the Law of the Matrimonial domicil governs the subject. 4. In both cases all property acquired after marriage by persons who have, since their marriage, come to dwell in Louisiana, is governed by the Law of Community which prevails in that State. 5. It is not competent to persons residing in Louisiana dont les clauses sont obscures, pour suppléer à ce qu'il y a d'insuffisant dans l'expression de la volonté des parties, on recourt à la loi du lieu où l'acte a été passé : il est, en effet, assez naturel de présumer que c'est à cette loi que les parties ont voulu se référer. Mais en matière de conventions matrimoniales la même présomption ne s'applique plus, et l'on ne tient pas compte de ce que, par événement, ces conventions auraient été passées au mariage lui-même célébré ailleurs qu'au lieu du domicile du mari."-Rev. Prat. ubi supra, p. 59. to enter into a marriage contract which provides that the effects of it on their property shall be governed by a foreign Law. In the case which elicited this decision, the marriage was celebrated in the State of Louisiana (q). 6. A man ran away with a young lady (r), a minor of thirteen years of age. Both of them, at the time, were domiciled in Louisiana. They were married, without the consent of her parents, at Natchez, in Mississippi, and they then returned to Louisiana. The wife afterwards died, while they were living in that State; after her death, her mother claimed her property, as it would descend by the Law of Louisiana. The court pronounced in favour of her claim, on the double ground (i.) That the parties had the State of Louisiana in contemplation of their contract. (ii.) That the minor could not remove the incapacity which the Law of her domicil (Louisiana) had affixed upon her, to the detriment of a citizen of Louisiana. By that law a minor who marries cannot give away any part of his property without the sanction of those whose consent is necessary for the validity of the marriage. By the Law of the domicil, the mother was entitled to the inheritance of her child. It was not the Municipal Law of Mississippi which was to govern the case; but International Law, according to which personal incapacities, affixed by the Law of the domicil, travel with the person whithersoever he goes (s). 179. (q) Bourcier v. Lanusse, 3 Martins' (Americ.) Rep. p. 581; Story, s. (r) Le Breton v. Nouchet, 3 Martins' (Americ.) Rep. p. 60; Story, 8. 180. (s) This doctrine is the reverse of what Story has holden on the validity of foreign marriages in fraudem legis domestica, and identical with that of Continental Jurists, and Mr. Justice Cresswell's dictum in Brook v. Brook; therefore Story, though he adopts these Louisiana decisions as the general Law of the North American United States, says "upon some of the doctrines of which, as stated by the Court, there, perhaps, may be reason to pause; but the grounds are, nevertheless, stated with great force."-Story, s. 180. 7. A marriage settlement, executed in another State, where the parties at the time resided, and where the property was situated, if valid by the laws of the place where made, cannot be affected by the subsequent dwelling of the parties in another State (t). CCCCLVIII. Story says that these doctrines of the Louisiana Courts will, "most probably, form the basis of "the American jurisprudence on this subject" (u). And he lays down the following propositions (a) as those which, though not universally established or recognized, are nowhere gainsaid by "domestic authority," and ought to be adopted. (1) "Where there is a marriage between parties in a "foreign country, and an express contract respecting their "rights and property, present and future, that, as a matter "of contract, will be held equally valid everywhere, unless, "under the circumstances, it stands prohibited by the Laws "of the country where it is sought to be enforced. It will "act directly on moveable property everywhere. But, as to "immoveable property in a foreign territory, it will, at "most, confer only a right of action, to be enforced accord"ing to the jurisprudence rei sita (y). (2)" Where such an express contract applies in terms, or intent only, to present property, and there is a change "of domicil, the Law of the actual domicil will govern the "rights of the parties as to all future acquisitions (z). (3) "Where there is no express contract, the Law of the "Matrimonial domicil will govern, as to all the rights of "the parties to their present property in that place, and as "to all personal property everywhere, upon the principle "that moveables have no situs, or rather, that they accom (t) Young v. Templeton, 4 Louis. Ann. p. 254. (u) Ibid. s. 183. (x) Ibid. ss. 184-188. (y) Ibid. s. 184. (2) Ibid. s. 185. |