White v. Sanborn

Richardson, C. J. delivered the opinion of the court. In this ease the defendant conveyed to Bohonon lands in Vermont with warranty, and Bohonon assigned all his interest in the land to the plaintiff, who, having been evicted, now brings his action of covenant m assignee of the estate against Sanborn, and the question is, whether the action is local so that it cannot be maintained in this state ? In general, actions founded upon contracts are transitory. although made and even stipulated to be performed out of the state, for Blkum et contráete! sunt nulhax L-ei. But when the action is founded upon privity of estate it is local, and lies only in the place where the land is. 1 Chitty's Pl. 274; Comyn's, Digest "action” N, 4; 2 Salkeld, 651, Way v. Yally; 1 Salkeld. 80, Barker v. Damer; 1 Shower, 187. S. C; 6 Mod. Rep. 194, Way v. Yally; 6 Mass. Rep. 331, Lienou v. Ellis; 5 Cowen, 18; 1 Wilson, 1 165, Thrale v. Cornwall. It i~ \ ion b nut ~ [223] any privity of contract between the parties, but upon privity of estate ; and unless the statute of the 33 Henry 8, chapter 34, has been adopted here, and has the effect to transfer the privity of contract to the plaintiff, or the law of locality of actions is changed here, this action is local, and should have been brought in the state where the land lies. Whether the statute of the 33 Henry 8, has been adopted here, is a question, not necessary to be decided in this case ; because, if it has been adopted, it does not extend to this case. That statute, in its terms, is applicable only to covenants and conditions annexed to estates for life or for years, and not to covenants upon estates in fee or fee tail. Buller’s N. P. 159. It was decided, soon after the statute was passed, that it did not extend to covenants upon estates in fee. Cro. Eliz. 863, Lewis v. Ridge. And it seems to be now considered as settled, in England, that it is confined, in its operation, to covenants upon estates for life or for years. Coke Litt. 215, a, Woodfall’s Landlord and tenant, 285; Comyns Digest, “ Condition,” O, 2; Buller’s N. P. 159. But it is said, that the principles of the common law, in relation to local actions, have not been adopted here ; and the case of debt upon a judgment, which is local in England, but not so here, has been mentioned as a departure from the English law. It often happens that an action, which is not in its nature local, is made so, in some respects, by the laws of the place where the action is to be brought. Thus debt, account, and such like actions were made local by the statute of 6 Richard 2, which enacted that if by the declaration it appeared that the contract, or other cause of action, was in another county, than where the writ was brought, it should abate. That statute seems to have made debt upon a judgment local in England. Comyn’s Digest, “ Action,” N, 6, and to have given rise to the practice of [224] giving a venue only for form and for the sake of a trial by » videlicet in the county where the action is brought. Wc have a statute which makes all personal actions, in some respects, local, when the parties live in the state, and confines the action to the county, where one of the parties lives. But some actions are, in their nature, local, and can only arise in a particular place or country. This is the case with all real actions, and with ejectment for the recovery of seizin and possession of land. So actions for damages done to real estate, as trespass quare ckmsum fregit, and the like, are, in their nature, local. 4 D. & E. 503, Doulson v. Matthews; 1 Chitty’s Pl. 271. Actions against public officers for neglect of any duty imposed by law, are also local. 5 N. H. Rep. 456. And it is settled, that not only real actions are local, but that all actions, founded on any privity of estate in land, are also local. Whether it might not have been better if the law had been otherwise settled in this respect, it is not for us to say. We sit here to determine, not what the law should be, but what it is. But it is said that, although this action, if the cause of action had arisen within the state, might have been local, it is not so when the cause of action arises out of the state. But this point was decided otherwise in the case of Barker v. Damer, 1 Salkekd, 80. There the land lay in Ireland,and covenant, founded on privity of estate brought in England, was held not to lie, because the covenant was local. I Saunders, 241, note 6. That decision seems never to have been questioned, and appears to us to rest upon sound principles. Judgment for the defendant.