concurring. The question in this case is whether this act is a sale or mortgage, and in order to determine this another question must be solved, and that is, whether its character is to be determined by the laws of Louisiana or Mississippi.
Art. 10 O. C. enunciates the principle, that “the effect of Acts passed in one country to have effect in another country is regulated by the laws of the country where they are to have effect.”
*491This Article does not speak of the interpretation of Acts as to their chm'acter, form and nature, but as to their effect.
Its phraseology shows that the meaning of this Article is, that the Act passed in the foreign country is taken as a perfect manifestation of the will of the contracting parties, which must be executed in accordance with the laws of 'Louisiana; that is, if there is anything in the Act repugnant to our laws it will be void, but so far as it is in harmony with them it will be carried into effect. The preceding part of Article 10 ordains, that the form and effects of Acts are to be determined by the laws of the country where they are passed; then follows the part of the Article now under consideration: “the effect of Acts passed in one country to have effect in another country is regulated by the laws of the country where they are to have effect.”
The word “Eorm” is omitted in this part of the Article, and the law-giver speaks of an “Act passed,” that is, of a contract good between the parties, and perfect according to the laws of the country where it is made.”
The law-giver means that taking this Act, which is good between the parties in a foreign State and framed according to those laws, so as to give effect to such an Act in that State, yet the power of executing it in Louisiana will depend on the conformity of its intended effect with the provisions of our law ; the concluding part of Article 10 justifies our interpretation, for'it says : that the exception, that the effect of Acts passed in a foreign country is ".regulated by the laws of the country where they are to have effect, does not hold when a citizen of another State of the Union or a citizen or subject of a foreign state or country disposes by will or testament, or by any other act, causa mortis, made out of this State, of his movable property situated in this State, if at the time of making said will or testament, or any other other act cmisa mortis, and at the time of his death he resides and is domiciliated out of this State.
The latter part of this Article shows that the word “ effect” has no reference to the form or character of the Act, but only to the result and consequence of the Act.
Article 483 O. O. confirms this interpretation of Article 10: “Absolute ownership gives the right to enjoy and to dispose of one’s property in the most unlimited manner, provided it is not used in a way prohibited by la/ws or ordinances : persons who reside out of the State cannot dispose of the property they possess here in a manner different from that prescribed by its laws.
The signification of the words “in amanner different” &e.is, that the foreign Act cannot transfer property in Louisiana to other persons than to those who are entitled to it by the laws of this State.
The principle of comity and convenience requires that a contract made according-to the laws of a foreign state should be carried into effect, if it does not clash with the positive legislation of our State, and it would be unjust to interpret contracts different from the intention of the contracting parties ; and this would be the case if what would be a mortgage by the laws of the State where it is passed should be by the laws of our State an obligation, to take effect immediately, but with a resolutory condition, (2016 C. C.) and on that account bo considered by our courts a present sale with a resolutory condition.
The w'ay to arrive then at a just conclusion in this case is to inquire whether the act from Scott to Buderstein is a mortgage or sale by the laws of Mississippi where it was passed.
*492By the common law which prevails it that State this act is a mortgage, and as there is no sacramental form of mortgage in Louisiana, and this act does not violate any of the provisions of our laws, effect ought then to he given to the intention of the parties and it ought to be considered a mortgage, although, by the provisions of our Code, it might be viewed as a sale with a resolutory condition.
No injustice is done to any party, because the act of Seott to Duderstein was on record in the parish where the land was located, and parties had it in their power.to examine the effect of this act.
Por these and the reasons adduced by Chief Justice Merrick I concur in his opinion.