218 Timehri. 



The general rule is that all questions concerning the property iu im- 

 movables, including the forms of conveying them, are decided by the lex 

 situs (Westlake, Private International Law 221), and Professor Westlake 

 specially calls attention to the rejection in England of the lex loci actus 

 for the form of conveyance. Though we are not concerned here with 

 the law in England in respect of leases, it is of interest to note that he 

 points out that though terms of years in land are personal estate by 

 English law, yet they are recognised in England as being immovables for 

 the purpose of private international law and are governed by the lex situs. 

 That difficulties arise from this two-fold character of English leaseholds 

 is not surprising, and in this connection it is hardly necessary to do 

 more than call attention to the difficulties which arise when the rules of 

 succession to English personalty are considered. The case, however, of 

 In re Moses, Moses v. Valentine (1908. 2. Ch. 23c) before Mr. Justice 

 Swinfen Eady is of special import here, having reference to the fact that 

 it touches on the subject of Roman-Dutch law. Following previous cases 

 he held, in a matter arising out of an English will, that the succession of 

 leaseholds for years in the Transvaal depends on Roman-Dutch law 

 (lex loci rei sitae) although the testator was domiciled in England. 



The character of leases in Roman-Dutch law has been discussed and 

 considered in several cases in South Africa, though as already stated 

 seldom in this Colony. In the case ex parte Master of the Supreme Court 

 (1906. T. S. 563) a question arose as to the investment of moneys in the 

 Guardians Fund on mortgages of immovable propert}', and the point to 

 be decided was whether a stand (or lot as we should call it here) in 

 Johannesburg granted by a gold -mining company for a term of ninety- 

 nine years was immovable property. In the course of his judgment Sir 

 James Rose Innes pointed out that the stand had been transferred to its 

 holder by a deed singularly like that used in the ordinary conveyance of 

 landed property, but being in effect a deed of lease with a currency of 

 ninety-nine years, " The point is whether the rights given under a 

 document of this nature are property included in the term 'immovable 



property ' as used in the section If the rights are immovable property 



the fact remains that the document which confers them is in essence a 

 lease in longum tempus, and this result would follow, that the Master 

 would be justified in advancing money upon ordinary leases for ten years 

 and upwards." In considering the Common law meaning of the term 

 "immovable property'" he has re f reuce to Van tier Keessel (Thes. 178), 

 Voet (ad Pandectas 1. 8. 18) and Matthaeus (de Auctionibus 1. 3. 13, and 

 de Criminibus 48, 20, 4, 21.), and states, as regards leases in longum 

 tempus : " The Court has held that as leases of this kind approach very 

 nearly to actual alienation they are not valid against singular successors 

 of the grantor without notice unless they are registered in the Deeds 

 Office." And when considering the application of this case to British 

 Guiana, it must be remembered that registration in the Deeds Office has 

 by statute in South Africa replaced the method of execution required 

 under the Common law. The Court then held that the lease under con- 

 sideration was immovable property. 



