OF THE Supreme Court of the United States AT OCTOBER TERM, 1909. 1] *SARAH S. FALL, Plff. in Err., V. ELIZABETH EASTIN. (See S. C. Reporter's ed. 1-15.) Courts - chancery power to affect foreign property full faith and credit. A deed to land situated in Nebraska, made by a commissioner under a decree of a court of another state in an action of divorce, in which, in determining the equities of the parties, conformably to the practice in that state, the land was set apart to the wife as her own separate property, need not be recognized in Nebraska, under the full faith and credit clause of the Federal Constitution. [For other cases, see Courts, 61-74; Judgment, VI. b, 3, in Digest Sup. Ct. 1908.1 [No. 24.] Submitted April 30, 1909. vember 1, 1909. I N ERROR to the Supreme Court of the State of Nebraska to review a decree which, on rehearing, reversed a decree of the District Court of Hamilton County, in that state, in favor of plaintiff in a suit to quiet title to land, which had been conveyed to plaintiff by a commissioner under a decree of a court of the state of Washington, in an action for divorce, in which the land was set apart to the plaintiff as her separate property. Affirmed. See same case below, 75 Neb. 104, 106 N. W. 412; on rehearing, 75 Neb. 120, 121 Am. St. Rep. 767, 113 N. W. 175. The facts are stated in the opinion. Messrs. Charles J. Greene and Ralph W. Breckenridge submitted the cause for plaintiff in error. Mr. Thomas H. Matters was on the brief: The suggestion of the Nebraska supreme Decided No- court that the full faith and credit provision of the Federal Constitution establishes NOTE. On jurisdiction of equity over suits affecting real property in another state or country-see notes to Proctor v. Proctor, 69 L.R.A. 673, and Fall v. Eastin, 23 L.R.A. (N.S.) 924. As to full faith and credit to be given to state records and judicial proceedings-see notes to Lindley v. O'Reilly, 1 L.R.A. 79; Cummington v. Belchertown, 4 L.R.A. 131; Rand v. Hanson, 12 L.R.A. 574; Wiese v. San Francisco Musical Fund Soc. 7 L.R.A. 578; Darby v. Mayer, 6 L. ed. U. S. 367; Mills v. Duryee, 3 L. ed. U. S. 411; D'Arcy v. Ketchum, 13 L. ed. U. S. 648; and Huntington v. Attrill, 36 L. ed. U. S. 1123. Conveyance by officer of court as affecting real property in another state. The rule is well settled that when a case otherwise properly cognizable in equity is presented, a court of equity having personal jurisdiction of the parties may, in the exercise of its discretion, assume jurisdiction, although land in another state may be affected, if it can grant effective relief by a decree acting solely upon the person whose title or interest in the land is to be affected, as distinguished from a decree acting directly upon the land. See note to Proctor v. Proctor, supra. But the decree is ineffectual without a conveyance by the holder of the title pursuant to the requisition of the decree. Watkins v. Holman, 16 Pet. 25, 10 L. ed. 873; Corbett v. Nutt, 10 Wall. 464, 19 L. ed. 976; Carpenter v. Strange, 141 U. S. 87, 35 L. ed. 640, 11 Sup. Ct. Rep. 960; Tardy v. Morgan, 3 McLean, 358, Fed. Cas. No. 13,752; Bullock v. Bullock, 52 N. J. Eq. 561, 27 L.R.A. 213, 46 Am. St. Rep. 528, 30 Atl. 676; Lindley v. O'Reilly, 50 N. J. L. 636, 1 L.R.A. 79, 7 Am. St. Rep. 802, 15 Atl. 379; Johnson v. Kimbro, 3 Head, 557, 75 Am. Dec. 781; Paschal v. Acklin, 27 Tex. 173; Morris v. Hand, 70 Tex. 481, 8 S. W. 210; and see note to Proctor v. Proctor, supra, And a conveyance by a master or commissioner, or other officer appointed by the of one state are duly pleaded and proved in the courts of another, they have the effect of being not merely prima facie evidence, but conclusive proof, of the rights thereby adjudicated; and a refusal to give them the force and effect, in this respect, which they had in the state in which they were rendered, denies to the party a right secured to him by the Constitution and laws of the United States. Huntington v. Attrill, supra; Cheever v. Wilson, 9 Wall. 108, 19 L. ed. 604. Where there have been attempts to impeach, by collateral attack, the judgments of one court when sought to be enforced in another, the court has required evidence establishing the want of jurisdiction. German Sav. & L. Soc. v. Dormitzer, 192 Huntington v. Attrill, 146 U. S. 684, 36 U. S. 125, 48 L. ed. 373, 24 Sup. Ct. Rep. L. ed. 1133, 13 Sup. Ct. Rep. 224. The objects of this clause of the Constitution are, first, to declare, and by its own force establish, that full faith and credit should be given to the judgments of every other state; second, to authorize Congress to prescribe the manner of authenticating them; and third, to authorize Congress to prescribe their effect when so authenticated. Story, Const. §§ 1307, 1308. Not only did Congress, in the exercise of that power, prescribe the manner in which records and judicial proceedings of any state shall be authenticated, but it has defined the effect thereof by enacting that the said records and judicial proceedings so authenticated shall have such faith and credit given to them in every court within the United States as they have by law or usage in the courts of the state from which they are taken. Huntington v. Attrill, supra. When, as in the case at bar, judgments court for that purpose, is ineffectual. FALL v. EASTIN; Watkins v. Holman; and Corhett v. Nutt,-supra; Watts v. Waddle, 1 McLean, 200, Fed. Cas. No. 17,295; Farmers' Loan & T. Co. v. Postal Teleg. Co. 55 Conn. 334, 3 Am. St. Rep. 53, 11 Atl. 184; McLawrin v. Salmons, 11 B. Mon. 96, 52 Am. Dec. 563; Burnley v. Stevenson, 24 Ohio St. 474, 15 Am. Rep. 621; Moseby v. Burrow, 52 Tex. 396; Morris v. Hand, supra. This point is also illustrated by cases holding that a trustee appointed by a court of one state cannot pass title to real estate | in another state. Corbett v. Nutt, supra; Contee v. Lyons, 8 Mackey, 207; West v. Fitz, 109 Ill. 425; Glen v. Gibson, 9 Barb. 634; Henry v. Doctor, 9 Ohio, 49; Williams v. Maus, 6 Watts, 278, 31 Am. Dec. 465. Contra, Smith v. Davis, 90 Cal. 25, 25 Am. St. Rep. 92, 27 Pac. 26. But a court of equity has power to substitute its master for a faithless trustee, who will be trustee pro hac vice, and direct 221; Rogers v. Alabama, 192 U. S. 226, 231, 48 L. ed. 417, 419, 24 Sup. Ct. Rep. 257. Where a court of equity, clothed with full power not only to dissolve the marriage, but to dissolve the property interest, however involved, or wherever located, makes a decree based upon the application of both parties, separating their joint rights and equities in their proprty, such decree should, by every rule and principle, receive full faith and credit in the courts of this country. Dunlap v. Byers, 110 Mich. 109, 67 N. W. 1067; Shanks v. Klein, 104 U. S. 19, 26 L. ed. 635; Polson v. Stewart, 167 Mass. 211, 36 L.R.A. 771, 57 Am. St. Rep. 452, 45 N. E. 737. The commands of the constitutional requirement invoked in this litigation, and the laws enacted by Congress to aid in its execution, have uniformly been enforced in this court. Jaster v. Currie, 198 U. S. 144, 49 L. ed. him to make the sale and conveyance of real estate beyond its jurisdiction, requisite to execute the trust. Byrne v. Jones, 90 C. C. A. 101, 159 Fed. 321. Analogous cases, too, are those holding that a court of one country cannot confer upon an administrator power to sell the real property of the decedent in another. Watkins v. Holman, 16 Pet. 26, 10 L. ed. 874; Sheldon v. Rice, 30 Mich. 296, 18 Am. Rep. 136; Nowler v. Coit, 1 Ohio, 519, 13 Am. Dec. 640; Allen v. Shanks, 90 Tenn. 359, 16 S. W. 715; Brown v. Edson, 23 Vt. 435. A curatrix acting under authority of the probate court of Louisiana cannot make a valid conveyance of land belonging to the ward in Texas. Wren v. Howland, 33 Tex. Civ. App. 87, 75 S. W. 894. A committee of a lunatic, appointed in one state, cannot convey land in another. Morris v. Hand, supra; Hotchkiss v. Middlekauf, 96 Va. 649, 43 L.R.A. 806, 32 S. E. 36. 988, 25 Sup. Ct. Rep. 614; Harris v. Balk, 198 U. S. 215, 49 L. ed. 1023, 25 Sup. Ct. Rep. 625, 3 A. & E. Ann. Cas. 1084; Harding v. Harding, 198 U. S. 317, 49 L. ed. 1066, 25 Sup. Ct. Rep. 679. No brief was filed for defendant in error. "Sec. 2007. In granting a divorce, the court shall also make such disposition of the property of the parties as shall appear just and equitable, having regard to the respective merits of the parties and to the condition in which they will be left by such divorce, and to the party through whom the Mr. Justice McKenna delivered the opin- property was acquired, and to the burdens ion of the court: The question in this case is whether a deed to land situate in Nebraska, made by a commissioner under the decree of a court of the state of Washington in an action for divorce, must be recognized in Nebraska under the due faith and credit clause of the Constitution of the United States. The action was begun in Hamilton county, Nebraska, in 1897, to quiet title to the land and to cancel a certain mortgage thereon, given by E. W. Fall to W. H. Fall, and to cancel a deed executed there for to defendant in error, Elizabeth Eastin. Plaintiff alleged the following facts: She and E. W. Fall, who was a defendant in the trial court, were married in Indiana in 1876. Subsequently they went to Nebraska, and, while living there, "by their joint efforts, accumulations, and earnings, acquired jointly and by the same conveyance" the land in controversy. In 1889 they removed to the state of Washington, and continued to reside there as husband and wife until January, 1895, when they separated. On the 27th of February, 1895, her husband, she and he then being residents of King county, Washington, brought suit against her for divorce in the superior court of that county. He alleged in his complaint that he and plaintiff were bona fide residents of King county, and that he was the owner of the land in controversy, it being, as he alleged, "his separate property, purchased by money received from his parents." He prayed for a divorce and "for a just and equitable division of the property." Plaintiff appeared in the action by answer 3] and cross complaint, *in which she denied the allegations of the complaint, and alleged that the property was community property, and "was purchased by and with the money and proceeds of the joint labor" of herself and husband after their marriage. She prayed that a divorce be denied him, and that the property be set apart to her as separate property, subject only to a mortgage of $1,000, which she alleged was given by him and her. In a reply to her answer and cross complaint, he denied that she was the "owner as a member of the community in conjunction" with him of the property, and repeated the prayer of his complaint. Plaintiff also alleges that the Code of Washington contained the following provision: imposed upon it for the benefit of the children, and shall make provision for the guardianship, custody, and support and education of the minor children of such marriage." She further alleges that that provision the state, requiring of the parties to an had been construed by the supreme court of action for divorce to bring into court all of ""their property, and a complete showing must be made,' ," and that it was decided that § 2007 conferred upon the court “the power, in its discretion, to make a division of the separate property of the wife or husband."" She further alleges that a decree was entered, granting her a divorce, and setting apart to her the land in controversy as her own separate property forever, free and unencumbered from any claim of the plaintiff thereto, and that he was ordered and directed by the court to convey all his right, title, and interest in and to the land within five days from the date of the decree. *She also alleges the execution of the [4 deed to her by the commissioner appointed the mortgage to W. H. Fall, and the deed to by the court, the execution and recording of defendant; that the deed and mortgage were each made without consideration, and for of defrauding her, and that they cast a cloud upon her title derived by her under the decree of divorce and the combe quieted, and that the deed and mortgage missioner's deed. She prays that her title be declared null and void. the purpose W. H. Fall disclaimed any interest in the premises, and executed a release of the mortgage made to him by E. W. Fall. Defendant answered, putting in issue the legal sufset forth the fact of the loan of $1,000 to E. ficiency of the complaint, and, in addition, W. Fall, the taking of a note therefor signed by him and William H. Fall, the giving of an indemnity mortgage to the latter, and the execution subsequently of a deed by E. W. Fall in satisfaction of the debt. No personal service was had upon E. W. Fall, and he did not appear. A decree was passed in favor of plaintiff, which was affirmed by the supreme court. 75 Neb. 104, 106 N. W. 412. A rehearing was granted and the decree was reversed [75 Neb. 120, 121 Am. St. Rep. 767, 113 N. W. 175], Judge Sedgwick, who delivered the first opinion, dissenting. There is no brief for defendant in this the Washington court over both the parties Jurisdiction in and the subject-matter. court, but the contentions of the parties and the argument by which they are supported are exhibited in the opinions of the supreme that court is the first essential, but the ulticourt. mate question is, What is the effect of the The question is in narrow compass. The decree upon the land, and of the deed exefull faith and credit clause of the Constitu-cuted under it? The supreme court of the we understand *its [6 tion of the United States is invoked by state concedes, as plaintiff to sustain the deed executed under opinion, the jurisdiction in the Washington the decree of the court of the state of Wash- court to render the decree. The court said: ington. The argument in support of this is that the Washington court, having had jurisdiction of the parties and the subject matter, in determination of the equities between the parties to the lands in controversy, decreed a conveyance to be made to her. This conveyance, it is contended, was decreed upon equities, and was as effectual as though her "husband and she had been strangers, and she had bought the land from 5] him and *paid for it, and he had then refused to convey it to her." In other words, that the decree of divorce in the state of Washington, which was made in consummation of equities which arose between the parties under the law of Washington, was "evidence of her right to the legal title of at least as much weight and value as a contract in writing, reciting the payment of the consideration for the land, would be." "We think there can be no doubt, where a court of chancery has, by its decree, ordered and directed persons properly within its jurisdiction to do or refrain from doing a certain act, it may compel obedience to this decree by appropriate proceedings, and that any action taken by reason of such compulsion is valid and effectual wherever it In the instant case, if may be assailed. Fall had obeyed the order of the Washington court, and made a deed of conveyance to his wife of the Nebraska land, even under the threat of contempt proceedings, or after duress by imprisonment, the title thereby conveyed to Mrs. Fall would have been of equal weight and dignity with that which he himself possessed at the time of the execu tion of the deed." But Fall, not having executed a deed, the court's conclusion was, to quote its language, that "neither the decree nor the commissioner's deed conferred any right or title upon her." This conclusion was deduced, Nebraska providing for the disposition of real estate in divorce proceedings. The court said: The defendant, on the other hand, contends, as we gather from his petition for a rehearing in the supreme court of the state, and from the opinions of the court, that "the Washington court had neither power not only from the absence of power genernor jurisdiction to affect in the least, either ally of the courts of one state over lands legally or equitably,” lands situated in Ne-situate in another, but also from the laws of braska. And contends further that, by the provision of chap. 25, p. 276, Comp. Stat. (Neb.) 1901, a court had no jurisdiction to award the real estate of the husband to the wife in fee as alimony, and a decree, in so far as it attempts to do so, is void and sub-proceeding, except as derived from the statject to collateral attack. For this view are cited Cizek v. Cizek, 69 Neb. 800, 96 N. W. 657, 99 N. W. 28; 5 A. & E. Ann. Cas. 464; Aldrich v. Steen, 71 Neb. 33, 98 N. W. 445, 100 N. W. 312. "Under the laws of this state, the courts have no power or jurisdiction in a divorce ute providing for such actions, and, in such an action, have no power or jurisdiction to divide or apportion the real estate of the parties. Nygren v. Nygren, 42 Neb. 408, 60 N. W. 885; Brotherton v. Brotherton, 14 The contentions of the parties, it will be Neb. 186, 15 N. W. 347; Cizek v. Cizek, observed, put in prominence and as control- supra; Aldrich v. Steen, 71 Neb. 33, 57, 98 ling, different propositions. Plaintiff urges N. W. 445, 100 N. W. 311. In the Cizek the equities which arose between her and her Case, Cizek brought an action for divorce, husband, on account of their relation as hus- and his wife filed a cross bill, and asked for band and wife, in the state of Washington, | alimony. The court dismissed the husband's and under the laws of that state. The de- bill, found in favor of the wife, and, by stipfendant urges the policy of the state of Ne-ulation of the parties, set off to the wife braska, and the inability of the court of Washington, by its decree alone or the deed executed through the commissioners, to convey the land situate in Nebraska. To the defendant's view the supreme court of the state finally gave its assent, as we have the homestead, and ordered her to execute to the husband a mortgage thereon, thus endeavoring to make an equitable division of the property. *Afterwards, in a contest [7 arising between the parties as to the right of possession of the property, the decree was pleaded as a source of title in the wife, but it was held that that portion of the decree which set off the homestead to the wife 215 U. S. was absolutely void and subject to collateral, it may do through the party, it may do to attack, for the reason that no jurisdiction give effect to its decree respecting propwas given to the district court in a divorce erty, whether it goes to the entire disposiproceeding to award the husband's real tion of it or only to affect it with liens or estate to the wife in fee as alimony. The burdens. Story, Confl. L. § 544. In French courts of this state, in divorce proceedings, v. Hay (French v. Stewart), 22 Wall. 250– must look for their authority to the statute; 252, 22 L. ed. 857, 858, this court said that and so far as they attempt to act in excess a court of equity, having jurisdiction in of the powers therein granted, their action personam, has power to require a defendant is void and subject to collateral attack. "to do or to refrain from doing anything A judgment or decree of the nature of the beyond the limits of its territorial jurisWashington decree, so far as affects the real diction which it might have required to be estate, if rendered by the courts of this done or omitted within the limits of such state, would be void. territory." The extent of this power this court has also defined. Watts v. Waddle, 6 Pet. 389, 8 L. ed. 437, has features like the case at bar. The suit was for the specific performance of a contract for the conveyance of land. It became necessary to pass upon the effect of a decree requiring the conveyance of the lands concerned. The decree appointed a commissioner under a statute of the state to make the conveyance in case the defendants or any of them failed to make the conveyance. This court said: "A decree cannot operate beyond the state in which the jurisdiction is exercised. It is not in the power of one state to prescribe the mode by which real property shall be conveyed in another. This principle is too clear to admit of doubt." In reply to the contention that the deed of the commissioner was a legal conveyance, it was said: "The deed executed by the commissioner in this case *must be considered as forming a [9 part of the proceedings in the court of chancery, and no greater effect can be given to it than if the decree itself, by statute, was made to operate as a conveyance in Kentucky as it does in Ohio." "The decree is inoperative to affect the title to the Nebraska land, and is given no binding force or effect so far as the courts of this state are concerned, by the provisions of the Constitution of the United States with reference to full faith and credit. Since the decree upon which the plaintiff bases her right to recover did not affect the title to the land, it remained in E. W. Fall until devested by operation of law or by his voluntary act. He has parted with it to Elizabeth Eastin; and whether any consideration was ever paid for it or not is immaterial so far as the plaintiff is concerned, for she is in no position to question the transaction, whatever a creditor of Fall might be able to do." It is somewhat difficult to state precisely and succinctly wherein plaintiff disagrees with the conclusions of the supreme court. Counsel says: "It is not claimed that the Washington court could create an equity in lands in Nebraska by any finding or decree it might make, and thus bind the courts of a sister state; but it is claimed that, where rights and equities already exist, the parties being within the jurisdiction of the court, it can divide them and apportion them by a 8] judgment or decree which would be conclusive upon the parties in any subsequent proceeding in a court having jurisdiction of the lands, for the purpose of quieting the title in the equitable owner." If we may regard this as not expressing a complete opposition to the views of the su preme court, we must at least treat it as contradicting their fundamental principle, that is, that the decree, as such, has no extraterritorial operation. The territorial limitation of the jurisdic tion of courts of a state over property in another state has a limited exception in the jurisdiction of a court of equity, but it is an exception well defined. A court of equity, having authority to act upon the person. may indirectly act upon real estate in another state, through the instrumentality of this authority over the person. Whatever In Watkins v. Holman, 16 Pet. 25, 57, 10 L. ed. 873, 886, passing on a decree made by the supreme court in Massachusetts by virtue of a statute of that state, it was said: "No principle is better established than that the disposition of real estate, whether by deed, descent, or by any other mode, must be governed by the law of the state where the land is situated." And further: "A court of chancery, acting in personam, may well decree the conveyance of land in any other state, and may enforce their decree by process against the defendant. But neither the decree itself nor any conveyance under it, except by the person in whom the title is vested, can operate beyond the jurisdiction of the court." See, also, Massie v. Watts, 6 Cranch, 148, 3 L. ed. 181, and Miller v. Sherry, 2 Wall. 237, 248, 249, 17 L. ed. 827, 829, 830. In Corbett v. Nutt, 10 Wall. 464, 475, 19 L. ed. 976, 979, the doctrine was repeated that a court of equity, acting upon the per |