While a court of equity acting upon the person of the defendant
may decree a conveyance of land in another jurisdiction and enforce
the execution of the decree by process against the defendant,
neither the decree, nor any conveyance under it except by the party
in whom title is vested, is of any efficacy beyond the jurisdiction
of the court. Corbett v.
10 Wall. 464.
A court not having jurisdiction of the res
affect it by its decree nor by a deed made by a master in
accordance with the decree.
Local legislation of a state as to effect of a decree, or a
conveyance made by a master pursuant thereto, on the res
does not apply to the operation of the decree on property situated
in another state.
The full faith and credit clause of the Constitution does not
extend the jurisdiction of the courts of one state to property
situated in another state, but only makes the judgment conclusive
on the merits of the claim or subject matter of the suit, and the
courts of the state in which land is situated do not deny full
faith and credit to a decree of courts of another state, or to a
master's deed thereunder, by holding that it does not operate
directly upon, and transfer the property.
75 Neb. 104, affirmed.
Page 215 U. S. 2
The facts are stated in the opinion.
MR. JUSTICE McKENNA delivered the opinion 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
therefor 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 twenty-seventh 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
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
Plaintiff appeared in the action by answer and
Page 215 U. S. 3
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
"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 property was acquired,
and to the burdens 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 had been construed by
the supreme court of the state, requiring of the parties to an
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
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.
Page 215 U. S. 4
She also alleges the execution of the deed to her by the
commissioner appointed by the court, the execution and recording of
the mortgage to W. H. Fall, and the deed to defendant; that the
deed and mortgage were each made without consideration, and for the
purpose of defrauding her, and that they cast a cloud upon her
title derived by her under the decree of divorce and the
commissioner's deed. She prays that her title be quieted, and that
the deed and mortgage be declared null and void.
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 sufficiency of the complaint,
and, in addition, set forth the fact of the loan of $1,000 to E. 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, Judge Sedgwick,
who delivered the first opinion, dissenting.
There is no brief for defendant in this Court, but the
contentions of the parties and the argument by which they are
supported are exhibited in the opinions of the supreme court.
The question is in narrow compass. The full faith and credit
clause of the Constitution of the United States is invoked by
plaintiff to sustain the deed executed under the decree of the
court of the State of Washington. 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 him
Page 215 U. S. 5
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."
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 nor jurisdiction to affect in the least, either
legally or equitably," lands situated in Nebraska. And contends
further that, by the provision of c. 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, insofar as it
attempts to do so, is void and subject to collateral attack. For
this view are cited Cizek v. Cizek,
69 Neb. 797, 800;
Aldrich v. Steen,
100 N.W. 312.
The contentions of the parties, it will be observed, put in
prominence and as controlling, different propositions. Plaintiff
urges the equities which arose between her and her husband, on
account of their relation as husband and wife, in the State of
Washington and under the laws of that state. The defendant urges
the policy of the State of Nebraska, 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 seen.
In considering these propositions, we must start with a
concession of jurisdiction in the Washington court over both the
parties and the subject matter. Jurisdiction in that court is the
first essential, but the ultimate question is what is the effect of
the decree upon the land, and of the deed executed under it? The
supreme court of the state concedes, as we understand
Page 215 U. S. 6
its opinion, the jurisdiction in the Washington court to render
the decree. The court said:
"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 may be assailed. In the instant case, if 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
execution 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 not only from the absence of power generally
of the courts of one state over lands situate in another, but also
from the laws of Nebraska providing for the disposition of real
estate in divorce proceedings. The court said:
"Under the laws of this state, the courts have no power or
jurisdiction in a divorce proceeding except as derived from the
statute 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; Brotherton v.
14 Neb. 186; Cizek v. Cizek, supra; Aldrich v.
71 Neb. 33. In the Cizek
case, Cizek brought
an action for divorce, and his wife filed a cross-bill, and asked
for alimony. The court dismissed the husband's bill, found in favor
of the wife, and, by stipulation of the parties, set off to the
wife the homestead, and ordered her to execute to the husband a
mortgage thereon, thus endeavoring to make an equitable division of
Page 215 U. S. 7
Afterwards, in a contest 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 was absolutely
void and subject to collateral attack, for the reason that no
jurisdiction was given to the district court in a divorce
proceeding to award the husband's real estate to the wife in fee as
alimony. The courts of this state, in divorce proceedings, must
look for their authority to the statute, and so far as they attempt
to act in excess of the powers therein granted, their action is
void and subject to collateral attack. A judgment or decree of the
nature of the Washington decree, so far as affects the real estate,
if rendered by the courts of this state, would be void."
"* * * *"
"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
divested 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 judgment or decree which
Page 215 U. S. 8
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 supreme 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 jurisdiction 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 it may do through the party, it may do to give effect to
its decree respecting property, whether it goes to the entire
disposition of it or only to affect it with liens or burdens. Story
on Conflict of Laws, § 544. In French, Trustee v.
22 Wall. 250, 89 U. S. 252
this Court said that a court of equity, having jurisdiction in
has power to require a defendant
"to do or to refrain from doing anything beyond the limits of
its territorial jurisdiction which it might have required to be
done or omitted within the limits of such territory."
The extent of this power this Court has also defined.
6 Pet. 389, 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
Page 215 U. S. 9
must be considered as forming a 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."
In Watkins v.
16 Pet. 25, 41 U. S. 57
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
"A court of chancery, acting in personam,
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
See also Massie v.
6 Cranch 148, and Miller v.
2 Wall. 237, 69 U. S.
In Corbett v.
10 Wall. 464, 77 U. S. 475
the doctrine was repeated that a court of equity, acting upon the
person of the defendant, may decree a conveyance of land situated
in another jurisdiction, and even in a foreign country, and enforce
the execution of the decree by process against the defendant; but,
it was said: "Neither its decree nor any conveyance under it,
except by the party to whom the title is vested, is of any efficacy
beyond the jurisdiction of the court." This, the court declared,
was familiar law, citing Watkins v. Holmen, supra. See
also Brine v. Insurance Company, 96 U. S.
, 96 U. S. 635
Phelps v. McDonald, 99 U. S.
In Boone v.
10 Pet. 177, 35 U. S. 245
it is said that a commissioner is in no sense an agent of the
party, but is an officer of the court, and acts strictly under its
Later cases assert the same doctrine. In Carpenter v.
Strange, 141 U. S. 87
141 U. S. 105
a court of New York had declared a
Page 215 U. S. 10
deed for real estate situate in Tennessee null and void. This
Court said to concede such power would be "to attribute to that
decree the force and effect of a judgment in rem
court having no jurisdiction over the res.
explaining the power of a court of equity, said that,
"by means of its power over the person of a party, a court of
equity may, in a proper case, compel him to act in relation to
property not within its jurisdiction; its decree does not operate
directly upon the property nor affect the title, but is made
effectual through the coercion of the defendant -- as, for
instance, by directing a 'deed to be executed or cancelled by or on
behalf of the party. The court has no inherent power' by the mere
force of its decree to annul a deed or to establish a title.
Hart v. Sansom, 110 U. S. 151
, 110 U. S.
Whether the doctrine that a decree of a court rendered in
consummation of equities, or the deed of a master under it, will
not convey title, and that the deed of a party coerced by the
decree will have such effect, is illogical or inconsequent we need
not inquire, nor consider whether the other view would not more
completely fulfill the Constitution of the United States, and that
whatever may be done between the parties in one state may be
adjudged to be done by the courts of another, and that the decree
might be regarded to have the same legal effect as the act of the
party which was ordered to be done. The policy of a state would not
be violated. Besides, this Court found no impediment in the policy
of a state in the way of enforcing, under the due faith and credit
clause of the Constitution of the United States, a judgment
obtained in Missouri sued upon in Mississippi. The defense was that
the cause of action arose in Mississippi, and was one that the
courts of the state, under its laws, were forbidden to enforce. The
defense was adjudged good by the Supreme Court of Mississippi, and
its judgment was reversed by this Court. Fauntleroy v.
Lum, 210 U. S. 230
In Hart v. Sansom, supra,
it was directly recognized
that it was within the power of the state in which the land lies
Page 215 U. S. 11
provide by statute that if the defendant is not found within the
jurisdiction, or refuses to perform, performance in his behalf may
be had by a trustee appointed by the court for that purpose.
In Dull v. Blackman, 169 U. S. 243
169 U. S.
-247, while recognizing that litigation in regard to
the title of land belongs to the courts of the state where the land
is so located, it was said:
"Although, if all the parties interested in the land were
brought personally before a court of another state, its decree
would be conclusive upon them, and thus in effect determine the
But however plausibly the contrary view may be sustained, we
think that the doctrine that the court, not having jurisdiction of
cannot affect it by its decree, nor by a deed
made by a master in accordance with the decree, is firmly
established. The embarrassment which sometimes results from it has
been obviated by legislation in many states. In some states, the
decree is made to operate per se
as a source of title.
This operation is given a decree in Nebraska. In other states,
power is given to certain officers to carry the decree into effect.
Such power is given in Washington to commissioners appointed by the
court. It was in pursuance of this power that the deed in the suit
at bar was executed. But this legislation does not affect the
doctrine which we have expressed, which rests, as we have said, on
the well recognized principle that when the subject matter of a
suit in a court of equity is within another state or country, but
the parties within the jurisdiction of the court, the suit may be
maintained and remedies granted which may directly affect and
operate upon the person of the defendant, and not upon the subject
matter, although the subject matter is referred to in the decree
and the defendant is ordered to do or refrain from certain acts
toward it, and it is thus ultimately but indirectly affected by the
relief granted. In such case, the decree is not of itself legal
title, nor does it transfer the legal title. It must be executed by
the party, and obedience is compelled by proceedings in the nature
of contempt, attachment, or sequestration. On the other hand, where
the suit is
Page 215 U. S. 12
strictly local, the subject matter is specific property, and the
relief, when granted, is such that it must act directly upon the
subject matter, and not upon the person of the defendant, the
jurisdiction must be exercised in the state where the subject
matter is situated. 3 Pomeroy's Equity, §§ 1317, 1318, and
This doctrine is entirely consistent with the provision of the
Constitution of the United States, which requires a judgment in any
state to be given full faith and credit in the courts of every
other state. This provision does not extend the jurisdiction of the
courts of one state to property situated in another, but only makes
the judgment rendered conclusive on the merits of the claim or
subject matter of the suit.
"It does not carry with it into another state the efficacy of a
judgment upon property or persons, to be enforced by execution. To
give it the force of a judgment in another state, it must be made a
judgment there, and can only be executed in the latter as its laws
13 Pet. 312.
Plaintiff seems to contend for a greater efficacy for a decree
in equity affecting real property than is given to a judgment at
law for the recovery of money simply. The case of Burnley v.
24 Ohio St. 474, in a sense sustains her. The
action was brought in one of the courts of Ohio for the recovery of
the possession of certain lands. The defendant set up in defense a
conveyance of the same lands, made by a master commissioner, in
accordance with a decree of a court in Kentucky, in a suit for
specific performance of a contract concerning the lands. The
defendant in Burnley v. Stevenson
claimed title under the
master's deed. The court declared the principle that a court of
equity, having the parties before it, could enforce specific
performance of a contract for lands situate in another jurisdiction
by compelling the parties to make a conveyance of them, but said
that it did not follow that the court could "make its own decree
operate as such conveyance." And it was decided that the decree
could not have such effect, and, as it could not, it was "clear
that a deed executed
Page 215 U. S. 13
by a master, under the direction of the court," could "have no
greater effect." Watts
6 Pet. 389, and Page v. McKee,
Bush, 135, were cited, and the master's deed, the court said, "must
therefore be regarded as a nullity." But the court decided that the
"decree was in personam,
and bound the consciences of
those against whom it was rendered." It became, it was in effect
said, a record of the equities which preceded it, and of the fact
that it had become, and it was, the duty of the defendants in the
suit to convey the legal title to the plaintiff. This duty, it was
further said, could have been enforced
"by attachment as for contempt, and the fact that the conveyance
was not made in pursuance of the order does not affect the validity
of the decree insofar as it determined the equitable rights of the
parties in the land in controversy. In our judgment, the parties,
and those holding under them with notice, are still bound
The court proceeded to say that it might be admitted that the
decree would not constitute a good defense at law, but that it was
a good defense in equity, as, under the Code of Ohio, equitable as
well as legal defenses might be set up in an action for the
recovery of land, and from this and the other propositions that
were expressed concluded that, as the decree had the effect in
Kentucky of determining the equities of the parties to the land in
Ohio, the courts of the latter state "must accord to it the same
effect," in obedience to the due faith and credit clause of the
Constitution of the United States. "True," the court observed,
"the courts of this state cannot enforce the performance of that
decree, by compelling the conveyance through its process of
attachment; but, when pleaded in our courts as a cause of action,
or as a ground of defense, it must be regarded as conclusive of all
the rights and equities which were adjudicated and settled therein,
unless it be impeached for fraud. See
also Davis v. Headley,
22 N.J.Eq. 115; Brown v. Lexington
& D. R. Co.,
13 N.J.Eq.191; Dobson v. Pearce,
Kernan 156; United States Bank v. Bank of Baltimore,
Gill 415. "
Page 215 U. S. 14
It may be doubted if the cases cited by the learned court
sustain its conclusion. But we will not stop to review them, or to
trace their accordance with or their distinction from the cases
which we have cited. The latter certainly accord with the weight of
authority. There is, however, much temptation in the facts of this
case to follow the ruling of the Supreme Court of Ohio. As we have
seen, the husband of the plaintiff brought suit against her in
Washington for divorce, and, attempting to avail himself of the
laws of Washington, prayed also that the land now in controversy be
awarded to him. She appeared in the action, and, submitting to the
jurisdiction which he had invoked, made counter-charges and prayers
for relief. She established her charges, she was granted a divorce,
and the land degreed to her. He, then, to defeat the decree, and in
fraud of her rights, conveyed the land to the defendant in this
suit. This is the finding of the trial court. It is not questioned
by the supreme court, but, as the ruling of the latter court, that
the decree in Washington gave no such equities as could be
recognized in Nebraska as justifying an action to quiet title, does
not offend the Constitution of the United States, we are
constrained to affirm its judgment.
MR. JUSTICE HARLAN and MR. JUSTICE BREWER dissent.
MR. JUSTICE HOLMES, concurring specially:
I am not prepared to dissent from the judgment of the court, but
my reasons are different from those that have been stated.
The real question concerns the effect of the Washington decree.
As between the parties to it, that decree established in Washington
a personal obligation of the husband to convey to his former wife.
A personal obligation goes with the person. If the husband had made
a contract, valid by the law of Washington, to do the same thing, I
think there is no doubt that the contract would have been binding
in Nebraska. Ex parte
Page 215 U. S. 15
4 Deacon, Bankr. 27, 40; Polson v.
167 Mass. 211. So I conceive that a Washington decree
for the specific performance of such a contract would be entitled
to full faith and credit as between the parties in Nebraska. But it
does not matter to its constitutional effect what the ground of the
decree may be, whether a contract or something else. Fauntleroy
v. Lum, 210 U. S. 230
this case, it may have been that the wife contributed equally to
the accumulation of the property, and so had an equitable claim.) A
personal decree is equally within the jurisdiction of a court
having the person within its power, whatever its ground and
whatever it orders the defendant to do. Therefore I think that this
decree was entitled to full faith and credit in Nebraska.
But the Nebraska court carefully avoids saying that the decree
would not be binding between the original parties had the husband
been before the court. The ground on which it goes is that to allow
the judgment to affect the conscience of purchasers would be giving
it an effect in rem.
It treats the case as standing on the
same footing as that of an innocent purchaser. Now, if the court
saw fit to deny the effect of a judgment upon privies in title, or
if it considered the defendant an innocent purchaser, I do not see
what we have to do with its decision, however wrong. I do not see
why it is not within the power of the state to do away with equity
or with the equitable doctrine as to purchasers with notice if it
sees fit. Still less do I see how a mistake as to notice could give
us jurisdiction. If the judgment binds the defendant, it is not by
its own operation, even with the Constitution behind it, but by the
obligation imposed by equity upon a purchaser with notice. The
ground of decision below was that there was no such obligation. The
decision, even if wrong, did not deny to the Washington decree its
full effect. Bagley v. General Fire Extinguisher Co.,
212 U. S. 477
212 U. S.