Full opinion text
PETERS, P. J. Plaintiff, Idonah Slade Perkins, brought this action against defendant, Benquet Consolidated Mining Company, to recover from defendant the dividends declared by defendant on certain shares of its capital stock alleged by plaintiff to be her property. Defendant’s basic defense to this action is that, under Philippine law, which it claims controls, Eugene Arthur Perkins, husband of plaintiff, is entitled to such dividends. The trial court ruled, in accordance with plaintiff’s contentions, that the issue as to who had title to the stock, as to who was entitled to the dividends, and as to what law governed, had been settled by a final judgment of the New York courts by which it was determined, in an action between plaintiff and her husband, that plaintiff was the owner of the stock here in question and entitled to all dividends declared thereon. (Perkins v. Guaranty Trust Co. of New York, 274 N.Y. 250 [8 N.E.2d 849].) The trial court held that the New York judgment was res judicata, that defendant, who was not a party to that action, was conclusively bound thereby, and that under the full faith and credit clause the courts of this state must give effect thereto. It therefore entered judgment for plaintiff in the total sum of $412,273.88, which includes the amount of all cash dividends declared by defendant on the block of stock in question between March 31, 1930, and March 31, 1940, plus interest from the dates declared. The judgment further provided, pursuant to stipulation, that certain designated interveners, to whom plaintiff was indebted and who claimed liens upon her interest in the stock, dividends and present cause of action, should be paid by defendant sums totaling $121,359.77, to be deducted from the amount for which plaintiff was given judgment. Defendant appeals from that judgment. Defendant is a sociedad anónima of the Philippine Islands with its principal office in Manila. Such an organization has no exact counterpart in our law. It is a separate legal entity, possessing some of the characteristics of a joint stock company and some of a partnership, but most closely approximates a corporation. For the purposes of this opinion it will be considered and treated as a corporation. Summary op the Pacts The facts leading up to the present action are not substantially in dispute and are as follows: Plaintiff is the wife of Eugene Arthur Perkins, whom she married in Manila in 1914 and with whom she lived in that city until late in 1929. In that year the parties separated, and since that date have not lived together. Prior to her marriage, plaintiff had been a resident of Spokane, Washington, while Mr. Perkins had resided in New York prior to going to the Philippines in 1908. Mr. Perkins is a member of The Philippine Bar and is general counsel of defendant company. He is not a party to the present action. The stock which forms the basis of the present action was acquired after the marriage of the parties and prior to 1930. In 1930, and for years prior thereto, the books of defendant company showed plaintiff as the stockholder of record of the 24,000 shares. In November, 1934, a 200 per cent stock dividend was declared by defendant, and a 100 per cent stock dividend was declared in November, 1939. Thus, when judgment was entered in the present action in 1940, the number of shares involved was 144,000. From March 31, 1930, to March 31, 1940, dividends totaling $334,-800 were declared by defendant on this block of stock. From 1930 to 1937 defendant paid $270,425.20 of these dividends to Mr. Perkins or his transferees, taking back from Mr. Perkins and his law partner, several agreements by which they contracted to indemnify the company if it was held liable to plaintiff for such dividends. The dividends declared since 1937, totaling $64,374.80, have been impounded by the defendant. The trial court gave judgment to plaintiff for the total amount of such dividends, plus interest. As already pointed out, on January 1, 1930, and for years prior thereto, the 24,000 shares in question were registered in the name of plaintiff and were represented by seven certificates in her name. Until the dispute arose in 1930 between plaintiff and her husband all dividends on this stock were paid to plaintiff by checks payable to her account in Spokane, Washington. Early in 1930 a dispute arose between plaintiff and her husband over the right to the dividends from this stock. There is no doubt that from almost the beginning of this dispute, and prior to any litigation over the stock, the defendant company knew of the conflicting claims of the parties to these dividends. In the first half of 1930 plaintiff and her husband each wrote two letters to defendant claiming the right to the dividend that had been declared in March of 1930. Plaintiff contended that the stock was her separate property. Mr. Perkins then contended, and defendant now contends, that the stock was marital property; that under Philippine law he was the manager of all conjugal property; that he was therefore entitled to the dividends; that even if the shares were the separate property of Mrs. Perkins under Philippine law, which he contended (and defendant now contends) was controlling, cash and stock dividends belonged to the conjugal partnership, of which he was the manager. Mr. Perkins was insistent that the March, 1930, dividend check should be delivered to him. At Mr. Perkins’ request the check for this dividend was delivered by the corporation to him. The check was made out to Mrs. Perkins’ Spokane bank account so that Mr. Perkins was unable to cash it. He, therefore, demanded of Judge Hausermann, managing officer of defendant, that he be given a check he could cash. Hausermann gave Mr. Perkins a new check for such dividend made out in the name of Mrs. Perkins that could be cashed in the Philippines. Hausermann knew that the check was to be indorsed and cashed by Mr. Perkins, and so intended. On the date this first check was delivered to Mr. Perkins (May 26, 1930), he delivered to defendant an indemnity agreement by the terms of which he agreed to indemnify defendant from any or all lawful claims which Mrs. Perkins might make by reason of defendant acceding to Mr. Perkins’ demands. On the same day there was delivered to defendant a similar indemnity agreement signed by De Witt, Perkins’ law partner and co-general counsel for defendant. Prom this time until April 11, 1934, defendant paid all dividend checks on the stock to Mr. Perkins by check drawn to the order of Mrs. Perkins, intending and knowing that Mr. Perkins intended to and did cash them. During the year 1930 Mrs. Perkins served three written notices on defendant setting forth the basis of her claims, and demanding that all dividends, those declared' and those to be declared, be delivered to her. Defendant refused to accede to these demands. On June 30, 1930, Mrs. Perkins commenced an action against her husband (Civ. No. 37517) in the Philippine courts for a judicial separation, liquidation of the conjugal partnership, and other relief. In her complaint she specifically alleged that the 24,000 shares were property of the conjugal partnership. By his answer Mr. Perkins likewise alleged that the shares were conjugal property, and by cross-complaint he averred that Mrs. Perkins was withholding the shares, and he prayed that she be compelled to account to him for such property. During July, 1930, Mrs. Perkins was induced by her husband to discharge her attorney and to withdraw her action against her husband. To this end she signed, on July 25, 1930, certain documents. Among them was a petition in action No. 37517 requesting that she be permitted to withdraw her complaint and consent to judgment being entered in favor of her husband on his cross-complaint, an assignment of the shares to Mr. Perkins, and a letter to defendant directing the transfer of the shares to Mr. Perkins upon production of the outstanding certificates. Mr. Perkins immediately presented these documents to the defendant and demanded a transfer of the shares, but defendant refused to make the transfer without surrender of the certificates. The certificates had been sent by Mrs. Perkins to a New York trust company for safekeeping. On August 4, 1930, judgment was entered in Civ. No. 37517 in accordance with the prayer of Mr. Perkins’ cross-complaint. On the same day Mr. Perkins instituted contempt proceedings against his wife for an accounting, she having refused to deliver the certificates to him. On September 29, 1930, Mrs. Perkins filed her answer in the contempt proceedings alleging that the stock certificates were not conjugal property, that her husband was a citizen of New York, that the stock was her separate property, and that under Philippine law the New York law was applicable to such personal property. While the contempt proceeding was pending, and on January 15, 1931, Mrs. Perkins filed in Civ. No. 37517 a motion to vacate the judgment of August 4, 1930, on the ground that it had been taken by her mistake, inadvertence, surprise and excusable neglect, and had been induced by the fraud of her husband. This proceeding is authorized by a Philippine statute practically identical with section 473 of the California Code of Civil Procedure. On March 6, 1931, the Philippine court denied the petition, and on March 30, 1931, Mrs. Perkins was adjudged guilty of contempt and ordered imprisoned until she complied with the order contained in the judgment of August 4, 1930. Thereafter, Mrs. Perkins appealed to the Supreme Court of the Philippines from the decree refusing to set aside the judgment and from the decree adjudging her in contempt. Both decrees were affirmed in a single decision by a divided court on September 12, 1932. (Perkins v. Perkins, 57 P.I. 205.) In the meantime, plaintiff, on December 19, 1930, informed defendant by letter of her claim that the assignment had been procured by fraud of her husband, asserted her claim that the dividends and stock were her separate property, and demanded that declared and to be declared dividends be delivered to her. Defendant, by letter, refused to comply with this request. In May, 1933, Civ. No. 37517 was returned to the trial court. Plaintiff again refused to deliver the certificates to her husband, and was committed to prison until she should obey the court’s orders. Plaintiff immediately applied for release on habeas corpus, and was admitted to bail. The Supreme Court of the Philippines thereafter denied her application. (Perkins v. Director of Prisons, 58 P.I. 271.) Mrs. Perkins presented a motion for reconsideration, and, while this motion was pending, left the Philippines and came to the United States. Mr. Perkins followed her to this country. In August of 1933 he brought an action against the Guaranty Trust Company, depositary of the certificates, in the State of New York. In this action, in his first cause of action, he pleaded and relied upon the various Philippine judgments heretofore mentioned. In a second cause of action, based upon the theory of a conversion, he pleaded his title and ownership of the stock without reliance on the Philippine decrees. The trust company impleaded Mrs. Perkins. By answer and cross-complaint Mrs. Perkins put in issue all the allegations of the complaint, challenged the scope, validity and effect of the Philippine decrees, alleged her ownership of the stock, prayed for all dividends declared since 1930, alleged the Philippine judgments had been secured by fraud and mistake, challenged the jurisdiction of the Philippine courts, alleged that the stock was her separate property and that the rights of the parties therein were governed by the New York law. Mrs. Perkins attempted to make defendant company a party to this New York action but upon a special appearance of defendant the attempted service was vacated. In that proceeding defendant, by affidavit, disclaimed any interest in the dividends in question. While the New York action was pending, and after the defendant company had knowledge of that action and of Mrs. Perkins’ claims made therein, Mr. Perkins, on March 14, 1934, petitioned the Manila court for an order requiring defendant company to show cause why it should not be compelled to transfer plaintiff’s certificates on its records to him. Mrs. Perkins was not a party to these proceedings, nor was she informed of them, although the trial court found that between March 21, 1934, and April 9, 1934, a Mrs. Sherman, resident of Manila, held a special power of attorney from plaintiff, and that on April 9, 1934 (four days after the order was made), defendant informed Mrs. Sherman by letter that the order had been made. The court also found that mailing time between Manila and New York was thirty days. Defandant demurred to the petition of March 14, 1934, and raised the jurisdictional point that Mrs. Perkins was not a party. Neither Mr. Perkins nor defendant company informed the Philippine court of the pending New York action in which the question of title to the stock and the validity of the Philippine decrees was in issue. The Philippine court, on April 5, 1934, ordered defendant on or before April 11, 1934, to cancel on its stock records the certificates in plaintiff’s name and to issue in Mr. Perkins’ name new certificates representing the shares in question. The defendant company, although Hausermann was of the belief the order was void, did not appeal, but complied with the order on April 11, 1934. Thereafter, Mr. Perkins from time to time transferred some of the shares to third parties. After the transfer of April 11, 1934, and until May 28, 1937 (when defendant learned of the decision of the New York Court of Appeals), dividends were paid by defendant's checks drawn and delivered to the order of Mr. Perkins and his transferees. Since May 28, 1937, no further transfers have been made by Mr. Perkins, and all dividends accruing on the stock still in his name have been impounded. The New York case proceeded to trial. The trial court decided the case in favor of Mr. Perkins. The New York Court of Appeals rendered its judgment (one judge dissenting without opinion) on May 25, 1937, reversing the trial court and directing the entry of judgment for Mrs. Perkins. An abortive appeal was taken to the Supreme Court of United States, and thereafter dismissed. Thereafter, in February, 1938, a judgment was entered by the trial court pursuant to the direction of the Court of Appeals. Nothing has ever been paid on that judgment. The instant case was commenced in January, 1938, in San Francisco. Mr. Perkins is not a party. Neither plaintiff nor defendant is a resident of California. Jurisdiction was secured over defendant by an attachment of defendant’s funds in a San Francisco bank. The original complaint alleges that plaintiff owns the shares in question and prays for all dividends declared thereon from 1930 through 1937. On January 16, 1939, plaintiff, over defendant’s objections, was permitted to file a supplemental complaint for dividends declared in 1938. A second supplemental complaint was permitted to be filed during the trial for the 1939 dividends, and later, after trial, the case was reopened to permit plaintiff to file a third supplemental complaint for the dividend declared March 30, 1940. The answer of defendant sets forth several defenses, most of them predicated on the contention that the dividends were payable to Mr. Perkins. It is important to note that defendant has never claimed, and does not now claim, any title to the stock, nor does it seek to show that anyone other than Mr. Perkins is entitled to the stock or dividends. At the trial of the present action plaintiff offered no evidence of her title to the dividends except the judgment roll of the New York action. Defendant’s objections to the introduction óf this record were overruled and the New York record was admitted as competent and conclusive evidence of plaintiff’s title. Defendant made an offer to prove at the trial the allegations of its answer that the shares and the dividends belonged to the conjugal partnership of plaintiff and her husband, and that, therefore, the dividends were payable to plaintiff’s husband and his transferees. Defendant also offered to prove that, under the facts, Philippine law was applicable. The trial court sustained plaintiff’s objections to such offers and ruled that the New York judgment and every finding upon which it rests was conclusive against defendant with respect to everything therein adjudicated, i.e., res judicata in the same way as if defendant had -been a party to the New York action. As to other defenses raised in the answer, including the defense that Mrs. Perkins was estopped because the defen dan t had paid the dividends to Mr. Perkins in good faith reliance upon the Philippine adjudications, the trial court permitted the introduction of evidence, and on such evidence made its findings in favor of Mrs. Perkins. On the issue of estoppel the court found that Avhen every dividend was paid to Mr. Perkins or his transferees defendant knew that Mrs. Perkins “was claiming to own the said shares of stock upon which the dividend was issued, as her separate property, and that she was claiming that her husband had no interest therein or right of control thereover”; that in paying the dividends to Mr. Perkins defendant “was not induced to do so by and did not rely upon any pleading filed by plaintiff” in any Philippine court. The evidence shows the facts concerning the rendition of the Philippine adjudications, and shows, further, that when every dividend was paid to Mr. Perkins or his transferees the company knew there was' litigation pending challenging the validity of the Philippine adjudications, that Mrs. Perkins was claiming that such adjudications were void, and that she was the owner of the stock. In July of 1938, some six months after the present action Avas filed, Mr. Perkins commenced an action in the Philippine courts (Civ. No. 53317) against defendant to recover the impounded dividends and to establish his exclusive right to control and dispose of the shares then standing in his name. On motion of defendant corporation Mrs. Perkins Avas made a party to that action and summoned by publication. After her objections had been overruled, she appeared and answered in that case setting up by cross-complaint all her claims against her husband and against this defendant, and pleading the New York judgment. On November 24, 1939, the defendant filed in the instant case its motion to dismiss the present action, or, in the alternative, that the trial be continued until the issues should be adjudicated in the Philippine courts. This motion was denied ■with leave to renew. On March 9, 1940, defendant again moved for a continuance and this motion was also denied. It was renewed and again denied at the close of the trial. Main Contentions op Appellant On this appeal the basic contention of defendant is that 4he judgment of the New York court is not binding on it because, so it is urged, it was not a party or privy to a party to that action. The corporation further contends that the New York judgment failed to give full faith and credit to prior judicial proceedings in the Philippine courts, as required by federal statute. (28 U.S.C.A., p. 456, § 687.) The Philippine litigation, so it is urged, constituted a conclusive determination, binding on Mr. and Mrs. Perkins and on the corporation, that their rights were governed by Philippine law, under which the stock was property of the conjugal partnership, and Mr. Perkins was entitled to dividends. By reason of the fact that the New York court failed, in defendant’s analysis, to give full faith and credit to the Philippine proceedings, it contends that the obligation of the courts of this state is to recognize the Philippine proceedings, rather than the New York judgment. Defendant further contends that the doctrine of election of remedies precludes plaintiff from recovering judgment against the corporation for dividends paid to her husband, for which she has taken judgment against him in New York, even though the fact is, that the judgment is unsatisfied. It is also contended that the husband is a necessary party to the present suit, and that a portion of the recovery sought is barred by the statute of limitations. Other contentions are made that will be hereafter noted. Analysis op New York Decision Before discussing the basic question as to whether or not the New York judgment is res judicata in the present action, consideration should first be given to noting just what that court decided. As already pointed out, Mr. Perkins’ amended complaint in the New York action set up two causes of action. The first claimed the right to the stock by virtue of the Philippine decrees; the second is in the form of an action for conversion, and, to use the words of the New York Court of Appeals (8 N.E.2d at p. 850), “opens up the question of title in and ownership of the stock de novo without reliance upon judicial proceedings in the Philippines. ’ ’ By his prayer Mr. Perkins asked that he be declared the true and lawful owner of the certificates, and that the certificates be delivered to him. Mrs. Perkins, so far as is pertinent here, denied all the material allegations of the complaint, and, in addition, urged that the Philippine judgment was obtained by fraud and mistake; that it was not based upon any adjudication on the merits; that the Philippine court was without jurisdiction to make the decree of August 4, 1930; and that the order made on her motion to vacate that decree was discretionary and interlocutory only. She also alleged that she and her husband at all times since their marriage have been citizens of New York; that she is the owner of the stock; that the assignment executed by her on July 25, 1930, was void, as a matter of law, or if not void, was voidable for the fraud and misrepresentation of her husband. Among other things, she prayed that Mr. Perkins’ complaint be dismissed; that the assignment be declared void, and that Mr. Perkins account to her for all dividends received by him. Mr. Perkins, by way of reply, put in issue all new matter set up in the answer, and again pleaded the Philippine proceedings as final adjudications. Thus, the questions as to the effect of the Philippine adjudications, as to who was owner of the stock, as to what law governed, and who was entitled to the dividends, were directly placed in issue. The New York Court of Appeals first pointed out that the “character, quality, and extent of the ownership of, control over, and right to possession of the certificates representing the stock depends upon whether the laws of the Philippine Islands or the laws of the State of New York govern the property rights of Perkins and his wife ...” (8 N.E.2d at p. 851.) The court first considers that point without reference to the Philippine decrees. After reviewing the facts, it is held that, under federal and Philippine statutes, Mr. and Mrs. Perkins retained their American citizenship; that they both were citizens of the State of New York, and neither became a citizen of the Philippines; that under article 10 of the Civil Code of Spain, in force in the Philippines, personal property is subject “to the laws of the nation of the owner thereof”; that the words “laws of the nation of the owner” thereof as used in article 10 “refers to and embraces the nationality of the owner and has been so construed by the highest court of the Philippine Islands. [Citing cases.]” (8 N.E.2d at p. 852.) Predicated upon this premise, it was held that the evidence conclusively demonstrates that Mr. Perkins retained not only his American nationality but also his New York domicile, and that under article 10 the personal property rights of the parties were to be governed by New York law. The court then analyzes the evidence relating to the nature of the property rights of the parties. It finds that without conflict the evidence shows that Mrs. Perkins purchased 23,776 of the 24,000 shares with her separate funds, and that the balance of 224 shares were acquired by gift from her husband. The court then points out that the certificates were in Mrs. Perkins’ name until April 11,1934, when the Philippine court made its order directing the company to transfer the shares to the name of Mr. Perkins. The court noted that no notice was given to Mrs. Perkins nor did she appear in that proceeding. The court then holds: “The [Philippine] court was without jurisdiction to make the order and it was void and of no effect and in no manner affected her legal rights in the stock.” (8 N.E.2d p. 853.) After thus disposing of the April, 1934, order, the court holds that the domicile of the wife follows that of her husband, and that under the uncontradicted evidence, as a matter of law, the stock was the separate property of Mrs. Perkins. This conclusion was reached on the merits without reference to any prior Philippine adjudication, except that of April, 1934. After thus disposing of the basic questions of title and ownership of the stock on their merits, the court then discusses the contention of Mr. Perkins and the finding of the trial court “that all questions as to title, ownership, and right to possession of the stock and certificates are res adjudícala [sic] here by virtue of proceedings in the Philippine courts in which both plaintiff and his wife were parties.” (8 N.E.2d p. 854.) The court discusses in detail each of the Philippine proceedings heretofore mentioned. It points out that in the action commenced by Mrs. Perkins she alleged that the stock was conjugal property, but points out that this allegation “was based upon misapprehension and upon erroneous advice by her husband as to the applicable law” (p. 854), which erroneous advice, both under Philippine and New York law “constituted constructive fraud as a matter of law.” (8 N.E.2d at p. 854.) The court analyzes the pleadings in that action and points out that Mr. Perkins in that action “did not assert any claim or demand any adjudication that he had title to and was the sole owner of the property in question.” (8 N.E.2d at p. 854.) Attention is then given to the so-called “consent” signed by Mrs. Perkins, by which she withdrew her petition and consented to a decree in accordance with the prayer of her husband’s cross-complaint. The evidence shows, said the court, that this document was signed after Mr. Perkins "required her to discharge the attorney who was representing her in that action and had forbidden her legal advice.” (8 N.E.2d at p. 854.) All the documents signed by her that day were "executed and delivered upon the express representation [by Mr. Perkins] . . . that doing so would take her out of court”; that Mr. Perkins notwithstanding the representation "proceeded to file the consent in the Philippine court” and the decree of August 4, 1930, was entered (8 N.E.2d at p. 854.) It was also pointed out that she had no right of appeal from that decree because "an appeal would not lie from the consent judgment.” (8 N.E.2d at p. 855.) The court then holds: "By the filing of the complaint and answer there can be no doubt but that the Philippine court had jurisdiction of the parties and of the issue tendered by the pleadings. Had that issue been left in the case, any judgment thereon, after hearing and determination on the merits, would be conclusive as to all matters actually in issue and actually litigated. . . . But neither plaintiff nor defendant presented to the Philippine court the issue involved here, namely, whether the property rights of the parties were governed by the laws of the State of New York or by the Civil Code of Spain, and no such issue was or could be litigated or determined upon the merits in the Philippine court. Plaintiff’s consent was, in fact, a voluntary nonsuit as to her cause of action. The decree, in express terms, authorized her to withdraw her complaint. Thus there was removed from the consideration of the court any question of the legal rights of the parties in so far as they were raised by the complaint; the stipulation was that the claim of defendant to the right to possess and administer the property might be determined in his favor without litigation. The scope of the jurisdiction of the Philippine court was limited to the precise matters presented by the consent, and the judgment or order does not constitute an adjudication upon the questions involved in the case at bar and is no estoppel to its maintenance.” After thus disposing of the consent decree the court then discusses the Philippine contempt proceedings, and the motion for relief from the consent judgment. The various pleadings are analyzed at length as are the opinions of the Supreme Court of the Philippines. The court concludes its discussion of these proceedings as follows (8 N.E.2d at p. 856): "It is clear from the certified record of the proceedings in the Philippine courts upon both motions that the granting o£ plaintiff’s motion to punish his wife for contempt rested solely upon the technical but erroneous ground that an appeal from the judgment of August 4, 1930, was available which was not taken and that the denial of the wife’s motion to vacate that judgment under section 113 of the Philippine Code of Civil Procedure was solely on the ground of laches and in the exercise of discretion. Under such circumstances, the courts of New York are not concluded by the decisions of the Philippine courts (Everett v. Everett, 180 N.Y. 452 [73 N.E. 231] ; Bannon v. Bannon, 270 N.Y. 484, 491 [1 N.E.2d 975, 105 A.L.R. 1401]), for the purpose of the motion was to open the default and allow her to plead upon and litigate the merits. Neither decision was a bar to an action ih equity in the Philippine Islands to set aside the decree for fraud (Melgar and Noel v. Delgado and Alquizola, 54 P.I. 668; Anuran v. Aquino and Ortiz, supra), nor does it bar such an action in the courts of New York State or estop Mrs. Perkins from questioning the validity of the judgment of August 4, 1930, on the merits on any ground available (Hunt v. Hunt, 72 N.Y. 217, 225 [28 Am.Rep. 129]; Foote v. Lathrop, 41 N.Y. 358; Everett v. Everett, supra).” The court then holds that the assignment executed by Mrs. Perkins both under Philippine and New York law was void. The court concludes its discussion of this phase of the case as follows (8 N.E.2d at p. 857) : “The uneontradieted testimony required the trial court to declare the assignment and the consent void and to hold that the judgment of the Philippine court was a nullity because of the fraud, imposition, duress, and deceit practiced by Perkins on his wife. The findings of the trial court are to the effect that both Perkins and his wife believed that the Philippine law governed the property rights of husband and wife and that Perkins so advised his wife. At" the time of the execution of the assignment and consent, Perkins had compelled his wife to discharge the attorney who had represented her in the action in which the decree of August 4, 1930, was entered, and had declined to permit her to consult with an attorney, although she had requested permission so to do. A number of legal documents, including the consent and the assignment, were placed before her in the presence of several witnesses, some of whom declined upon her request to give her any advice and all of whom declared in affidavits used at the trial that Perkins then said to his wife that the signing of the papers would get her out of court. The evidence is uncontroverted that Perkins forthwith used the consent and other papers to bar Mrs. Perkins from her legal rights through court proceedings. The conclusion is inevitable that she executed the papers under mistake, misapprehension, duress, and fraud.” The court then reversed the trial court with directions to make findings and to enter a decree “that the assignment dated July 25, 1930, is null and void . . ., that Idonah Slade Perkins is the absolute owner of the stock in question together with all dividends thereon,” that the trust company “deliver the certificates” to Mrs. Perkins, “and that the plaintiff [Mr. Perkins] account for and pay over to her all dividends and increase received by him on account of the 24,000 shares of stock and proceed with accounting therefor.” (8 N.E.2d at p. 858.) Such a decree was subsequently entered pursuant to such directions. It will thus be seen that in New York Mr. Perkins, in a forum of his own choosing, litigated the exact questions that defendant corporation seeks to litigate here. Every issue of fact and law that defendant corporation sought to raise in the trial court, except those later discussed, was litigated and passed upon by the New York Court of Appeals. The basic question now presented is whether defendant corporation should now be permitted to litigate those identical issues in California, or whether it is conclusively bound by the New York judgment under the doctrine of res judicata. It should again be emphasized that defendant does not claim title in itself nor does it set up title in any third person. It claims the right to prove that the New York judgment was wrong and that in law and fact Mr. Perkins is entitled to the dividends on the stock—the very issue decided adversely to Mr. Perkins by the New York judgment. We turn then to a discussion of the question as to whether the doctrine of res judicata is applicable to the facts of the instant case. As already pointed out, the present action was brought to recover dividends alleged to have been wrongfully paid to Mr. Perkins and for dividends impounded by defendant. For purposes of convenience, we will discuss the applicability of the doctrine of res judicata to the paid and impounded dividends separately, although, as will readily appear, some of the discussion on each point separately is applicable to both classes of dividends. Applicability op the doctrine op res judicata to the Impounded Dividends It seems quite clear to us that as to the impounded divi- . dends the corporation has no interest in this litigation separate from the interest of Mr. and Mrs. Perkins. It claims no interest in the impounded dividends and sets up no interest of a third person. It simply claims that the dividends rightfully belong to Mr. Perkins, although, as between Mr. and Mrs. Perkins, it has finally been adjudicated that they belong to Mrs. Perkins. There are only two sides to this dispute over title to this stock, those of Mr. and Mrs. Perkins. The corporation’s only interest is that it not be compelled to pay such dividends twice. As to such dividends, it is a mere stakeholder, a specialized form of bailee. If the New York judgment is binding on Mr. Perkins, if in an action brought by Mr. Perkins against the defendant for such dividends it can plead the New York judgment, if other jurisdictions including the Philippines would be compelled by the constitutional and statutory full faith and credit clauses to give effect to the New York judgment, the company is fully protected and should not be permitted to relitigate an issue which only involves Mr. and Mrs. Perkins, and which has already been passed on in New York. Inasmuch as it is our view that all these points must be decided in favor of Mrs. Perkins, it is our conclusion that, as to the impounded dividends, the New York judgment is clearly res judicata and binds defendant corporation although it was not a party to that action. This portion of the opinion assumes that the New York judgment is not subject to attack in this state on the ground, urged by defendant, that the New York court failed to give full faith and credit to the Philippine proceedings. That point will be considered hereafter. As already pointed out, in the New York action between Mr. and Mrs. Perkins it has been determined that Mrs. Perkins owns the stock and is entitled to the dividends thereon. It is well 'settled that a corporation is not a necessary party to an action between rival claimants to shares of its stock. (Estate of Thomas, 147 Cal. 236 [81 P. 539] ; see, also, eases collected 6A Cal.Jur., p. 360, at p. 362, § 196.) Once the competing stockholders have litigated the question of title to a final conclusion, payment by the corporation to the successful party in such an action must be a defense in an action against the corporation by the other party. (Bernhard v. Bank of Amer ica, 19 Cal.2d 807 [122 P.2d 892].) Any other rule would lead to absurdities. Should the corporation be permitted in the present action to relitigate the title to the stock as between Mr. and Mrs. Perkins, insofar as the action involves its liability for impounded dividends, and should it obtain a decision that it is not liable to Mrs. Perkins because Mr. Perkins is the owner, it would follow that in a suit brought by Mr. Perkins for the impounded dividends the corporation would be required to pay them to him. Otherwise, it would escape liability altogether. Mr. Perkins’ obligation, if he recovered the dividends, would be to turn them over to his wife, since as between the two of them it has been held in the New York case that she is entitled to them. Certainly, the company’s interest not to be held liable twice for the dividends does not mean that it should not be held liable to one of the parties. This analysis demonstrates the logic of the rule that will compel the defendant, so far as the impounded dividends are concerned, as to which the corporation’s only interest is that it should not be held twice to be bound by a judgment which binds Mr. and Mrs. Perkins. Payment to Mrs. Perkins in reliance on a valid judgment in her favor against Mr. Perkins must be a good defense in an action by Mr. Perkins against the corporation. It may be that a corporation in the position of defendant herein does not fit into definitions commonly given as to who is “privy” to a judgment, so as to be bound by it although not a party. Where a situation arises which so obviously calls for application of the doctrine of res judicata as does the present case, insofar as it concerns impounded dividends, definitions of “privies” and “privity” drawn from other situations do not constitute an obstacle to reaching a sound result. In 1 Freeman on Judgments (5th ed.), page 893, section 409, is the following pertinent observation: “The rule limiting the effect of a judgment to parties and their privies is not to be taken in an absolutely literal sense nor is it without important qualifications and exceptions. “ ‘Neither the benefit of judgments on the one side, nor the obligations on the other, are limited exclusively to parties and their privies.’ ‘The question of who is concluded by a judgment has been obscured by the use of the words “privity” and “privies,” which in their precise technical meaning in law are scarcely determinative always of who is and who is not bound by a judgment. ’ ’ ’ Defendant itself cites situations well recognized in the law where the relationship between the party sued in the first action and the party sued in the second is such that the judgment in the first action is res judicata, and where, as here, the party sued in the second has no independent interest from that of the party sued in the first action. Thus, a landlord who defends through his tenant is conclusively estopped by the judgment (Valentine v. Mahoney, 37 Cal. 389); agents and servants are usually estopped by judgments against the principal or master (Satterlee v. Bliss, 36 Cal. 489) ; and a bailee by judgment against the bailor (Hughes v. United Pipe Lines, 119 N.Y. 423 [23 N.E. 1042].) The same reasoning applies to a stakeholder who is holding a fund as a disinterested party awaiting a final determination as to who, as between two disputing claimants, is entitled to the fund. As to such fund the third party, the corporation here, is a specialized form of bailee. Every principle of reason, fairness, justice and equity compels the conclusion that it should be bound by a final judgment between the two disputing claimants. Both parties to the present appeal purport to find support for their respective contentions concerning the applicability of the doctrine of res judicata in the recent Supreme Court case of Bernhard, v. Bank of America, 19 Cal.2d 807 [122 P.2d 892]. There is nothing said in that case which is conclusive either way on the issue here presented, but the holding favors the conclusion we have reached on this issue. In that case there was a dispute between claimants A and B as to the ownership of a bank account. The bank had paid the deposit to A. After the payment had been made to A, it was held in a proceeding between A and B, to which the bank was not a party, that A was the owner of the deposit. Subsequently, an action was brought against the bank on behalf of B. It was held that the bank could rely upon the decision in the prior action to which it was not a party as res judicata on the question of ownership of the deposit, that is, that such decree was a valid defense to the action brought by B. That holding favors the contentions of plaintiff. It means that if the defendant corporation pays Mrs. Perkins the impounded dividends in reliance on the New York judgment, it may thereafter properly urge that that judgment is res judicata in its favor in any action brought by Mr. Perkins. It is true that in the Bernhard ease the bank used the former judgment as a defense while in the instant case the plaintiff, Mrs. Perkins, seeks to use the New York judgment against the corporation. There is language in the case which indicates that the court assumed that the judgment could not have been used against the bank. In this connection the court declared that one is not bound by a judgment unless he was a party or in privity with a party. But those declarations are not in conflict with our holding that, so far as the impounded dividends are concerned, the corporation is bound by the New York judgment. As already pointed out, the corporation, although not a privy under the usual definition, does bear such a relation to the New York action as to be bound thereby. In the present case, insofar as the impounded dividends are concerned, it is immaterial to the defendant corporation whether Mr. or Mrs. Perkins receives them, its only interest being that it shall not be held twice. The corporation is protected from double liability by the law as declared in the Bernhard case, that is, in a suit by Mr. Perkins to recover impounded dividends paid to Mrs. Perkins the corporation can rely on the New York or California judgments as res judicata of the ownership of the stock in Mrs. Perkins, from which ownership arises the right to dividends. This analysis compels the rejection of defendant’s further contention that it should have been permitted to prove that the New York judgment in favor of Mrs. Perkins was based on her perjured testimony. Perjury constitutes intrinsic and not extrinsic fraud. (See cases collected 15 Cal.Jur., p. 18, § 124.) Defendant concedes that the parties to an action may not collaterally attack the judgment for perjury, but contends that the rule is otherwise where the judgment is invoked against one not a party. Since defendant is a mere stakeholder as to the impounded dividends, without legal interest in whether they shall be awarded to Mr. Perkins or Mrs. Perkins, his right to attack the judgment, insofar as it controls the right to impounded dividends, can be no greater than Perkins’ right. So far as the paid dividends are concerned, defendant is sufficiently connected with the controversy to be bound by the same rule applicable to parties. Defendant next contends that, even though the New York judgment would be binding upon defendant corporation as to the disposition of impounded dividends if conclusive as between Mr. and Mrs. Perkins, the particular judgment should not and will not be recognized in this state, or elsewhere, because it failed to give full faith and credit to the prior Philippine adjudications. Predicated on this basic premise, defendant contends that payment in reliance on the New York judgment will not be a defense to it if sued by Mr. Perkins, in the Philippines or elsewhere. Stated another way, defendant contends that this court should recognize the Philippine proceedings, rather than the New York judgment, because the New York courts, contrary to the mandate of federal legislation, failed to give due recognition to the prior Philippine proceedings. This contention applies to the paid dividends as well as to the impounded dividends. The effect which one state shall give to the judgments of another state within the United States is governed by the full faith and credit clause of the federal Constitution and legislation enacted pursuant therto. (U. S. Const., article IV, § 1.) The obligation imposed on a state court to recognize judicial proceedings in the Philippine Islands is referable to a federal statute first passed in 1804. It provides that the authenticated records and judicial proceedings of any state, territory, or of any country subject to the jurisdiction of the United States 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. (28 U.S.C.A., p. 456, § 687.) The Philippine Islands, at the time of the judicial proceedings which preceded the New York litigation, if not a territory, were a “country subject to the jurisdiction of the United States.” The authority to enact the above provision existed by virtue of the constitutional power of Congress to regulate “the Territory or other Property belonging to the United States” (U. S. Const., art. IV, § 3), coupled with power under the Constitution to establish federal courts. Courts established in such territory under law of Congress are federal courts, to the decisions of which Congress may require the states to give full faith and credit. (Alaska Packers Assn. v. Industrial Acc. Com., 294 U.S. 532 [55 S.Ct. 518, 79 L.Ed. 1044]; Atchison, Topeka & Santa Fe Ry. v. Sowers, 213 U.S. 55 [29 S.Ct. 397, 53 L.Ed. 695] ; Embry v. Palmer, 107 U.S. 3 [2 S.Ct. 25, 27 L.Ed. 846]; 12 Am.Jur., p. 381, § 706.) It is well settled that a state is not required to recognize the judgment of another state, or of a territory or country subject to the jurisdiction of the United States, where the judgment was rendered by a court without jurisdiction, or where it has been obtained by extrinsic fraud. (See cases collected 15 Cal.Jur., pp. 240-248, §§ 246-249; 31 Am.Jur., p. 151, § 541, p. 156, § 549; cases cited infra, this paragraph.) The rule that it always may be shown that the judgment of the other state, territory, or country subject to the jurisdiction of the United States is in excess of jurisdiction or affected with fraud, is, however, subject to the limitation that if the court of the state which rendered the judgment has expressly litigated the jurisdictional questions or the matter of fraud, that determination becomes res judicata on those points and is itself protected by the full faith and credit clause. The jurisdictional and fraud questions cannot be relitigated a second time in another state. (Davis v. Davis, 305 U.S. 32 [59 S.Ct. 3, 83 L.Ed. 26, 118 A.L.R. 1518, with note] ; notes on this case, 52 Harv.L.Rev. 683; 39 Columb.L.Rev. 274; Stoll v. Gottlieb, 305 U.S. 165 [59 S.Ct. 134, 83 L.Ed. 104] ; Chamblin v. Chamblin, 362 Ill. 588 [1 N.E.2d 73, 104 A.L.R. 1183, 1187, with note] ; Hall v. Wilder Mfg. Co., 316 Mo. 812 [293 S.W. 760, 52 A.L.R. 723, with note] ; Harju v. Anderson, 133 Wash. 506 [234 P. 15, 44 A.L.R. 450, 457, with note] ; Corliss v. Davidson & Case Lumber Co., 152 Kan. 327 [103 P.2d 781] ; Schaeffer v. Schaeffer, 128 Conn. 628 [25 A.2d 243]; Chicago Life Ins. Co. v. Cherry, 244 U.S. 25 [37 S.Ct. 492, 61 L.Ed. 966] ; 31 Am.Jur., p. 163, § 554.) In Davis v. Davis, supra, the petitioner moved in the District of Columbia to set aside or modify a decree of divorce a mensa et thoro granted to him in the District of Columbia court on the ground that subsequently he had obtained an absolute divorce in Virginia. The District of Columbia court refused to recognize the Virginia decree on the ground that the Virginia court did not have jurisdiction because the husband was not a bona fide resident of Virginia for the required time. In reversing the judgment of the District of Columbia court, the Supreme Court of the United States held that since the husband’s residence had been made an issue by the wife in the Virginia action and actually litigated, the decision of the Virginia court that it had jurisdiction was conclusive, and the District of Columbia court was bound to give effect to it. The same rule has been applied where the determination of jurisdiction of the court to render judgment is had in a second state, rather than in the state which rendered the original judgment, and its validity is attacked in a third state. (Degge v. Baxter, Trustee, 69 Colo. 122 [169 P. 580]; Bidwell v. Bidwell, 139 N.C. 402 [52 S.E. 55, 111 Am.St.Rep. 797, 2 L.R.A. N.S. 324].) In the New York action Mr. Perkins pleaded that the Philippine proceedings were res judicata as to his right to the stock and dividends. The decree of the trial court was in his favor, but the Court of Appeals reversed the judgment with directions to enter judgment for Mrs. Perkins. (Perkins v. Guaranty Trust Co. of New York, 274 NY. 250 [8 N.E.2d 849].) The court held, as to the Philippine judgments and orders, that they did not determine issues raised in the New York suit, that they were void for want of jurisdiction, and that all of them, including those determining there had been no fraud, had been procured by the fraud of Mr. Perkins, or through mistake. It thus appears that the New York court acted upon recognized grounds in refusing to accept the Philippine proceedings as binding. Defendant’s contention that the Philippine courts in fact had already considered the same grounds of want of jurisdiction and fraud, and that, under the authorities cited above, the New York court violated the statutory full faith and credit clause in relitigating these issues is without merit. The New York court held that that very adjudication had been secured by fraud and mistake. Moreover, even if it be conceded arguendo that appellant is correct in this contention, nevertheless we are of the view that the courts of this state must recognize the New York judgment, rather than the Philippine proceedings. It is the general rule that as between conflicting judgments the last in time is controlling. (See cases collected 15 Cal.Jur., p. 57, § 143.) The full faith and credit clause does not call for abrogating this general principle. If the New York court failed to give the Philippine proceedings due recognition, the remedy of Mr. Perkins was to seek a review in the Supreme Court of the United States to compel the court to give full faith and credit to such proceedings. He started such review proceedings, but did not complete them. Whether the Philippine proceedings were entitled to recognition under the statutory full faith and credit clause, was a matter expressly adjudicated in the New York action. The New York court’s decision on that issue, as on other issues, was res judicata and is entitled to full faith and credit in the courts of this state. The decision of the Supreme Court of the United States in Treinies v. Sunshine Mining Co., 308 U.S. 66 [60 S.Ct. 44, 84 L.Ed. 85] impels this' conclusion. In that case there were conflicting decisions of the State of Washington and the State of Idaho as to the ownership of certain stock. In the Washington proceedings the jurisdiction of the Washington court had been expressly adjudicated and upheld. Nevertheless, the Idaho court subsequently held the Washington judgment void for want of jurisdiction. The corporation which had issued the stock thereafter brought an interpleader action in a federal court. Federal courts must recognize state court judgments under the statutory full faith and credit clause. (See cases collected 15 Cal.Jur., p. 248, § 250; 28 U.S.C.A., p. 502, par. 119, and pocket supp., p. 94, par. 119.) The Supreme Court held that the federal court was bound to recognize the Idaho decision holding the Washington judgment void for want of jurisdiction of the subject matter, that “the principles of res judicata apply to questions of jurisdiction as well as to other issues, as well to jurisdiction of the subject matter as of the parties.” (p. 78.) In its statement that the petitioner had not sought a review in the Supreme Court of the United States from the final decree of the Idaho court, the decision indicated that the remedy, if the Idaho court had failed to give full faith and credit to the Washington court’s decision, was by such application for review, in default of which the Idaho decision was res judicata. (See notes on this decision, 3 Harv.L.Rev. 657; 40 Columb.L.Rev. 523.) Appellant contends that if the present action had been brought in a Philippine court, it would have recognized the Philippine proceedings, rather than those in New York. The question before us is not what the Philippine courts would have done, but what is the obligation of this state (and of the Philippine courts now) under the constitutional and statutory full faith and credit clauses. At the oral argument the court suggested the possibility that since recognition of judicial proceedings of the Philippine Islands is governed by a federal statute, whereas the Constitution commands that full faith and credit be given to the New York judgment, we might be compelled to accept such state judgment in the event of conflict. We do not place our decision on this ground. The statutory full faith and credit clause has been held to be a valid exercise of legislative authority granted by the Constitution. (Alaska Packers Assn. v. Industrial Acc. Com., 294 U.S. 532 [55 S.Ct. 518, 79 L.Ed. 1044] ; Atchison, Topeka & Santa Fe Ry. v. Sowers, 213 U.S. 55 [29 S.Ct. 397, 53 L.Ed. 695] ; Embry v. Palmer, 107 U.S. 3 [2 S. Ct. 25, 27 L.Ed. 346] ; 12 Am.Jur., p. 381, § 706.) Bather, the ground of decision herein is that the New York decision as the last in time is controlling as to the effect to be given the Philippine proceedings. As opposed to this conclusion, appellant cites Hammell v. Britton, 19 Cal.2d 72 [119 P.2d 333]. In a prior action to quiet title judgment was entered for the plaintiff, Mrs. Brit-ton, adjudging certain real property to be community property. (Britton v. Bryson, 216 Cal. 362 [14 P.2d 502] ; Britton v. Hammell, 4 Cal.2d 690 [52 P.2d 221].) The defendant husband had executed a deed without consideration to defendant Hammell, to which the plaintiff had not consented. The husband died and his administrator was substituted as defendant in the prior action. The administrator filed a pleading setting forth that the property was not community because acquired after a divorce granted the husband in Colorado. While the California, action was pending, Mrs. Britton, who theretofore had not known of the divorce decree, brought proceedings in Colorado which resulted in an order setting aside that decree. The trial court in the California action treated this order as a nullity. On appeal the judgment was reversed, and the validity of the Colorado order was sustained. (216 Cal. 362.) A new trial resulted in a judgment for the wife, which was affirmed. (4 Cal.2d 690.) Thereafter, Hammell, the grantee from the husband, and defendant in the first action, instituted proceedings in Colorado to vacate the order setting aside the divorce decree, and obtained an order to that effect. He thereafter brought an action in California to set aside the quiet title decree in favor of the wife. Judgment against him was affirmed on appeal in the decision on which appellant herein relies. (Hammell v. Britton, 19 Cal.2d 72 [119 P.2d 333].) The opinion points out that the validity of the Colorado order setting aside the divorce decree had been sustained in California against the claim that there was a want of jurisdiction to make the order, and that the further claim of fraud in obtaining the order was made, or could have been made in the prior California action. The California court refused to set aside its own judgment on the basis-of a Colorado order which had failed to give full faith and credit to the California judgment. Appellant also relies on Martin Bros. Box Co. v. Fritz, 228 Iowa 482 [292 N.W. 143]. Judgment was rendered in Iowa in favor of the plaintiff there. On proceedings in Iowa to vacate the judgment for want of jurisdiction of the corporate defendant, the court sustained the judgment. Thereafter, the plaintiff brought an action in Indiana to enforce the Iowa judgment, in which the Indiana court held it to be void. The defendant then moved in Iowa to vacate the Iowa judgment on the strength of the Indiana judgment. This relief was refused. In both the above cases there was an attempt to vacate a final judgment in the state which had rendered it. Here, there is an action pending in this state which must be decided, in which the question is, who, as between a husband and wife, is entitled to dividends on shares of stock issued by a corporation. That issue has been the subject of prior litigation in other jurisdictions. The question is, which of the prior conflicting judgments shall be regarded by this court as res judicata of the issue involved in the present action. Under the decision of the Supreme Court of the United States in Treinies v. Sunshine Mining Co., supra, the obligation of this state is to recognize the New York judgment. That judgment is binding as between Mr. and Mrs. Perkins, and, insofar as the present action involves liability for impounded dividends, is conclusive as to the defendant corporation. Doctrine of res judicata as applied to the dividends paid OUT BEFORE NOTICE OF THE NEW YORK JUDGMENT We are of the opinion that the same reasoning that compels the conclusion that the New York judgment is res judicata against the corporation so far as the impounded dividends are concerned, likewise compels the conclusion that, under the facts of this ease, the New York judgment is res judicata as to the dividends paid to Mr. Perkins and his transferees prior to the New York judgment. The basis of the holding that the corporation is bound by the New York judgment, so far as the impounded dividends are concerned, is that the corporation has no adverse interest, as between competing claimants, as to who is the owner of its stock. A determination that the title to the stock rests in one of the competing parties is, and should be, binding on the company. (In addition to cases already cited, see eases collected 6A Cal.Jur., p. 675, § 380.) In the present case, none of the dividends were paid by the corporation to Mr. Perkins without knowledge of the claims of Mrs. Perkins. Mrs. Perkins, prior to 1934, was the stockholder of record. For years prior to 1930 all dividends had been paid to her. Prior to the time the first challenged dividend was paid to Mr. Perkins, Mrs. Perkins had informed the company that she claimed the dividends. Nevertheless, the company, upon the representations of Mr. Perkins, its general counsel, elected to pay these dividends to him, and to take back from him and his partner indemnity agreements to indemnify the company against the very loss it now faces. The company did not pay any of the dividends in good faith reliance on any of the Philippine adjudications, or transactions. The defendant pleaded as a special defense that it had so acted, and urged that for that reason, Mrs. Perkins was estopped. The trial court on comp