Full opinion text
NORVELL, Justice. This is a suit to enforce an Oklahoma equitable decree ordering James Dorsey McElreath to convey lands in Texas to Evelyn Ann McElreath. Both courts below refused the relief prayed for. 331 S.W.2d 375. The decree sought to be enforced was entered in a divorce suit between the parties both of whom were residents of Oklahoma and Oklahoma was their matrimonial domicile. This is not a case wherein one of the parties moved from Texas to Oklahoma for the purpose of establishing a residence for divorce purposes. Neither is this a case wherein either party because of residence in Texas had acquired property rights under and by virtue of the marital laws of this State. We are not called upon to pass upon the hypothetical rights of hypothetical persons in the situations mentioned. It appears without dispute that the order is valid and enforceable in Oklahoma and has been affirmed by the court of last resort in that State. See, McElreath v. McElreath, Old., 317 P.2d 225. However, after the decree had been entered, but before the Oklahoma court could enforce its order, McElreath crossed the Red River and now asserts sanctuary in Texas. Insofar as marital property is concerned, the laws of Oklahoma are different from those of Texas. However, upon the dissolution of a marriage, Oklahoma like Texas seeks to provide equitable distribution of properties and property rights between its residents. Quite obviously one authority must settle these rights if anything approaching fairness and equity is to be secured. Jurisdiction for such purpose rests with the courts of the matrimonial domicile which, in this case, is the State of Oklahoma. A competent court of that state having acted, and presumably having made a proper and equitable adjustment of the property rights of the divorcing- parties, it is anomalous to say the least, to assert that the work of that court may be set at naught by the defendant’s crossing the state line and coming to Texas. There is no doubt but that had he remained in Oklahoma, the decree could and would have been enforced by contempt proceedings. As a matter of justice, good order and common sense, the Oklahoma decree should be enforced in Texas, unless contrary to some well defined public policy of this State. There is something incongruous and out of keeping with the concept of orderly processes to tolerate a situation wherein solemn court decrees may be flouted by playing hop-skip with state boundaries. This case involves Okla-homans and it is not against the public policy of Texas for Oklahoma to maintain a different system of property ownership for its residents than that provided by Texas for Texans. Article 4638 of Vernon’s Ann.Tex.Stats. is a part of Chapter 4, Title 75 of the Revised Statutes relating to Divorce. It reads as follows: “The court pronouncing a decree of divorce shall also decree and order a division of the estate of the parties in such a way as the court shall deem just and right, having due regard to the rights of each party and their children, if any. Nothing herein shall be construed to compel either party to divest himself or herself of the title to real estate.” This article and the chapter of which it is a part apply only to Texas courts pronouncing decrees of divorce in suits involving Texas residents. Our community property system naturally affects our plan of property division upon a marriage dissolution. Under our laws, permanent alimony is not recognized, nor is a Texas court authorized to divest either spouse of his or her title to separate property, Hailey v. Hailey, Tex.Sup., 331 S.W.2d 299, but the wife, in the main, must look to the community property for her share of the material gains incident to an ill-starred marriage. We expect other states to recognize our system of marital property ownership, so should we respect their schemes of property ownership and attendant plans for the adjustment of property rights upon the dissolution of a marriage. Texas public policy does not relate to and is not concerned with the settlement by Oklahoma courts of marital property problems which arise between Oklahoma citizens. Article 4638 establishes a policy governing Texas courts in cases involving divorce and property rights based upon the marital laws of this State. It does not purport to establish a public policy relating to land tenure by nonresidents. The respondent here was a resident of Oklahoma when divorced. He possessed no rights in Texas property tinder the marital laws of this state. He had no homestead right in and to the property involved, Article 16, § 51, Texas Constitution, Vernon’s Ann.St., Article 3833, Vernon’s Ann.Tex. Stats., 22 Tex.Jur., Homesteads, §§ 31, 32, or anything similar thereto. The matter of enforcing the equitable decrees of one state which affect lands in another state has been the subject of much writing, largely occasioned by a few unsatisfactory court decisions. Only a small portion of this legal literature need be noticed. Most of the authorities discuss the problem of the extra-territorial effect of an ■equitable decree from the standpoint of the full faith and credit clause of the United States Constitution, Article 4, § 1. That doctrine need not be adverted to here. It is •similar, but much broader in scope than the doctrine of comity. However persuasive .and helpful, the decisions relating to “Full Faith and Credit” may be, the doctrine it■self need not be invoked when the state of ■the situs as a matter of comity recognizes the rights upon which the decree of a sister ■state is based and decides that the enforcement of such rights does not violate any principle of public policy of the situs state. It has been asserted that the development of the “Full Faith and Credit” clause has fallen half a century behind that of the remainder of the federal constitution. John Russell, “Titles, Effect of Adjudication by Sister States,” 3 Baylor Law Review, 441. However, the problem is essentially one for the Supreme Court of the United States which may compel recognition of a foreign decree despite public policy declarations announced by a state court of the situs. Fauntleroy v. Lum, 210 U.S. 230, 28 S.Ct. 641, 52 L.Ed. 1039. In this connection, see also, Williams v. State of North Carolina, 317 U.S. 287, 63 S.Ct. 207, 87 L.Ed. 279. Professor Brainerd Currie of the University of Chicago Law School in his paper .styled “Full Faith and Credit to Foreign Land Decrees,” 21 University of Chicago Law Review 620, 1. c. 666 argues for a dichotomy approach to the problem which in effect would make unnecessary a resort to the principles of comity. He asserts that “either a judgment is rendered without jurisdiction, in which case due process of law would be denied by holding it conclusive; or it is rendered with jurisdiction in which case it is entitled to full faith and credit.” We need not pass upon the validity of this approach but may reserve judgment upon the point until a case arises wherein the enforcement of the decree of the sister state would to some extent at least violate an established public policy of this state. This case may be and is decided upon the principles of comity. Our differences with the courts below rest primarily upon a divergence of opinions as to the proper construction of the Oklahoma court decree. The trial court and the Court of Civil Appeals treated the decree as being one which directly affected the title to Texas lands. We regard it as being an equitable order operating in per-sonam which orders James Dorsey McEl-reath to execute a deed conveying land in Texas to Evelyn Ann McElreath. Matson v. Matson, 186 Iowa 607, 173 N.W. 127. As so construed, the Oklahoma decree should be enforced as a matter of comity. The statute upon which the Oklahoma decree is based reads as follows: “When a divorce shall be granted by reason of the fault or aggression of the husband, the wife shall be restored to her maiden name if she so desires, and also to all the property, lands, tenements, hereditaments owned by her before marriage or acquired by her in her own right after such marriage, and not previously disposed of, and shall be allowed such alimony out of the husband’s real and personal property as the court shall think reasonable, having due regard to the value of his real and personal estate at the time of said divorce; which alimony may be allowed to her in real or personal property, or both, or by decreeing to her such sum of money, payable either in gross or installments, as the court may deem just and equitable. * * *” 12 O.S. 1951, § 1278. James Dorsey McElreath’s holdings consisted of real and personal property situated in both Oklahoma and Texas. The Texas property was devised to him by his father, A. R. McElreath. This circumstance is immaterial as the Oklahoma statute above quoted makes no distinction between property acquired by gift, devise or bequest and any other form of separate property. Under the Oklahoma law the court was empowered to allow alimony to the wife “out of the husband’s real and personal property.” There is a patent difference between two clauses contained in the decree. One provides that: “It Is Further Ordered, Adjudged and Decreed by the court that the plaintiff have and she is hereby awarded as alimony an undivided one-third interest in and to all real estate, oil properties, mineral rights, leases, royalties, and any other mineral or oil interests owned by the defendant on this date, including the properties set forth and described in ‘Exhibit A’ attached hereto and made a part hereof, and said defendant is hereby ordered and directed to execute good and proper conveyances of such interest in said property to the plaintiff herein within five days from this date, in default of which this decree shall constitute a conveyance thereof.” The second clause which is applicable to the Texas property involved in this lawsuit provides that: “It Is Further Ordered, Adjudged and Decreed by the court that the plaintiff have and she is hereby awarded as alimony an undivided one-third interest in and to the interest owned by the defendant in the Estate of A. R. McElreath, Sr., deceased, either distributed or in the process, of probate, and said defendant is hereby ordered and directed to execute good and proper conveyances of such interest in said property to the plaintiff herein within sixty (60) days from the date hereof.” It may be that the Oklahoma court sought to recognize a difference in the authority which may be exercised by a court having jurisdiction over both the parties, and the res and that which may be exercised by a court having in personam jurisdiction only. The “in rem” provision that in the event James Dorsey McElreath should fail to execute a conveyance, the decree itself should operate as such is not contained1 in the order relating to the Texas property involved in this lawsuit. The trial judge, however, in holding that, the decree, while effective as to personal property in Texas was ineffective as to real property, stated in his conclusions of law that a contrary holding- would “violate the fundamental rule of law that a court of one state cannot operate directly to, pass title to land of another state.” Seemingly the position of James Dorsey McElreath as respondent here is that petitioner’s suit is not one to compel him to execute a conveyance but rather one to assert an equitable title which she claims vested in her by virtue of the Oklahoma decree. We are unable to agree with this strict construction of the pleadings. The essential' facts, — and facts are what count in Texas, pleading — , are alleged in the petition which would authorize a court in Texas to order the execution of a deed so as to implement the rights determined by the Oklahoma decree. In the present suit, the Texas court as distinguished from the position of the Oklahoma court in the divorce suit, has jurisdiction of the res as well as the person and hence has authority to provide that upon the failure of respondent to execute a deed, the decree of the Texas court would have the effect of a conveyance, or that its decree would operate directly to vest petitioner with title to the Texas land. The findings upon which the Oklahoma decree is necessarily based to the effect that petitioner, by reason of her marriage with respondent and her status as a wife, is entitled to certain properties including the Texas land operate by way of estoppel in the nature of res judicata such findings give rise to equitable rights in the property which may be enforced by the Texas courts. The exact method of enforcement is limited only by the jurisdictional authority of the Texas court which having jurisdiction over the res may enter an in rem judgment should such course be deemed expedient. That portion of the Oklahoma decree relating to the Texas land here involved is purely in personam. It provides that “the defendant (respondent here) is hereby ordered and directed to execute good and proper conveyances of such interest in said property to the plaintiff herein within sixty (60) days from the date hereof.” Whether we consider the statement which precedes that above quoted, — “that the plaintiff have and she is hereby awarded as alimony an undivided one-third interest * * * etc.” as an attempt to make the decree operate in rem is immaterial. If it be considered wholly inoperative as to real property, we still have the direct categorical order that the petitioner execute a conveyance. Cf. Kubena v. Hatch, 144 Tex. 627, 193 S.W.2d 175; 25 Tex.Jur. 694, Judgments, § 255. Such an order was within the equitable powers of the Oklahoma court and had McElreath under threat of imprisonment for contempt executed a deed it would have been effective to convey lands in Texas. An analogy between an obligation arising out of the marriage status and one arising under a contract seems entirely valid. It was well stated by Professor Willard Barbour of the University of Michigan Law School in his article on “The ExtraTerritorial Effect of the Equitable Decree,” 17 Mich.Law Review 527, 1. c. 548, that: “We need not say that the foreign decree should ex proprio vigore affect title to domestic land; all that is contended is that the courts of the situs should recognize such a decree as a final determination of a personal obligation to convey, an obligation analogous to that arising from a valid contract. It should be accepted as a valid cause of action in the jurisdiction of the situs and if suit be brought upon it and personal jurisdiction obtained of the person bound, a new decree should be rendered.” The distinction between the decree which purports to directly affect title to lands in another state ex proprio vigore and one which acts upon the parties in personam is important. In essence, the validity of the decree in rem or ex proprio vigore depends upon rules applicable to jurisdiction of courts, while the enforceability of an equitable decree in personam depends upon the public policy of the forum state insofar as comity is concerned. No one contends that an Oklahoma court could decree that A do have and recover against B judgment for title and possession of lands in Texas. On the other hand, when jurisdiction of the persons is present, no one disputes the jurisdiction and authority of the Oklahoma court to decree that A convey to B certain Texas lands, nor the further proposition that such deed, when executed in accordance with the Texas laws relating to conveyancing, operates to legally convey lands in Texas. It therefore follows that unless there be some public policy consideration, a Texas court should not hesitate to enforce an Oklahoma in personam decree ordering a conveyance of Texas lands whether the right given formal recognition by the Oklahoma decree be based upon a contract or one which grew out of the marriage status of Oklahoma residents. Our inquiry relates to public policy and not jurisdiction. The Texas courts, like the courts of Oklahoma, possess the power and authority to award equitable relief in the nature of an order for specific performance and to enforce the same by appropriate contempt action. The enforcement of the rights established by the Oklahoma decree do not involve the use of remedies and processes unknown to the law of Texas, nor the recognition of rights and estates in property unknown to Texas law. See, Stumberg, Conflict of Laws (2d Ed.) 128. The argument of respondents which was accepted by the Court of Civil Appeals stems from Bullock v. Bullock, 52 N.J.Eq. 561, 30 A. 676, 27 L.R.A. 213, 46 Am.St. Rep. 528, and Fall v. Fall, 75 Neb. 104, 120, 106 N.W. 412, 113 N.W. 175, 179, which follows the Bullock case. In Fall v. Fall, the following statement of the New Jersey court is quoted with approval: “[T]he doctrine that jurisdiction respecting lands in a foreign state is not in rem, but one in personam, is bereft of all practical force, if the decree in personam is conclusive and must be enforced by the courts of the situs.” From this premise, it is asserted that a decree of a Washington court in a suit between Washington citizens which directs a party to that suit to execute a conveyance of Nebraska lands is contrary to the public policy of the State of Nebraska. Laying aside for a moment the obvious confusion of the rules governing jurisdiction of courts and the doctrines applicable to questions of public policy, and considering policy alone, we might inquire as to how and in what way does one state’s action in adjusting the property rights and problems of its own citizens violate the public policy of another state. Or, to- be specific and to the point insofar as this case is concerned, what difference does it make to the State of Texas whether the property here involved is awarded to the ex-husband or the ex-wife of a broken Oklahoma marriage? Is there in Texas a public policy which prefers land tenure by males rather than by females? Is there a reasonable probability of the return of feudal tenures to Anglo-American jurisprudence, so that one owning land would be burdened with knight service? 51 C.J.S. p. 461. It would seem that Texas should have no concern with the statutes and methods adopted by Oklahoma in settling the matrimonial differences of its citizens and their property rights. In commenting upon the Fall case, Professor Currie in his paper heretofore mentioned said: “When Justice Letton (the author of the majority opinion in Fall v. Fall) seeks to bolster his argument by the epithetic assertion that ‘the act directed by the Washington court [the conveyance] is in opposition to the public policy of this state, in relation to the enforcement of the duty of marital support,’ it is hard to take him seriously. Bear in mind that he has just finished saying that ‘[i]n 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 apart from this remarkable inconsistency, are we to believe that a statute defining the jurisdiction of Nebraska courts in divorce cases expresses Nebraska’s policy of matrimonial support pertaining to couples domiciled in Washington?” 21 University of Chicago Law Review 620, 1. c. 637. Although this Court and the courts below may be of the opinion that the Oklahoma trial court should have awarded Oklahoma land rather .than Texas land to the wife or entered an alternative money award to the wife in the event the husband refused to convey the Texas land, 17A Am. Jur. 172, Divorce and Separation § 991, and thus avoided the complexities incident to the type of decree now before us, such opinion or belief would not justify a conclusion that the Oklahoma judgment is contrary to Texas public policy. The public policy issue, stripped of all its spurious and specious ramifications, is simply answered by saying that insofar as the public policy of Texas is concerned, either a husband or a wife to a broken marriage of Oklahoma residents may hold land in this state. The argument of the New Jersey case of Bullock v. Bullock, as above indicated, is that the equitable decree of a sister state •directing that a conveyance be made is in substance an in rem decree, and should be treated as such. This over simplification ignores centuries of chancery history and ■development. As heretofore stated, no one ■questions nor could he successfully dispute the proposition that a court of equity having jurisdiction of the person and the ability to enforce its decree by contempt may •coerce the execution of a deed which will be recognized by Texas courts as a valid conveyance of Texas land. It would be strange to say that as long as the respondent remained in Oklahoma and subject to the jurisdiction of the courts of that state, the decree was one in personam, but became in effect a decree in rem when he crossed the boundary line into Texas. This cannot be sound. The post judgment physical movements of parties cannot affect the nature of decrees. Nor can the premise be accepted that respondent was subject only to the coercive orders of the court rendering the decree. This, to use the phrase of Professor Barbour, would be to assume "that equity has made no progress since the time of Coke,” 17 Mich.Law Review 528, and would lead to this anomalous condition of defeasance or something similar thereto : Because of the failure of the Texas court to act, the title to the Texas land would remain in respondent, but should he return to Oklahoma, a court of that state could and undoubtedly would enforce its decree by compelling the execution of a conveyance. This could give rise to numerous title questions and complications. For example, what would be the status of one purchasing from respondent with actual notice of the Oklahoma decree, should respondent after conveying to such purchaser, return to Oklahoma and by court action be coerced into executing a deed to petitioner? Equally unsound is the premise that a deed coerced by the Oklahoma decree may be accepted but the decree re-j ected, for as stated by Currie: “Recognition of the deed necessarily involves acceptance of the decree. Whatever intrusion on the state’s exclusive -control is implied in the recognition of the decree is accomplished through the recognition of the deed. A policy so easily evaded, so dependent on the success of'the defendant in eluding the enforcement process of the foreign court, is a formal lifeless thing, and the truth must be that foreign judicial proceedings of this type pose no real threat to the legitimate interest of the situs state.” 21 U. of Chicago Law Review 620, 629. Professor Stumberg, while recognizing a diversity of opinion among courts, states that the decided weight of authority supports the proposition that the equitable decree of a sister state should be recognized and enforced. Stumberg, Conflict of Laws (2d Ed.) 125. A leading case among those opposed to Bullock v. Bullock and Fall v. Fall is Burnley v. Stevenson, 24 Ohio St. 474, 15 Am.Rep. 621. This was a contract case. A decree of specific performance was rendered by a Kentucky court having jurisdiction of the parties. The subject matter of the suit was land situated in Ohio. No actual conveyance was made. The party entitled to the deed, however, went into possession and in an action in ejectment the Ohio court held that the Kentucky decree constituted a valid defense. The court said: “True, the courts of this state cannot enforce the performance of that decree by compelling the conveyance through its process of attachments; but when pleaded in our courts as a cause of action, or as a ground of defense it must he regarded as conclusive of all the rights and equities which were adjudicated and settled therein, unless it be impeached for fraud.” Essentially the same rule was held applicable to a- divorce case in Matson v. Matson, 186 Iowa 607, 173 N.W. 127, 129. The facts were similar to those in the present case and a statement of them follows : “Plaintiff and defendant Matson were married in May, in 1897, and continued to live together as husband and wife until the summer of 1914. About 1909 they moved to Washington, and thereafter continued to reside in King county, in that state, until the summer of 1914. There were four small children. In June, 1914, plaintiff commenced her divorce action, in the superior court of King county, for an absolute divorce * * * Said action came on for hearing before said court on the 14th day of August, 1914, the appellee appearing in person and by her attorney, and appellant Matson also appearing in person and by his attorney, and the court, having heard the evidence and proofs, then and upon said day announced its decision granting plaintiff a divorce, the custody of the children, and granting to plaintiff the property in Iowa hereinafter referred to by the following provision afterwards incorporated in the decree: “ ‘That plaintiff be and she is hereby awarded the household furniture and piano and property known as 4628 Meade street, Seattle, Wash., and the property of the parties hereto located in the town of Boone in the state of Iowa; and the defendant is hereby directed and required to execute to plaintiff a conveyance of said Iowa property.’ * * * “Immediately after the announcement of the decision of said court in said action, the appellant Ed Matson left the state of Washington and came to the state of Iowa, arriving in said state a few days thereafter. “On the 19th day of August, 1914, said appellant, having arrived in the county of Boone and state of Iowa, made a purported conveyance by warranty deed to the appellant Ida Johnson of the property in Boone, Iowa, for the consideration of $1. Said warranty deed was filed for record in the office of the recorder of Boone county on the 19th day of August, 1914. At and before the execution and delivery of said deed by appellant Ed Matson to appellant Ida Johnson, said Ida Johnson had full knowledge that appellee and appellant Ed Matson were husband and wife; had full knowledge of the decision of the superior court of the state of Washington in and for King county, hereinbefore referred to, and knew that said Matson was directed by the decision of said court to convey to the plaintiff the property hereinbefore described. The conveyance so made by the said Matson to said Johnson was without consideration, save and except the sum of $1. In the deed the said Ed Matson described himself as single, notwithstanding the fact that the decree dissolving the marriage relations between appellee and him had not been filed, and he, the said Matson, then understood that by the decision of said court he was directed to convey the property above described to appellee.” In affirming the judgment of the trial court which set aside the Ida Johnson deed and granted relief to Mrs. Matson under the Washington decree, the Supreme Court of Iowa said: “It should be kept in mind that in the instant case there was personal notice on, and appearance by, defendant Mat-son, in the Washington court, in the case there, and in the Iowa court in this case, and the further important fact, as we view it, that plaintiff here is not relying alone on the Washington • decree to give title as was the fact in some of the cases cited. Nor does she claim that any deed was executed by defendant to her, even under compulsion, pursuant to the direction in the decree that he should convey. This was the situation in some of the cases. Her ■claim is that the Washington court having complete jurisdiction, and having rendered judgment and decree, she may use that as a basis for another suit in the courts of this state, after personal notice, for judgment here, and for a decree here to carry out and enforce the Washington decree, which the defendant, by removing himself from the state of Washington, prevented the Washington court enforcing the decree in that state. Of course, if the defendant Matson had remained in the state of Washington, the courts there could have coerced him into executing a deed as directed by the decree. That is impossible now. We have no doubt but that this was a fraud upon the courts in that state, and, under the circumstances shown, we have no doubt but that his purpose was to prevent his wife from obtaining the full relief to which she was entitled. This was also a fraud. Ought he, in equity, to be allowed to profit by his own wrong ? So far as defendant Matson is concerned, there was no good faith. This being so, why ought not his conscience to be bound? In the instant case, the equities are clearly with the plaintiff.” In Weesner v. Weesner, 168 Neb. 346, 95 N.W.2d 682, 689 it was said that: “[I]t is universally held that a court of one state cannot directly affect or determine the title to land in another state. However, it is also now well established thát a court of competent jurisdiction in one state with all necessary parties properly before it in an action for divorce, generally has the power and authority to render a decree ordering the execution and delivery of a deed to property in another state in lieu of alimony for the wife. Such an order is personam in character, and when final it is generally res judicata, bringing into operation the doctrine of collateral estoppel.” See also, Mallette v. Scheerer, 164 Wis. 415, 160 N.W. 182; Bailey v. Tully, 242 Wis. 226, 7 N.W.2d 837, 145 A.L.R. 578; Simmons v. Superior Court, 96 Cal.App.2d 119, 214 P.2d 844, 19 A.L.R.2d 288; Restatement of Conflict of Law, §§ 94, 97, 430, 450. Cf. Hall v. Jones, Tex.Civ.App., 54 S.W.2d 835, no wr. hist.; Greer v. Greer, Tex.Civ.App., 189 S.W.2d 104; Id., 144 Tex. 528, 191 S.W.2d 848; Milner v. Schaefer, Tex.Civ.App., 211 S.W.2d 600, wr. ref. Respondent, in his vigorous and well-prepared brief, places much emphasis upon the case of Fall v. Eastin, 215 U.S. 1, 30 S.Ct. 3, 54 L.Ed. 65, 23 L.R.A.,N.S., 924, affirming Fall v. Fall, 75 Neb. 104, 120, 106 N.W. 412, 113 N.W. 175. As we construe that case it is not in point here, but some discussion of its holdings may not be inappropriate. As set forth in the forepart of this opinion, there is a clear and fundamental difference between respondent’s construction and this Court’s construction of the Oklahoma decree in issue here, as well as the nature of the relief sought from the Texas court by the petitioner. We do not construe the Oklahoma decree as being in rem, that is, as directly affecting the title to Texas land. Any portions of the Oklahoma decree purporting to act in rem would be ineffective because of a lack of jurisdiction on the part of the Oklahoma court. However, the order directing the execution of a conveyance is in personam. As we read Fall v. Eastin, it goes off on a somewhat different proposition than that asserted by the Nebraska Supreme Court, namely that the decree of the Washington court was in rem and the Washington court was without jurisdiction to render a decree directly affecting the title to Nebraska lands. Much has been written about Fall v. Eastin. The opinion has been criticized for lack of clarity, and it has been remarked that the attorneys for Mrs. Fall, the plaintiff in error, mistakenly analyzed the legal situation actually presented by the record in that they sought to rely upon a commissioner’s deed executed in pursuance of the Washington decree. However, it seems to us as above indicated, that the Supreme Court placed its judgment of affirmance upon the holding that the Washington decree was in rem. We reach that conclusion from the following bases: The controversy grew out of a divorce suit in the state of Washington between Sarah S. Fall and E. W. Fall. The parties at interest in the case considered by the Supreme Court of the United States were Sarah S. Fall and Elizabeth Eastin, the grantee in a deed executed by E. W. Fall. The suit was one to remove cloud from title and not a suit brought by Sarah S. Fall to compel E. W. Fall to convey land to her. The controlling legal question involved was the validity of a commissioner’s deed, or as stated by Mr. Justice McKenna speaking for the majority of the Supreme 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.” [215 U.S. 1, 30 S.Ct. 4] The state of Washington was the matrimonial domicile of the parties and a court of that state entered a decree of divorce which, among other things, ordered E. W. Fall to convey certain lands in the state of Nebraska to Sarah S. Fall. The decree also provided that in the event Fall failed to execute a deed, then a conveyance to Mrs. Fall should be executed by a commissioner appointed by the court. Fall did not execute a conveyance and as a consequence Mrs. Fall received a deed from the commissioner. Elizabeth Eastin claimed under a deed executed by E. W. Fall after the entry of the divorce decree. The holding of the Supreme Court of the United States was that the commissioner’s deed, having been executed by an arm of the Washington court, was in legal effect a part of that court’s decree and that as a court in one state could not by decree divest title in lands situated in another state, the claim of Elizabeth Eastin should prevail. In the majority opinion, Mr. Justice Mc-Kenna said: “[T]he doctrine that the court, not having jurisdiction of the res, cannot affect it by its decree, nor by a deed made by a master in accordance with the decree, is firmly established * * * [I]t 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 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 Eq., §§ 1317, 1318, and notes.” Fall v. Eastin did not and, because of a lack of necessary parties, could not be construed as an effort to enforce the personal obligation of E. W. Fall to execute a conveyance. It is stated in the majority opinion that, “No personal service was had upon E. W. Fall, and he did not appear.” This point is made clear by the concurring opinion of Mr. Justice Holmes wherein he points out that: “[T]he Nebraska court carefully avoids saying 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 the purchasers [in this case, Elizabeth Eastin] would be giving it an effect in rem.” Regardless of the view one may take of the soundness of various pronouncements contained in Fall v. Eastin, its actual holding is not contrary to the basis upon which this case should be decided, namely, that the Oklahoma decree established an obligation binding James Dorsey McElreath to convey the Texas property to the petitioner similar to that arising from a contract to convey which may be protected and enforced by judicial proceedings in Texas. In so doing, no in rem effect is given to the Oklahoma decree. It does not pass title. It is the action of the Texas court in giving effect to the findings of fact supporting the Oklahoma decree which effects a transfer of title. Bailey v. Tully, 242 Wis. 226, 7 N.W.2d 837, 145 A.L.R. 578. As heretofore pointed out we approach this case from the standpoint of comity rather than from the standpoint of the closely related subject of “Full Faith and Credit.” It seems settled that the situs state is not required to give full faith and credit to the judgment of a sister state which purports to act in rem and would directly affect the title to land in the situs state. When, however, as in this case, it is contended that the enforcement of an in personam decree of a sister state would be contrary to the public policy of the situs state, the path to be followed is not so clear. In some cases of conflict of public policies, the state policy may be forced to give way. Fauntleroy v. Lum, 210 U.S. 320, 28 S.Ct. 641, 52 L.Ed. 1039. It is peculiarly the function of the Supreme Court of the United States to decide these delicate questions of policy conflict. Comity, in the absence of a controlling decision by the United States Supreme Court under the “Full Faith and Credit” clause, seems the preferable basis for a state court decision. In that way there is no danger of restricting the scope of state public policy by a prediction of what the United States Supreme Court may hold in any given situation. Our holding therefore is that as a matter of comity we will enforce the equitable decrees of a sister state affecting Texas land so long as such enforcement does not contravene an established public policy in this State. As a corollary to this holding and as applicable to this case, we hold that the enforcement of an equitable decree entered by a sister state in a divorce case between nonresidents of the State of Texas who possess no peculiar property rights growing out of Texas marital laws, does not violate the public policy of this State. Other factual situations are not before us and hence are not decided. Despite the inferential warning contained in Professor Prosser’s hyperbole that lawyers and judges should not pretend to an understanding of the learned writings of law professors in the field of conflicts of law, we are nevertheless bold to say that the following articles from the law reviews support our holdings in principle: Barbour, The Extra-Territorial Effect of the Equitable Decree, (1919) 17 Mich.Law Review 527; Lorenzen, Application of Full Faith and Credit Clause to Equitable Decrees for the Conveyance of Foreign Land, (1925) 34 Yale Law Journal 591; Goodrich, Enforcement of a Foreign Equitable Decree, (1920) 5 Iowa L. Bull. 230, and Cur-rie, Full Faith and Credit to Foreign Land Decrees, (1954) 21 U. of Chicago Law Review 620. See also, Russell, Note on Titles, Effect of Adjudications by Sister States, Conflict of Laws, Foreign Decrees, Stay of Proceedings (1951) 3 Baylor Law Review 441, The judgments of the courts below are reversed and the cause remanded to the trial court with directions to render judgment for the petitioner in accordance with this opinion and the stipulation of the parties, particularly Paragraph 6 thereof which provides for a full disclosure to the petitioner of all properties constituting the Es-state of A. R. McElreath, deceased, as of February 20, 1958, and for such accounting as may be necessary and proper. 49 Am. Jur. 198, Specific Performance § 174. The Chief Justice and Associate Justices GRIFFIN, SMITH and WALKER dissented. . No complaint is made of the holding of th situated in Texas. trial judge in regard to personal property . See, Currie, Full Faith and Credit to Foreign Land Decrees, 21 U. of Chicago Law Review 620,1. c. 640. . “The realm of the conflict of laws is a dismal swamp, filled with quaking quagmires, and inhabited by learned but eccentric professors, who theorize about mysterious matters in a strange and incomprehensible jargon. The ordinary court, or lawyer, is quite lost when engulfed and entangled in it.” William L. Prosser in Interstate Publications, part of the Cook lectures at the University of Michigan. See 11 Baylor Law Review 202.
GRIFFIN, Justice (dissenting). This is the first case in the history of American jurisprudence in which a court of the situs state has recognized the judgment of a sister state adjudging title to land on the ground of comity, where, without question, that judgment violates the plain and unambiguous provisions of the statute of the situs state. I cannot agree to the disposition of this case for the following reasons: 1. The majority, in holding that the Oklahoma judgment is a decree in per-sonam rather than a decree in rem, is directly contrary to the plain wording of the judgment and to the construction placed on the judgment by the parties themselves. 2. The Oklahoma judgment which the majority opinion enforces is void and may be collaterally attacked under the decisions of the Oklahoma Supreme Court. Thus the argument that the effect of the decree can be changed by the defendant’s crossing the state line is without force. 3. The majority opinion would have our trial courts pass title to realty of one spouse to the other spouse, which power is prohibited to our courts in Texas in divorce matters by legislative enactment; to wit, Art. 4638, R.C.S.1925. This necessarily has the effect of permitting the other 49 states to decree a division of Texas land, while Texas courts are expressly prohibited from doing so. Thus we have one rule of law for Texas citizens who own land in Texas and another, more favorable rule, for nonresidents who may own Texas land. This is the rankest kind of discrimination of our own citizens. 4. The judgment of the Oklahoma court is not entitled to recognition under the doctrine of comity because it violates the public policy of Texas as established by legislative enactment. 5. The Oklahoma judgment is not res judicata as to the interest petitioner has in the Texas real estate. 6. The majority decision will create interminable confusion and uncertainty as to land titles and particularly as to land titles in divorce suits, and, as a matter of policy, the decision of the majority should not prevail. The majority assumes that the Oklahoma judgment is a two-part, divisible judgment; that the first part is an in rem judgment which is void and may not be enforced because the court had no jurisdiction to enter it, but that the second part is an in per-sonam judgment which the court did have jurisdiction to enter, is valid, and may be enforced by the courts of this state. If that concept of the Oklahoma judgment is unsound, the entire opinion of the majority, however logical and appealing it may be, must fall. I submit that the judgment is not a divisible judgment and that the entire judgment should be held void once it is admitted, as it must be, that the court had no jurisdiction to award title to the husband’s separate Texas real property to the wife. Evelyn Ann McElreath owned neither the title nor a legal or an equitable right to title to her husband’s separate property in Texas prior to the entry of the judgment in the Oklahoma divorce proceeding. The Oklahoma statute upon which the judgment is based did not give Mrs. McElreath the title or a legal or an equitable right to title to the property. The statute did confer upon the court the discretionary power, when the divorce was granted by reason of the fault of the husband, to award the husband’s separate property to Mrs. McElreath as alimony. But unless and until the court adjudicated the right of Mrs. McElreath to alimony and determined the form which the alimony should take, the court had no power or jurisdiction to direct the husband to convey an interest in his separate Texas real estate to Mrs. McElreath. The direction to execute a conveyance does not, and cannot, stand alone. Mrs. McElreath’s “equitable rights in the property” which the majority would enforce came into being in, and had no existence outside of, that portion of the judgment which “awarded” to Mrs. McEl-reath as alimony “an undivided one-third interest in and to the interest owned by the defendant in the Estate of A. R. Mc-Elreath, Sr., deceased”, an award which the majority concede the court had no jurisdiction to make. It is obvious that the direction to convey contained in the judgment is not the portion of the judgment which undertakes to create rights in or to the property in Mrs. McElreath. The direction to convey is but the mechanics selected by the court for enforcing rights created by the first part of the judgment awarding title. It occupies the same place in the judgment, and serves the same purpose, as would a direction, “for which she shall have a writ of possession”. If that had been the direction — the mechanics of enforcement— and Mrs. McElreath had brought to Texas a writ of possession, would the courts of this state enforce the writ and put her in possession? I think not. And if the mere direction to convey creates rights in the husband’s separate Texas real property, why this suit to establish title to the property? Why not enforce the obligation to convey by a contempt proceeding? What has been said demonstrates, I think, the distinction between this case and those in which the courts of a state of the situs of land will recognize and enforce a judgment of a sister state ordering specific performance of a contract to convey. In those cases the right to the conveyance is not grounded in or created by a judgment which purports to adjudicate title to real property over which the court has no jurisdiction; rather, the right to the conveyance is grounded in and created by a contract of the parties which the court having the parties properly before it has jurisdiction to interpret and order performed. I cannot agree that the Oklahoma judgment is strictly a judgment in personam, as the majority have held. Let us examine the copy of the Oklahoma judgment which is attached to the stipulation of the parties in this trial and which all parties concede is a true and correct copy. As to the Texas properties, both real and personal, the court says, “it is further ordered, adjudged and decreed by the court that the plaintiff have and she is hereby awarded as alimony an •undivided one-third interest in and to the interest owned by the defendant in the Estate of A. R. McElreath, Sr., deceased, either distributed, or in the process of probate, and said defendant is hereby ordered and directed to execute good and proper conveyances of such interest in said property to plaintiff herein within sixty (60) days from the date hereof.” (Emphasis added.) When we examined the petition on which petitioner went to trial in the case at bar, we find that the cause of action stated therein is for the recovery of an undivided one-third interest in the A. R. McElreath, Sr. estate in Texas, and joins in the suit Arthur R. McElreath, Jr., Independent Executor and Fay V. McElreath, Independent Executrix of the Estate of A. R. McEl-reath, Sr., as well as James Dorsey Mc-Elreath, her former husband. After setting out the formal allegations as to parties, their residence, etc., plaintiff sets out the paragraph from the judgment of the Oklahoma court in which she is awarded as alimony the interest in the A. R. McElreath Estate. She then states, “the aforesaid judgment [of divorce and property division] of the District Court of Tulsa County, Oklahoma, is entitled to full faith and credit in the courts of Texas, and its findings and decree are res judicata of the right of Evelyn Ann McElreath to an undivided one-third interest in the moneys and properties devised and bequeathed to James Dorsey McElreath, and she is entitled to recover herein of and from defendants an undivided one-third interest in such interest of James Dorsey McElreath in said Estate of A. R. McElreath, Deceased.” She further alleges that under the terms of the judgment and decree of divorce, defendant, James Dorsey McElreath, was ordered to convey the one-third interest; that he wholly failed and refused to comply with the decree, but “equity regarding as done what ought to have been done, equitable title to such property passed to and vested in plaintiff, * * * and she is entitled to recover * * * one-third of the income accruing or paid to James Dorsey McElreath from the properties in Texas constituting the Estate of A. R. Mc-Elreath, Deceased.” How could, should or would she be entitled to the income from such interest unless it did vest title in her to Texas properties? She pleads no other justification for seeking to recover the income on her claimed interest. If the majority’s thesis is sound — that it is only the decree of the Texas court that vests title in plaintiff, then clearly she has no interest in the Texas realty until final judgment of the Texas courts, and, therefore, could recover no income. If the Oklahoma court’s judgment acted only in personam plaintiff has no right to income. If the Oklahoma judgment vested a title to Texas real estate in her, the same is void under all the authorities, and under the majority opinion, as being rendered without jurisdiction of the Oklahoma court to decree an interest in Texas lands. Now let us examine plaintiff’s prayer in the trial court. “Wherefore, plaintiff prays that on trial hereof plaintiff recover of and from the defendants an undivided one-third interest in and to the interest of James Dorsey McElreath in the real and personal property located in the State of Texas constituting the Estate of A. R. McElreath in the State of Texas * * *; and further that plaintiff recover judgment against the defendant, James Dorsey McElreath, for one-third of all incomes received by him from the Estate of A. R. McElreath, Deceased, since February 8, 1956 [the day after the Oklahoma judgment was entered] and that she recover judgment against the defendants in their capacities as Independent Executor and Executrix, respectively, of the Estate of A. R. McElreath, Deceased, for one-third of all income accruing from the interest of James Dorsey Mc-Elreath in said estate and not yet paid to him,” and for cost and general relief at law and in equity to which she may show herself entitled. The language of that prayer seeks more than the mere enforcement of a personal obligation against the conscience of James Dorsey McElreath. To me it plainly is a suit to recover an interest in Texas real estate by virtue of having been “awarded” such interest by the Oklahoma judgment. Being a judgment in rem, the Oklahoma judgment is clearly not entitled to full faith and credit. “A divorce court does not have jurisdiction to enter a decree in rem which will directly affect the legal title to real estate situated in another state, even though it has jurisdiction in personam over the defendant, and if the person who is ordered to execute the deed does not do so the courts of the state in which the land is situated are not bound to give full faith and credit to a decree concerning the title or the right to it.” (Emphasis added.) 17A Am.Jur. 172, § 991 and 17 Am.Jur. 733, § 669. See also Restatement of the Law: Conflict of Laws, p. 332, § 248(2) and p. 333, § 248d; annotations, 145 A.L.R. 583-584. I should like to point out that the articles by Professor Currie and Professor Barbour, upon which the majority relies, are based on the full faith and credit clause and not on comity. A second point is that the judgment sued on in the present suit is a void judgment under Oklahoma authorities. Despite the statement of the majority that this judgment is a valid one because it was affirmed on appeal by the Oklahoma Supreme Court, I do not agree because there was no attack made in that court upon the court’s judgment awarding plaintiff an interest in defendant’s separate real estate. The cases I now discuss hold contrary to the majority opinion. The case of Sharp v. Sharp, 65 Old. 76, 166 P. 175, L.R.A.1917F, 562, was an action in Oklahoma for the title to Oklahoma land brought by Landis Sharp as plaintiff against his former wife, Jennie Sharp, as defendant. Plaintiff claimed title to the lot under a deed, but, in addition, claimed under a divorce decree of the State of Oregon in which plaintiff and defendant were residents when they were divorced. The Supreme Court of Oklahoma, after an examination of the language of the judgment, concluded that the Oregon decree had the effect of establishing title in plaintiff to the Oklahoma lot, and thus it was beyond the jurisdiction of the Oregon court, and was therefore void. The court approved the reasoning in Fall v. Eastin, 215 U.S. 1, 30 S.Ct. 3, 54 L.Ed. 65, 23 L.R.A.,N.S., 924, 17 Ann.Cas. 853; Proctor v. Proctor, 215 Ill. 275, 74 N.E. 145, 69 L.R.A. 673; Burton-Lingo Co. v. Patton, 15 N.M. 304, 107 P. 679, 27 L.R.A.,N.S., 420; Hart v. Sansom, 110 U. S. 151, 3 S.Ct. 586, 28 L.Ed. 101; Carpenter v. Strange, 1891, 141 U.S. 87, 11 S.Ct. 960, 35 L.Ed. 640. It reversed and remanded the cause to the trial court. West v. West, Okl.1954, 268 P.2d 250 is a divorce and property division case, decided by the Oklahoma Supreme Court. Opal West, as plaintiff, sued I. J. West for divorce, custody of the children, child support and division of their properties. The trial court granted plaintiff her divorce, disposed of the child custody and support phase of the case, and divided all of the property including the defendant’s interest in the Texas land. Regarding the Texas lands, the court said that a divorce decree in one state cannot operate directly to pass title to lands in another state, nor is it res judicata as to the rights of the parties in the court of such other state, citing Sharp v. Sharp, 65 Okl. 76, 166 P. 175, L.R.A.1917F, 562. In California (from which state the majority opinion cites Simmons v. Superior Court, 96 Cal.App.2d 119, 214 P.2d 844, 19 A.L.R.2d 288) an Oklahoma judgment in a, divorce case dividing California lands equally between the parties was held void and subject to collateral attack. Barber v. Barber, 51 Cal.2d 244, 331 P.2d 628. The court refused to give binding effect to the part of the Oklahoma decree concerning realty. That case applies what I consider to be the correct rule of law. It is a rule that will give nonresidents and residents of Texas the same rights by enforcing the law of situs of real estate. It will not refuse rights to citizens of Texas and at the same time recognize these rights in nonresidents. The majority recognizes that the judgment cannot be enforced under the full faith and credit clause of the Constitution of the United States, but seeks to enforce the decree under the doctrine of comity. I say the Oklahoma decree is not enforceable under the doctrine of comity, or, at least, it should not be enforced under “comity” because to enforce this decree is against the public policy of the State of Texas as clearly expressed by the Legislature when it passed Art. 4638, R.C.S., and as the same has been construed by the courts. The majority says Art. 4638 is not a rule of property, but merely a divorce statute. It seems to me that when the Legislature has specifically prohibited the courts from divesting title in real property, such prohibition is a rule of property; i. e., it governs title to separate estates. The majority seems to urge that having given effect to the Oklahoma decree regarding personal property, it would be incongruous to deny effect to the decree regarding real property. To my mind, this distinction illustrates the real, true power of the Oklahoma court. It is too elementary to require citation of authorities that the situs of personal property is in or with the owner thereof. Therefore, whatever court has jurisdiction of his person also has jurisdiction of his personal property and by its decrees against the person it also decrees against the personal property. This very fundamental rule of law explains why a money judgment against a party is entitled to be enforced under the full faith and credit clause of the Constitution of the United States, and a decree creating, changing, or otherwise affecting real property has no such protection. The above rule also clearly explains why a deed or other instrument executed by an owner in obedience to a court decree affecting title to lands in. a state other than the forum state is recognized-and given effect in the situs state. The jurisdiction over the person gives jurisdiction to require the person to act. When a person acts under court order there is no duress. The deed or other instrument transferring title is the act of the owner of the title, not the act of the court. The rights created by such instruments are rights created by the owner of the title, and therefore are and should be recognized by all courts. “ * * * But comity is not permitted to operate within a State in opposition to its settled policy as expressed in its statutes, or so as to override the express provisions of its legislative enactments. Applewhite Co. v. Etheridge, 210 N.C. 433, 187 S.E. 588; Ritchey v. Southern Gem Coal Corp., D.C., 12 F.2d 605. * * * ” Universal C. I. T. Credit Corporation v. Walters, 230 N.C. 443, 53 S.E.2d 520, 522, 10 A.L.R.2d 758(5). And further (11 Am.Jur. 300-301, § 6) “in recognition and enforcement of foreign laws the courts are slow to overrule the positive law of the forum, and they will never give effect to a foreign law where to do so would prejudice the state’s own rights or the rights of its citizens or where the enforcement of the foreign law would contravene the positive policy of the law of the forum, whether or not that policy is reflected in statutory enactment.” In the case of State of California v. Copus, 1958, 158 Tex. 196, 309 S.W.2d 227, this court recognized that a right of action accruing under the laws of another state, will not be enforced in this state if for some good reason the enforcement of it would be prejudicial to the general interests of its citizens. This court said that since Texas had statutes of similar import, we would enforce the California statute as to Copus’ liability for support for his mother only for so long as Copus was a resident citizen of California subject to the statute of limitations contained in the act. The general rule with regard to the enforcement of a judgment of one state in another is stated in 30A Am.Jur. 331, § 226, as follows: “Thus, it is a general rule of law that the res must be within the state or country of the court pronouncing a judgment against it, that the courts of one state or country may not render a judgment binding or operating directly upon property situated in another state or country, and that in so far as they attempt to do so, the judgments so rendered are void”, citing cases from the United States Supreme Court, among which is Fall v. Eastin, supra; and cases from Alabama, Arizona, California, Connecticut, Idaho, Iowa, Kentucky, Maine, Missouri, North Carolina, Oklahoma, Oregon, Tennessee, Texas, Utah, Virginia and Wisconsin. This Court, as late as 1953, in the case of Toledo Society for Crippled Children v. Hickok, 152 Tex. 578, 261 S.W.2d 692, 43 A.L.R.2d 553, refused to give effect to a judgment of the Supreme Court of Ohio construing the will of a resident of Ohio that devised real property in Texas. This court followed the United States Supreme Court case of Clarke v. Clarke, 178 U.S. 186, 20 S.Ct. 873, 44 L.Ed. 1028, and held the Ohio judgment not protected by the full faith and credit clause. Thus we disposed of the cause under the rale of “comity”, but did not recognize or apply the