Opinion of the Court.

THE facts are stated in the opinion.

215 U.S.

Mr. Charles J. Greene, Mr. Ralph W. Breckenridge and Thomas H. Matters, for plaintiff in error.

There was no appearance or brief for defendant in error.

MR. JUSTICE MCKENNA delivered the opinion of the court.

The question in this case is whether a deed to land situate in Nebraska, made by a commissioner under the decree of a court of the State of Washington in an action for divorce, must be recognized in Nebraska under the due faith and credit clause of the Constitution of the United States.

The action was begun in Hamilton County, Nebraska, in 1897, to quiet title to the land and to cancel a certain mortgage thereon, given by E. W. Fall to W. H. Fall, and to cancel a deed executed therefor to defendant in error, Elizabeth Eastin.

Plaintiff alleged the following facts: She and E. W. Fall, who was a defendant in the trial court, were married in Indiana in 1876. Subsequently they went to Nebraska, and while living there, "by their joint efforts, accumulations and earnings, acquired jointly and by the same conveyance" the land in controversy. In 1889 they removed to the State of Washington, and continued to reside there as husband and wife until January, 1895, when they separated. On the twenty-seventh of February, 1895, her husband, she and he then being residents of King County, Washington, brought suit against her for divorce in the Superior Court of that county. He alleged in his complaint that he and plaintiff were bona fide residents of King County, and that he was the owner of the land in controversy, it being, as he alleged, "his separate property, purchased by money received from his parents." He prayed for a divorce and "for a just and equitable division of the property."

Plaintiff appeared in the action by answer and cross com

plaint, in which she denied the allegations of the complaint, and alleged that the property was community property, and "was purchased by and with the money and proceeds of the joint labor" of herself and husband after their marriage. She prayed that a divorce be denied him, and that the property be set apart to her as separate property, subject only to a mortgage of $1,000, which she alleged was given by him and her. In a reply to her answer and cross complaint he denied that she was the "owner as a member of the community in conjunction" with him of the property, and repeated the prayer of his complaint.

Plaintiff also alleges that the Code of Washington contained the following provision:

"SEC. 2007 [now 4637]. In granting a divorce, the court shall also make such disposition of the property of the parties as shall appear just and equitable having regard to the respective merits of the parties and to the condition in which they will be left by such divorce, and to the party through whom the property was acquired, and to the burdens imposed upon it for the benefit of the children, and shall make provision for the guardianship, custody and support and education of the minor children of such marriage."

She further alleges that that provision had been construed by the Supreme Court of the State requiring of the parties to an action for divorce to bring into court all of "their property, and a complete showing must be made, "" and that it was decided that § 2007 [now 4637] conferred upon the court "the power, in its discretion, to make a division of the separate property of the wife or husband.'"

She further alleges that a decree was entered granting her a divorce and setting apart to her the land in controversy as her own separate property forever, free and unencumbered from any claim of the plaintiff thereto, and that he was ordered and directed by the court to convey all his right, title and interest in and to the land within five days from the date of the decree.

She also alleges the execution of the deed to her by the commissioner appointed by the court, the execution and recording of the mortgage to W. H. Fall and the deed to defendant; that the deed and mortgage were each made without consideration and for the purpose of defrauding her, and that they cast a cloud upon her title derived by her under the decree of divorce and the commissioner's deed. She prays that her title be quieted and that the deed and mortgage be declared null and void.

W. H. Fall disclaimed any interest in the premises, and executed a release of the mortgage made to him by E. W. Fall. Defendant answered, putting in issue the legal sufficiency of the complaint, and, in addition, set forth the fact of the loan of $1,000 to E. W. Fall, the taking of a note therefor signed by him and William H. Fall, the giving of an indemnity mortgage to the latter, and the execution subsequently of a deed by E. W. Fall in satisfaction of the debt. No personal service was had upon E. W. Fall, and he did not appear. A decree was passed in favor of plaintiff, which was affirmed by the Supreme Court. Fall v. Fall, 75 Nebraska, 104; 106 N. W. Rep. 412. A rehearing was granted and the decree was reversed, Judge Sedgwick, who delivered the first opinion, dissenting.

There is no brief for defendant in this court, but the contentions of the parties and the argument by which they are supported are exhibited in the opinions of the Supreme Court.

The question is in narrow compass. The full faith and credit clause of the Constitution of the United States is invoked by plaintiff to sustain the deed executed under the decree of the court of the State of Washington. The argument in support of this is that the Washington court, having had jurisdiction of the parties and the subject-matter, in determination of the equities between the parties to the lands in controversy, decreed a conveyance to be made to her. This conveyance, it is contended, was decreed upon equities, and was as effectual as though her "husband and she had been strangers and she had bought the land from him and

paid for it and he had then refused to convey it to her." In other words, that the decree of divorce in the State of Washington, which was made in consummation of equities which arose between the parties under the law of Washington, was "evidence of her right to the legal title of at least as much weight and value as a contract in writing, reciting the payment of the consideration for the land, would be."

The defendant, on the other hand, contends, as we gather from his petition for a rehearing in the Supreme Court of the State and from the opinions of the court, that "the Washington court had neither power nor jurisdiction to effect in the least, either legally or equitably," lands situated in Nebraska. And contends further that by the provision of ch. 25, 276 Comp. St. 1901, Neb., a court had no jurisdiction to award the real estate of the husband to the wife in fee as alimony, and a decree in so far as it attempts to do so is void and subject to collateral attack. For this view are cited Cizek v. Cizek, 69 Nebraska, 797, 800; Aldrich v. Steen, 100 N. W. Rep. 311, 312.

The contentions of the parties, it will be observed, put in prominence and as controlling different propositions. Plaintiff urges the equities which arose between her and her husband, on account of their relation as husband and wife, in the State of Washington, and under the laws of that State. The defendant urges the policy of the State of Nebraska, and the inability of the court of Washington by its decree alone or the deed executed through the commissioners to convey the land situate in Nebraska. To the defendant's view the Supreme Court of the State finally gave its assent, as we have

seen.

In considering these propositions we must start with a concession of jurisdiction in the Washington court over both the parties and the subject-matter. Jurisdiction in that court is the first essential, but the ultimate question is, What is the effect of the decree upon the land and of the deed executed under it? The Supreme Court of the State concedes, as we under

stand its opinion, the jurisdiction in the Washington court to render the decree. The court said (75 Nebraska, 104, 128): "We think there can be no doubt that where a court of chancery has by its decree ordered and directed persons properly within its jurisdiction to do or refrain from doing a certain act, it may compel obedience to this decree by appropriate proceedings, and that any action taken by reason of such compulsion is valid and effectual wherever it may be assailed. In the instant case, if Fall had obeyed the order of the Washington court and made a deed of conveyance to his wife of the Nebraska land, even under the threat of contempt proceedings, or after duress by imprisonment, the title thereby conveyed to Mrs. Fall would have been of equal weight and dignity with that which he himself possessed at the time of the execution of the deed."

But Fall, not having executed a deed, the court's conclusion was, to quote its language, that "neither the decree nor the commissioner's deed conferred any right or title upon her." This conclusion was deduced, not only from the absence of power generally of the courts of one State over lands situate in another, but also from the laws of Nebraska providing for the disposition of real estate in divorce proceedings. The court said (75 Nebraska, 133):

"Under the laws of this State the courts have no power or jurisdiction in a divorce proceeding, except as derived from the statute providing for such actions, and in such an action have no power or jurisdiction to divide or apportion the real estate of the parties. Nygren v. Nygren, 42 Nebraska, 408; Brotherton v. Brotherton, 15 N. W. Rep. 347; Cizek v. Cizek, 69 Nebraska, 797; Aldrich v. Steen, 100 N. W. Rep. 311. In Cizek v. Cizek, Cizek brought an action for divorce and his wife filed a cross bill and asked for alimony. The court dismissed the husband's bill, found in favor of the wife, and, by stipulation of the parties, set off to the wife the homestead and ordered her to execute to the husband a mortgage thereon, thus endeavoring to make an equitable division of the property.