STATEMENT.
Sherwood, J.(dissenting).—Lot number 16 in block number 9, in the town of Tarkio furnishes the subject-matter for this litigation which takes the form of an equitable proceeding to divest the title out of certain of the defendants who had bought the equitable interest in the lot of Buck and wife after the levy of the writ of attachment on the lot, plaintiff being the purchaser under such attachment proceedings, which were instituted in March, 1887, amended in June, 1889, so as to include two personal judgments rendered against Buck and wife then residents of Dakota, and ■judgment duly rendered thereon after publication against the Bucks as nonresidents, who were husband and wife and sued as copartners in the original suit by attachment.
Thompson and Trout, two of the defendants herein, purchased the interest of Buck on the twenty-seventh of July, 1889, abstracts of the attachment suit then being on file in the proper office.
In June, 1890, Perkins, the holder of the legal title to the lot, made deed to Trout and Thompson, the previous purchasers of the equitable title of Julia E. Buck, the wife and her husband, O. W. Buck.
*193Buck and wife and Trout and Thompson, defencV ants in the present proceeding, averred that, Mrs. Buck being a married woman, the court in which the attachment proceeding was brought, acquired no jurisdiction over her or her husband, or the subject-matter in that suit. ' The answer also contained general allegations of denial of the averments of the petition, and plaintiff replied.
The lower court found in favor of defendants, and plaintiff appeals. Other facts as necessary will be hereafter adverted to.
OPINION.
1. This record discloses the fact that the predominant question herein presented is, whether a married woman, resident in Dakota, capable by the laws of that state of contracting as a feme sole in every particular, and of suing and being sued like any other person, can be sued in this state as a nonresident and her lands attached to satisfy a debt.
Haying elaborately considered the authorities, Mb. Justice Stoby reaches the conclusion that: “Generally speaking, the validity of a contract is to be decided by the law of the place where it is made. * * * If valid there, it is by the general law of nations, jure gentium, held valid everywhere, by the tacit or implied consent of the parties. The rule is founded, not merely in'the convenience, but in the necessities of nations; for, otherwise, it would be impracticable for them to carry on an extensive intercourse and commerce with each other. The whole system of agencies, of purchases and sales, of mutual credits, and of transfers of negotiable instruments, rests on this foundation.” Story on Conflict of Laws, sec. 242.
Elsewhere, the same eminent author says: “In regard to questions of minority or majority, compe*194tency or incompetency to marry, incapacities incident to coverture, guardianship, emancipation, and other personal qualities and disabilities, the law of the domicil of birth, or the law of any other acquired and fixed domicil, is not generally to govern, but the lex loci contractus aut actus, the law of the place where the contract is made or the act done.”
“Although foreign jurists generally hold that the law of the domicil ought to govern in regard to the capacity of persons to contract, yet that the common law holds a different doctrine, namely, that the lex loci contractus is to govern.”
“If by the law of the place of the domicil of the husband a married woman has a capacity to sue, or to make a contract, or to ratify an act, her acts so done will be held valid everywhere.” Story on Conflict of ' Laws, secs. 103, 241, 66a.
From these premises, supported, as is needless to say, by abundant authority, let us deduce and apply the principles they enunciate to the facts heretofore set forth.
This case must then be dominated by the law of Dakota; that law made Mrs. Buck as to the contracts' which resulted in the judgments obtained, a feme sole to all intents and purposes.
By that law the feme defendant made contracts which being valid where made, became eo instanti valid everywhere, and capable of being enforced in like manner as in the state of their origin. Those contracts thus made and judgments obtained in Dakota, bore with them wherever taken the stamp of the status, capacity and condition of the feme defendant conferred by the laws of that state, hence she is to be regarded in reference to such contracts and judgments, as a feme sole in this state, with full capabilities and liabilities as such, and with none of the disabilities incident to *195coverture in this state. This must be so, or else the acknowledgment of the validity of the contracts would be but a barren and idle ceremony conferring no benefits and affording no remedy. Because, if in this state Mrs. Buck be permitted to assert her coverture as a defense to such contracts, she thereby overthrows the force and effect of the law under which those contracts were made and those judgments recovered.
We hold, then, that Mrs. Buck, as to such contracts, etc., already mentioned, occupies the attitude before this court of a feme sole, suable as such in every point and particular as if she were discovert. • For this reason our laws which do not admit a recovery of a personal judgment, against a feme covert in an action at law, do not apply, and were not intended to apply, to such a case, as will be more fully seen later on.
A number of well considered cases support the views here expressed. Thus in Kentucky, a married woman is incapable of binding herself by contract except in a limited way as to necessaries, but yet in that state a married woman and her husband being domiciled in the state of Louisiana, where such contracts were valid, having executed with her husband a promissory note, it was ruled that the payee of such instrument could maintain an action on such note in the state of Kentucky against the feme covert, recover a judgment against her as a feme sole and subject her general property in that state to the payment of such judgment. Gibson v. Sublett, 82 Ky. 596.
In that case the principles announced by Story were referred to and followed, and it was there aptly and forcibly said: “If, then, the contract is to be held valid and binding here, because it is so in the state where it was made, it would seem to reasonably follow that her property here should be subject. For, to hold that a valid and binding contract is not enforceable at any *196time, nor in any manner, is absurd. * * * In our opinion, whenever it is ascertained and determined, by judgment of court, that a contract made by a married woman in another state is valid and binding, as, according to the rule founded upon comity between the states, the contract in this case must be adjudged, the remedy provided for the satisfaction of judgments should be applied as though the judgment was against a feme sole or a married woman invested with the rights and subject to the responsibilities of a feme sole.'”
The point that no personal judgment was rendered against the married woman was not passed upon in that case, because not assigned for error; but the evident drift and intimation of the opinion sanction the rendition of such judgment, and the quotation there made from Hart v. Grigsby, 14 Bush, 544, and the reference thereto sets this point .forth in a very clear light. In that case it appears that by a statute of Kentucky, a decree of chancery in certain circumstances might be obtained conferring on a married woman the power to make contracts, sue and be sued as a feme sole, and it was there said in reference to an instance where such power had been conferred: “Power to make a contract necessarily subjects the person possessing the-power to the obligations legally incident to the contract made in the exercise of the power; and a married woman authorized by statute to contract as a feme sole is bound as a feme sole upon any contract she may make under the power, and is subject to all the remedies to whi^h she would have been subject if unmarried.” In that case it is worthy of remark, no change had occurred in the general laws of Kentucky respecting the method of procedure against married women.
7 In North Carolina, a married woman (with one exception not necessary to be here adverted to) is incapable of binding herself by contract, nor is there *197any method of procedure provided for recovering a personal judgment against her, but nevertheless it has been held in that state that a promissory note executed by a married woman in the state of New York, where by the late acts (1884) she could contract as a feme sole, could be sued in North Carolina, and such married woman being served with process in that state, a personal judgment could be rendered against her. Taylor v. Sharp, 108 N. C. 377.
In a later instance in that state, where the note was executed by the feme covert, in South Carolina, and being there valid, it was ruled that a personal judgment could be rendered against her. Wood v. Wheeler, 111 N. C. 231.
Both of these cases proceed upon the theory that, the contract being valid where made, that validity attends it and determines the status, condition and capacity of the maker in the forum of another state whose laws do not Recognize the validity of such contracts, when made within the jurisdiction of such forum.
A married woman resident in Kentucky, and emancipated from the disabilities of coverture by a decree to that effect in a court of that state, executed as surety of a firm of which her husband was a member, a promissory note, and it was held in a suit instituted in Tennessee that a judgment could be recovered against her on such note, and her property in that state sold for the satisfaction of the judgment thus rendered, though by the lexjori there no suits could ordinarily be maintained ' against a married woman there resident. Robinson v. Queen, 87 Tenn. 445.
In Illinois the same principle has been enforced. Thus a feme covert resident in that state, executed a promissory note in the state of New York, whereby by the statutes and adjudications of that state she only *198charged her separate equitable estate. Subsequently she and her husband, who had joined in the execution of the note, were sued in Illinois on the note in an action at law and judgment recovered, but it was held in reversal of the judgment, that, as her contract by the law of the place of contract was only of an equitable character, the only recovery which could be had against her was by a proceeding in equity, notwithstanding by the statutes of Illinois then and theretofore in existence, a married woman could be sued at law, either with or without her husband, judgment recovered against her and her property sold to satisfy the same. Burchard v. Dunbar, 82 Ill. 450.
The clear corollary from this case is that, had the feme by the statutes of New York bound herself by the execution as a feme sole, a legal judgment might have been recovered against her in the state of her residence. In other words, her status toward the note and her capacity respecting the same, as well as the obligation of the contract, were determined by the lex loci contractus.
In Massachusetts, a married woman resided. By the statutes of that state, at that time, she was incapable of contracting. She made, however, a written guaranty of her husband’s debt and the instrument was forwarded and delivered in Maine, where such contracts were valid and binding and where they could be enforced in the same manner “as if she were sole.” Subsequently, the statutes of Massachusetts were so amended that a married woman could contract and could be sued, and,in the particular instance referred to, the feme covert who gave the guaranty, was sued in Massachusetts and it was held after an elaborate and learned discussion, in which the principles heretofore quoted from Story as to the force and effect of the law of the place of contract were distinctly recognized that *199the action could "be maintained. Milliken v, Pratt, 125 Mass. 374. Of the correctness of this ruling there would seem to "be no doubt, as the statutes of Massachusetts, at the time of action brought, were in substantial conformity with those of Maine.
In Spearman v. Ward, 114 Pa. St. 634 (8 Atl. Rep. 430) a married woman residing in’Ohio executed certain promissory notes there, and was afterwards sued upon them in Pennsylvania, where she was incapable of contracting. In that case the action failed because it did not appear that the feme defendant was capable of making the notes under the laws of Ohio, the court in that case saying: “It was conceded upon the argument that, if by the law of the state of Ohio the common law disabilities of married women have been removed, and the defendant is clothed with a general power of contracting, the same as a feme sole, the plaintiff would be entitled to obtain a judgment against here, which could be enforced by execution as in other cases. It is very certain that if the defendant had carried on business in this state, and had given the notes here, there could be no recovery. The reason is that the note or other obligation of a married woman here is void, as at common law. * * * The statutes of the state of Ohio attached to the special verdict do not confer upon a married woman a general power of contracting. They do not authorize married women to enter into general business, and bind themselves personally for notes given.”
This language bears with it the clear recognition of the doctrine that, had the feme defendant'been able in Ohio to bind herself generally by the notes sued, this would have been a sufficient basis in Pennsylvania for a general judgment and general execution against her, though not allowable against women resident in that state. This view of that case is taken in the subse*200quent one of Evans v. Cleary, 125 Pa. St. 204 (17 Atl. Rep. 440). In that case a married woman residing in Illinois, contracted a debt which she was authorized by the statutes of that state to contract as if she was unmarried, and which debt could be enforced against her separately. Action was afterwards was brought on this debt in Illinois and judgment recovered against the contracting feme.
Subsequently a suit was begun in Pennsylvania on the judgment obtained against both the husband and the wife; dismissed as to the former and judgment as to the latter. This judgment was affirmed, the supreme court holding, that being individually liable where the contract was made and the judgment recovered, her status remained unchanged in the state where the suit was brought, and that joinder of the husband was unnecessary.
In a subsequent case in the same state, an action was brought on a bond executed by a married woman in the state of Delaware where she was liable personally on her contract, she being then resident in Pennsylvania. She resisted the action, one ground being that, owing to her disability, the contract could not be enforced against her personally. But thereupon it was held that judgment was properly recoverable against her in the state of Pennsylvania, the supreme court remarking: “The remedy and the effect to be given to any existing disability in the maker of the instrument are also to be determined by the law of the place of payment. Hill v. Chase, 143 Mass. 129. * * '* The courts of this state will administer in such case the lex loci contractus as against one under disability. Evans v. Clearly, 125 Pa. St. 204. * * * We have, therefore a contract made and, in legal effect, delivered in Delaware, for the puchase of real property in that state, upon which, according to *201the laws of that state, the defendant is personally liable notwithstanding her coverture. In passing upon it here, our courts will secure to her the advantages, and enforce against her the obligations of her contract in accordance with the laws of that state.77 Baum v. Birchall, 24 Atl. Rep. 620.
In Wright v. Remington, 41 N. J. L. 48; it was hold that an ordinary action might be maintained against a married woman alone on a contract made by her in Illinois, where she was capable of contracting as if unmarried, notwithstanding there were' no such statute in New Jersey and that the enforcement of such a contract in New Jersey was not repugnant to the general interests of the citizens or of the policy of that state.
Prom these authorities, the rule is readily deducible that, although the lex fori must apply as to the remedy, yet that it belongs to the lex loci contractus to interpret the contract; ascertain its validity; the nature of its obligations; the capacity and status of the contracting party, and, having done this, the lex fori applies the remedy in accordance with the legal status of the party sued as previously determined by the law of the place of the contract.
Thus, if a feme covert is sued in a jurisdiction where she is incapable of contracting, on a contract executed in a country where she is capable, by the form of the action brought against her, she will be treated and dealt with as a feme sole. In no other way, indeed, could validity, force or effect be given to contracts made in another jurisdiction, unless the courts, when appealed to to enforce such contracts, aimed to do so in such a manner as to give effect to them according to the law which gave them validity. Camfranque v. Burnell, 1 Wash. C. C. 340.
*202Bishop says: “A court, called upon to enforce a contract made in another state or country, tests its validity by the foreign law, except where domestic policy forbids. Not that in any proper sense the foreign law controls the tribunal; but, being duly proved, it is, by that portion of its own law which is termed international, made domestic for the purpose.” Bishop on Contracts [Enlarged Ed.], sec. 1371; see, also, Bank v. Earle, 13 Pet. 589; Story on Conflict of Laws, secs. 38, 80, 99.
2. If the foregoing observations be taken as correct, no difficulty is encountered in holding that the feme in this case was properly proceeded against by attachment. If her status by the law of Dakota was, respecting the contracts in question, that of a feme sole, attachment would necessarily run against her as well as against any other nondisabled person. In two of the cases already cited, Robinson v. Queen and Evans v. Cleary, supra, the proceedings were instituted by attachment.
A different conclusion as to the right to sue a married woman by attachment has been reached in Rhode Island. Hayden v. Stone, 13 R. I. 106. But that ease is entirely consistent with itself, for there it is declared that no suit at all could be there maintained against a married woman, even on a promissory note executed by her in Massachusetts and conceded to be valid by the laws of that state.
3. Taking it, then, for granted that the feme defendant could be sued by attachment, and the writ of attachment being levied on the interest of herself and husband in the litigated lot, and, due notice of the pendency of the attachment having been filed in the proper office prior to the purchase by Trout and Thompson, it follows that plaintiff’s title to the lot purchased at the attachment judgment sale, will prevail over that of *203defendants Trout and Thompson, who purchased the lot of Buck as the representative of his wife, and subsequently to the levy of the attachment writ and subsequently to notice given of the attachment lien, took subject thereto; and as an abstract of the attachment was duly filed as required by section 543, Revised Statutes, 1889, they can not successfully deny that they had notice of the levy of the writ, notwithstanding they may have had no actual notice thereof. And that Mrs. Buck was a partner in the firm of Oliver W. Buck & Co.; that such firm was indebted, as stated, and that she was not a resident of this state when the attachment suit was brought was settled and determined by the judgment in that suit as effectually as if she had been personally served with ordinary process. In Irvine v. Leyh, 102 Mo. 200, the reporter makes the court say that notice by publication ivas less effectual than by personal service. But this was a mistake, as three of the members of the court, the writer of this opinion among the number, took the contrary view, to wit, that a person notified by publication is as much notified as those served within this state with personal process by an officer.
The only difference in legal effect between the two methods of service, so far as necessary to mention them here, would be, in the former, a bill of statutory review would be allowable, and in the second, no such bill would lie.
It does not appear that the sheriff notified the actual tenants of the property, but this, under the ruling in Durossett’s Adm’r v. Hale, 38 Mo. 346, would not invalidate the levy.
For these reasons there was error in dismissing plaintiff’s petition. The foregoing was tendered as the opinion of the court, but as my associates entertain and express different views, I file this as my dissent.