(dissenting).
The supreme court of New York made a decree for divorce in favor of the wife, and ordered that the husband pay $100 per month alimony, and that to secure it to the wife he should execute a mortgage on lands which he owned in New Jersey. Personal service was made upon the husband in the New York ■divorce suit, and the decree for divorce, including the order to ■execute the mortgage, was obtained on the 1st day of July, 1892.
On the 19th of November, 1892, on the application of the wife’s attorney, an order was entered in the New York court •specifying the lands in New Jersey upon which the husband should execute the mortgage.
Thereupon the wife filed a bill in the court of chancery of this state to compel the husband to execute the mortgage in accordance with the New York judgment, and also to set aside conveyances of the property in this state by the husband, which are •alleged to be fraudulent.
The first question is, whether the New York court, on common-law principles, had the power to decree a mortgage to be ■executed to secure the wife’s alimony.
The ecclesiastical courts had no such power.
These courts enforced their decrees by excommunication until an act was passed (53 Geo. III. c. 127) forbidding excommunication and providing imprisonment for contumacy in its stead.
The power of the New York court, if it exists, must be ■statutory.
Prior to the judgment the presumption, in the absence of proof, would be that the common law prevailed and that no such power rested in the New York court. But after judgment the presumption will be .that all things were rightly done and that the power did exist by statute in New York.
This presumption will prevail until evidence is produced to 'repel it. In this case there is an entire absence of proof, on this point. Admitting this to be so, the judgment in New York constitutes no lien upon lands in this state. Davis v. Headley, 7 C. E. Gr. 115; Lindley v. Reilly, 21 Vr. 636.
*573But this does not 'dispose of the case. The question is,, whether our court of equity will establish a lien upon the New Jersey lands so as to give effect to the New York decree.
It may be conceded that the lex fori must apply to the remedy to enforce the New York judgment in our courts. Harker v. Brink, 4 Zab. 333; Garr v. Stryker, 1 Harr. 404; Amour v. McMichael, 7 Vr. 92.
While we will give full faith and credit to the New York-judgment, we cannot be asked to give greater efficacy to a decree for alimony made in New York than we can give to a like decree made in our own courts.
For instance, if the common law prevailed here, we would-enforce the New York decree for alimony only according to the common-law practice, for that would exhaust our power in that respect.
Under our statute concerning alimony it has been held that equity may decree that it shall be a lien upon the husband’s lands. Snover v. Snover, 2 Beas. 261.
I do not find that a decree has been made expressly requiring the husband to execute a mortgage, but it is not necessary here as the decree that it shall be a lien by its own force attaches to-the land. It is a difference in mere form,.not in substance.
The right to establish the lien must .carry with it the power to require the husband to execute any conveyance requisite to its enforcement. The question to be solved, therefore, is whether, under that provision of the federal constitution which requires that full faith and credit shall be given in each state to the public acts, records and judicial proceedings of every other state, the-wife is entitled to invoke the aid of our courts to give effect to-the New York judgment in conformity to our practice.
It is undoubtedly true that the New York court had no power to create a lien upon New Jersey lands, and it is also true-that the New York court could have acted upon the person of the husband while within its jurisdiction and constrained him to-execute such a writing as would have been effective to pass the title to, or establish a lien on, the New Jersey lands. The question, however, is not what the New York court could have-*574•done, but what the courts of New Jersey, in discharge of her ■constitutional obligations, should do in aid of the wife after rendition of the judgment in New York.
The New York court having jurisdiction of the person of the husband and also of the subject-matter of the suit there, the judgment in that state, as between the parties to that suit, was conclusive of the right of the wife to have the husband execute a mortgage upon the New Jersey lands, although it did not of its . own force create a lien upon the lauds. As to the title to such lands, it had the effect of an admitted legal contract or obligation by the husband to convey and should b.e enforced in ■equity here.
A judgment in New York that a party defendant shall specifically -perform a written contract to con vey lands in New Jersey would furnish no better foundation for the interference of our court of equity than the judgment relied upon in this case. In what respect they differ in principle is not apparent. In either case obedience to the mandate of the federal constitution would give effect to the judgment here.'
In Elizabeth Savings Institution v. Gerber, 8 Stew. Eq. 153, this court held that a judicial order in New York that the garnishee owes a debt to the defendant in a judgment, such moneys being in the custody of a court of equity, creates per se a right to apply to such court for such moneys in the same way as an assignment of such moneys to the plaintiff in the judgment would have passed such right. Such ar decree in the New York court settled the plaintiff’s right to the fund, and that right was an equitable one, which -was enforced in this state.
The decree or judgment in New York has the effect of being not merely prima fade evidence, but conclusive proof of the rights thereby adjudicated, and a refusal to give it the force and effect in this respect which it had in the state" in which it was rendered denies a right secured by fundamental law.
The force and effect of the decree for alimony in New York was not to create a lien upon lands in New; Jersey, but to conclusively entitle the wife to have that decree ‘enforced against the husband.
*575It being competent for our courts to enforce such a decree made in our own courts by establishing it as a lien on lands, we cannot refuse like relief in this case on the extra-territorial judgment. Huntington v. Attrill, 146 U S. 657; McElmoyle v. Cohen. 13 Pet. 312.
In Cheever v. Wilson, 9 Wall. 108, 121, there was an order of the divorce court in Indiana directing the wife to pay one-third of her rents as they became due to her husband. The land was in Washington, where suit was brought to enforce payment of the rents to the husband. The court said that the decree in Indiana, so far as it related to the real property in question, could have no extra-territorial effect; but if valid, it bound those who were parties in the case, and could have been enforced in the situs rei by proper proceedings for that purpose.
The judgment in New York must be regarded as conclusively imposing a legal personal obligation or duty upon the husband to mortgage his lands in New Jersey.
The New York judgment is conclusive between the parties to it—
First. As to the right to a divorce.
Second. As to the right of the wife to the alimony allowed.
Third. It is equally conclusive, as against the husband, as to her right to have such alimony secured by a mortgage on his New Jersey lands, that being expressly a part of the adjudication in New York.
The judgment imposed an obligation upon the husband from which he cannot relieve himself by removing from the jurisdiction in which it was rendered; that obligation follows him into this state.
The lien does not by mere force of the extra-territorial judgment attach to lands in this state. To impress that lien upon lands here the intervention of our court of equity is necessary, just as it is necessary to sue here upon a New York judgment before execution can issue from our courts to obtain satisfaction of it.
The husband has had his day in court in New York, where all these questions have been adjudicated against him, and our courts should hold that he is thereby concluded.
*576The question in its true form is whether we will give full faith and credit to the judgment of the New York court in so far as it finally adjudges the questions legally submitted to it, when it had jurisdiction both of the subject-matter of the controversy and of the parties to it.
It seems to me that there can be but one answer to this question, and that the court below erred in dismissing the complainant’s bill.
For affirmance — Abbett, Depue, Garrison, Magie, Brown, Smith — 6.
For reversal — Dixon, Lippincott, Reed, Van Syokel, Bogert — 5.