McElreath v. McElreath

MR. JUSTICE GRIFFIN,

joined by MR. CHIEF JUSTICE CALVERT, dissenting.

This is the first case in the history of American jurispru*209dence 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 personam 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, E. 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 *210court had no jurisdiction to enter it, but that the second part is an in personam 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. McElreath 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”, 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 *211if 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 conveyance of such interest in said property to plaintiff herein within sixty (60) days from the date hereof.” (Emphasis added.)

When we examine 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. Mc-Elreath, Sr., as well as James Dorsey McElreath, her former husband. After setting out the formal allegations as to parties, their residence, etc., 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 *212findings 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. McElreath, 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 McElreath in said estate and not yet paid to him,” and *213for 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 Okla. 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, 54 L. Ed. 65, 23 L.R.A. (N.S.) 924, 30 Sup. Ct. Rep. 3, 17 Ann. Cas. 853; Proctor v. *214Proctor, 215 Ill. 275, 74 N.E. 145, 69 L.R.A. 673; Burton-Lingo Co. v. Patton, 15 N. M. 304; 107 Pac 679, 27 L.R.A. (N.S.) 420; Hart v. Sansom, 110 U.S. 151, 28 L. Ed. 101; 3 Sup. Ct. 586; Carpenter v. Strange, 141 U.S. 87, 11 Sup. Ct. Rep. 960, 35 L. Ed. 640. It reversed and remanded the cause to the trial court.

West v. West, Okla., 268 P. 2d 250 (1954) 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 Okla. 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) and 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.

*215The majority seems to urge that having given effect to the Oklahoma decree regarding personal property, it would be incongrous 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, 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, 158 Tex. 196, 309 S.W. 2d 227 (1958), 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 *216said 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 Soc. for Crippled Children v. Hickok, 152 Tex. 578, 261 S.W. 2d 692, 43 A.L. 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 rule of “comity”, but did not recognize or apply the judgment of Ohio because it was contrary to our rule of decision as applied to Texas lands.

In our case, Art. 4638, R. C. S., 1925, expresses the public policy of this State, and such statute absolutely prohibits our Texas courts “to compel either party to divest himself or herself of the title to real estate.” The recent case of Hailey v. Hailey, 160 Tex. 372, 331 S.W. 2d 299, (1960) construed the quoted portion of Art. 4638 as prohibiting a divorce court from divesting the title to separate property out of either spouse. Public policy is a bar to comity, but not to the full faith and credit clause. Surely we are not going to hold that the Oklahoma courts can do what the Texas courts are prohibited from doing. Neither should we hold that by the subterfuge of a personal judgment the courts of Oklahoma can “compel either party to divest himself or herself of the title to [separate] real estate.” I cannot *217bring myself to penalize and discriminate against Texas citizens by such so called legal legerdemain.

I now attack the holding of the majority that the Oklahoma judgment herein is binding on the parties in this case under the doctrine of res judicata. Texas has not extended the doctrine of res judicata to foreign judgments in cases such as we have at hand. Petitioners cite the case of Milner v. Schaefer, 1948, Tex. Civ. App., 211 S.W. 2d 600, wr. ref., as authority for allowing a recovery herein. With this I do not agree. The Milner case was one decided under the full faith and credit clause of the Constitution of the United States. It was entitled to recognition and to be treated as res judicata by virtue of the fact that Milner had originated the suit in Colorado in which the judgment was rendered; and further, the court specifically held that the settlement agreement was a contract between Milner on the one hand and Schaefer and Lewis on the other for a settlement of the prior partnership affairs, whereby Lewis and Schaefer were to receive the Texas lands belonging to the partnership. The court recognized the rule stated in Massie v. Watts, 6 Cranch 148, 3 L. Ed. 181, that the full faith and credit clause under the Constitution of the United States must be accorded “in a case of fraud, of trust, or of contract,” even though land not within the jurisdiction of the court rendering the decree may be affected. The quotation from the case of Hall v. Jones, Tex. Civ. App., 54 S.W. 2d 835, no writ history (although the opinion in the Milner case erroneously stated that the writ was refused) conclusively shows the court was relying on the two propositions above stated. I would point out that in the Milner case there was no statute of this state which would prevent our courts from rendering the same decree in favor of Texas citizens. In our case at bar, there is such statute; namely, Art. 4638, R. C. S., 1925. This discussion is also applicable to show that the case of Hall v. Jones, supra, relied upon by petitioner, is not in point here and therefore not applicable nor controlling.

The majority opinion also argues that the judgment of the Oklahoma court should be given res judicata effect by a Texas court. In addition to the objections already raised in this opinion, there is a further reason why, in this case, the Oklahoma decision cannot be res judicata. It is settled law that res judicata applies only to a later suit between the same parties or their privies. 30A Am. Jur. § 397, 50 C.J.S. § 763. In the Oklahoma case — a divorce action — the only parties were Evelyn Ann Mc-Elreath and James Dorsey McElreath. In the instant suit here *218in Texas, the executors and administrators of the Estate of A. R. McEIreath, Deceased, are also parties. The plaintiff is asking a judgment against them, as well as against her former hus1band. Clearly the Oklahoma suit could not be res judicata as to them, since they were not parties to that suit and are not in privity with any such party.

The doctrine of res judiciata permits no inquiry as to the correctness or irregularity of the judgment. Under this doctrine a judgment may be attacked only if it is void, or was procured through fraud. “No principle of res judicata is more fundamental than that the conclusiveness of a judgment is not vitiated by errors committed by the rendering court.” Milliken v. Meyer, 311 U. S. 457; Fauntleroy v. Lum, 210 U. S. 230, 28 Sup. Ct. 641, 52 L. Ed 1039. “The policy on which the doctrine of res judicata rests precludes an inquiry into the merits of the issues determined by the court [or the forum].” 34 Yale Law Journal 609. This is a well recognized and well accepted legal principle. That being true the case of Greer v. Greer, 144 Tex. 528, 191 S.W. 2d 848 (1946), most certainly does not recognize nor stand for the premise that this court recognizes res judicata as applicable to foreign judgments. In the Greer case Mrs. Greer sued Mr. Greer in a proper district court of Oklahoma for divorce and adjudication of title to lands involved in the Texas trespass to try title suit before this court. In the Oklahoma divorce cause, the divorce was granted and the Texas land adjudged to be her separate property. The husband appealed and the Oklahoma Supreme Court affirmed the trial court’s judgment. Thereafter the husband filed the trespass to try title suit in the district court of Wood County, Texas, against the wife to recover an undivided one-half interest in the identical Texas land which the Oklahoma Supreme Court had adjudged was the wife’s separate property. The wife answered and pleaded the Oklahoma judgment as res judicata of the issues in the suit. The trial court sustained this plea. The Court of Civil Appeals affirmed on the same theory advanced by the majority opinion herein. This court granted a writ of error on that identical point, but disposed of the case on another ground. This court failed to give the Oklahoma judgment the benefit of the doctrine of res judicata. This court examined the Oklahoma judgment, applied the Texas rules of law and decisions to that judgment- — not the Oklahoma rules — and held the description of the land insufficient and reversed and remanded the cause to the district court. This court recognized that the Oklahoma court had jurisdiction of the parties. Its reason was that accord*219ing to Texas — not Oklahoma authorities — the description of the land was insufficient. In other words, this Court applied the law of the situs of the land to the Oklahoma judgment and found that judgment void in accordance with the Texas rules of law. It paid no attention to the plea of res judicata by the plaintiff-wife, or the holdings on res judicata by both lower courts. This court examined the judgment of the Oklahoma court to determine if it was erroneous under our own law. This same rule should be followed in our present case. The Oklahoma judgment shows on its face that the Oklahoma court seeks to divest title to defendant’s separate real estate and vest title to one-third thereof in plaintiff. Applying the Texas law and decisions to that judgment it demonstrates that the Oklahoma judgment is void and of no force and effect so far as Texas land is concerned. Texas thus far has never recognized the res judicata doctrine in a case like this, and never should do so unless the Legislature materially changes our statutes.

The majority opinion relies most heavily on Professor Currie’s article (21 Univ. of Chicago Law Rev. 620), and only six cases out of the whole jurisprudence of the United States are relied on for its support. I shall now discuss those cases. The first case is Burnley v. Stevenson, 24 Ohio St. 474, 15 Am. Rep. 621. A sufficient answer to that case is that the Supreme Court of the United States — final arbiter of the full faith and credit clause of the Constitution of the United States — refused to be bound by the reasoning in the Burnley case, and repudiated it. Substantiating this holding are Fall v. Eastin, 215 U. S. 1, 30 S. Ct. 3, 54 L. Ed. 65, 23 L.R.A., N.S., 924, and many other cases in the United States Supreme Court following or recognizing Fall v. Eastin. Further, the Ohio court bases its decision on Massie v. Watts, 6 Cranch 148, 3 L. Ed. 181, Decisions of the Supreme Court, U. S., Curtis, Vol. 2, p. 345. The Ohio court says, “it appears from the record before us * * * that the subject matter of the bill on which the decree was rendered, [in the Kentucky court] was the enforcement of a trust and the specific performance of a contract to convey lands situate in the state of Ohio.” (Emphasis mine.) It then states the well recognized rule that in such cases chancery courts of one state have jurisdiction to enforce a trust, and to compel the specific performance of a contract in relation to land situate in another state, after having obtained jurisdiction of the persons of those upon whom the obligation rests. In our case Massie v. Watts does not apply, as the cause of action in Oklahoma is not embraced in the classes enumerated in Massie v. Watts.

*220Matson v. Matson, 186 Iowa 607, 173 N.W. 127, according to Professor Beale, was not a case where suit was brought to enforce the judgment of the State of Washington in Iowa, but a suit to set aside a conveyance of the land by the husband to a volunteer, on the ground that it was fraudulent with respect to his creditor; namely, his wife. In addition, I would point out that the Iowa court found that the statutes of Iowa and Washington regarding division of property on granting of a divorce were similar and that the husband committed a fraud on the Washington courts, and, therefore, the Iowa courts would carry out the personam provisions of the Washington judgment.

In the case of Mallette v. Scheerer, 164 Wis. 415, 160 N. W. 182, the Supreme Court of Wisconsin held that the laws of Illinois — where a foreign judgment had been rendered — and of Wisconsin were similar with respect to the division and disposition of real property on granting of a divorce. The Wisconsin court enforced the Illinois judgment under the full faith and credit clause of the Constitution of the United States because, Professor Beale says, the cause of action was brought upon a similar statute of Wisconsin, so the Wisconin judgment was upheld.

Bailey v. Tully, 242 Wisc. 226, 7 N. W. 2d 837, 145 A. L. R. 578, was a suit in a Wisconsin court against Tully and the administrator of the estate of Maude H. Downey for the purpose of declaring certain Wisconsin land a part of the estate of Maude H. Downey. Tully answered claiming title to the land under and by virtue of a certain deed from Maude H. Downey, et al. during her lifetime conveying the land to him. A California judgment was rendered in an action in that state against Bailey, et al. to cancel and annual two deeds given by Tully, et ux to Maude H. Downey, subsequent to her deed to Tully. Here we have another suit on a contract and for cancellation of a deed. This action also falls within the decision in Massie v. Watts, and as is demonstrated by our Texas case of Hall v. Jones, 1932, Tex. Civ. App., 54 S.W. 2d 835, no writ history. Tully v. Bailey is not in point, nor does it support the majority opinion on the facts of our case.

The case of Weesner v. Weesner, 168 Neb. 346, 95 N. W. 2d 682, not only does not support the majority view, but supports my view that the foreign decree should not be given effect, when to do so would be contrary to the statutes and therefore to the public policy of the state of the situs of the land. *221After discussing Fall v. Fall, 75 Neb. 120, 113 N. W. 175, which was affirmed by the U.S. Supreme Court as Fall v. Eastin, 215 U.S. 1, 30 S. Ct. 3, 54 L. Ed. 65, 23 L.R.A., N.S., 924, the court holds that a foreign judgment which adjudges title to land in another state will be given effect only “* * * if the related public policy of the situs state is in substantial accord with that of the other state.”

Simmons v. Superior Court, 96 Cal. App. 2d 119, 214 P. 2d 844, 19 A.L.R. 288, does not involve the enforcement or effect to be given to a foreign judgment dividing property in a divorce case. It only involves an action by a wife who had filed a divorce suit in Harris County, Texas, to stay proceedings in a divorce suit filed later by the husband in the Superior Court of California. The California suit had been removed to Federal Court and by it remanded to the California Superior Court, with a specific finding that both husband and wife were residents of Texas. The wife’s action for a stay was based on a prior suit between the same parties involving the same subject matter. This was sustained by the California appellate court. There was no real estate involved in the California action — only personal property, to wit, stocks and bonds. The court points out that since it has been judicially determined that both parties are residents of the State of Texas; that since the Texas court first acquired jurisdiction of the parties and the subject matter in controversy (the stocks and bonds); and that the Texas courts have the power, under the Texas law, to decree a division of personal property, both separate and community, the action in the California court should therefore be stayed.

We have heretofore cited Barber v. Barber, 51 Calif. 2d 244, 331 P. 2d 628, which refused to recognize an Oklahoma divorce decree similar to the one in our case. This indicates that California does not support the majority opinion.

There are no recognized texts which support the majority opinion. Professor Beale, The Conflict of Laws, 1935, Vol. 2, p. 1412, §445. 1 states “a valid judgment of a foreign country will not be enforced if an action on the original claim could not have been maintained because contrary to the public policy of the forum.” After discussing res judicata and citing Burnley v. Stevenson, supra, and two other cases, he proceeds “in many states upon a divorce the property of the spouses is ordered to be divided, including the land. If in such a case a state decrees the division or the conveyance of land in another state, its judgment is a nullity in the other state.”

*222Professor Walsh, Equity, 130, § 17, says that decrees may be enforced by action in equity in any other state in which personal jurisdiction over the defendant is secured provided the decree does not dispose of property in the state in which the later action is brought on principles differing from the law of that state; and concludes that the conflict in the cases are all reconciled by the principle of comity; “a state need not respect the foreign decree, but will do so, whether it is based on antecedent consensual obligations or not, when, and only when, the law involved is the same in both states•” (Emphasis added.)

Dean Pound, The Progress of the. Law-Equity (1920) , 33 Harv. Law Rev. 420, 423-425, states that finally, if foreign courts are allowed to create duties to convey land, when such duties are generally recognized as giving rise to equitable ownership as against everyone except purchasers for value without notice, “the result is to allow one state through its courts to create real rights in land in another state — and if it may do so by its courts, why not through its legislature?”

Professor Stumberg, Conflict of Laws, 2d Ed., p. 128, says “the most serious objection to a doctrine of compulsory full faith and credit to foreign equitable decrees is believed to be that a court might thus be compelled to order an act through the use of chancery process in a manner contrary to its local policy. Where, for example, the subject matter is land, it would be compelled to make dispositions of realty which might conflict with the policy of its local law. * * *” And further, Restatement of the Law: Confict of Laws, p. 530, § 449, (1) and (2):

“(1) A valid foreign judgment that the defendant do or refrain from doing an act other than the payment of money will not be enforced by an action on the judgment.
“ (2) In an action on the original claim, the effect of res judicata will be given to findings of fact in a prior suit between the parties in which a valid judgment was rendered requiring the defendant to do or refrain from doing an act other than the payment of money.”

In the case at bar there could be no suit on the original claim of Mrs. McElreath for an interest in Mr. McElreath’s separate estate because of the prohibition of Art. 4638.

*223Professor Currie recognizes that Professors Cook, Beale, Pound, Walsh and Stumberg disagree with his thesis which is the basis for the majority opinion. Professor Currie also recognizes that Professor Barbour, who, in 1919, originated the theory of the majority opinion would not enforce a foreign decree when “to do so would violate some fundamental policy of the state where the land is situated.” If Professor Currie’s theory is given effect in Texas, as advocated by the majority opinion, there arises the further question of satisfying the recording and registration laws of the situs of the land. Professor Currie, however, recognizes this defect and advocates that Congress pass a law to remedy this. 21 Chicago Law Rev. 664-665. The reasoning of the majority will apply to affect the title to Texas lands owned by nonresidents. In those states having rules of inheritance different from those in Texas, the majority decision will approve decisions of the courts of those states, where all the heirs may live, awarding the full title to Texas lands in direct contravention to our laws of descent and distribution.

Also, a Texas couple might have a homestead on Texas lands inherited by the wife from her parents — her separate property. Under our laws, Texas residents do not lose their place of domicile by living in another state under certain circumstances. Suppose such a couple goes to another state to go to school for two years. They have established a residence in the other state for the purpose of securing a divorce, but they have not lost their homestead rights. The divorce court in the other state grants the divorce, and then, by the same language we have in our instant Oklahoma judgment, awards the homestead to the husband. We will be bound to recognize such judgment by virtue of the majority opinion herein. Such examples can be multiplied many, many times, and I can never agree to such holding.

In conclusion, I believe we will have more certainty to land titles and less confusion if Texas continues her present policy of determining the title to Texas lands in accordance with its law and decrees, rather than permitting decrees of the 49 other states to affect titles to Texas lands.

I would affirm the judgments of both courts below.