On motion for Rehearing.
While the original opinion states at great length the reaáons for our conclusions and copiously cites authorities to sustain them, the sincerity and earnestness of appellant’s counsel and the ability evinced in pressing the points contended for upon the court, have induced us to give further expression to our views and cite additional authorities to support them.
That the district court of El Paso county had jurisdiction of this particular case, we believe in view of the authorities cited in the original opinion too clear for argument, But the crucial question is whether the court in Chihuahua, Mexico, had jurisdiction to render the judgme'nt which is pleaded in bar of this action.
The insistence of appellant is that the suit there was an action in rem distinguished from one in personam, in view of which the jurisdiction of the foreign court to render such judgment is apparent from the law.
“The rule is elementary that no sovereignty can extend the process of its courts beyond its territorial limits, or subject either the person or property of a party to its judicial decisions or judgments, when neither he nor his property is within its boundaries. Any attempted exercise of such authority would be beyond the power of the sovereignty to grant, and, as all judicial authority must flow from the state, its grant of power is necessarily defined by its boundaries and no service outside would confer any jurisdiction of the person or property of a defendant so situated.” Bank of China v. Morse, 168 N. Y. 458, 61 N. E. 774, 56 L. R. A. 139, 85 Am. St. Rep. 676.
But the evidence shows that the money of the appellees, Ross and Masterson, which was subjected to said judgment, was within the territorial jurisdiction of the court which rendered said judgment, as well as the land for which the money was on deposit as a part of the purchase price. Hence appellant’s contention that the action brought by the vendors of the land against these appel-lees in Chihuahua, did not come within the general rule stated, but fell within its exception, it being in rem and not in personam.
*240[28] It Is undoubtedly the rule that, “As to proceedings in rem, suits to enforce liens or to determine conflicting claims of title, or to recover possession of property, whether real or personal, or to obtain judgment .enforceable against property which has been seized under attachment or other mesne process, it is within the power of every state or country to provide methods of serving process which will affect all persons whether residents or not.” Note to Alley v. Caspari, 6 Am. St. Rep. 179-190; Arndt v. Griggs, 134 U. S. 316, 10 Sup. Ct. 557, 33 L. Ed. 918; Wehrman v. Conklin, 155 U. S. 314, 15 Sup. Ct. 129, 39 E. Ed. 167.
[29] But while the money of the defendants, appellees here, was within the territorial jurisdiction of the court of Chihuahua, it was not, as found by the trial court, impounded, attached, seized, proceeded against or in any manner or form brought within the custody or control of the court prior to the time the judgment was entered, nor was the judgment against said money. While it has been held, and properly so, in a case that a nonresident can be sued in the courts of this state when he has effects here, without bringing his effects before the court by attachment or some similar process, to await final judgment (Rice v. Peteet, 66 Tex. 568, 1 S. W. 657), it was in a case where jurisdiction of the person of the defendant had been obtained. But we know of no ease where it has been held that personal property, though within the territorial bounds of a court’s jurisdiction, which has not been impounded or brought before the court by some process to await its final judgment, can be subjected to a personal judgment against its foreign owner, upon whom constructive service only was had and who never submitted his person to the jurisdiction of the court. And we dare say none can be found.
[30] Whichever way that case may be turned and in whatever light it may be viewed we can make nothing out of it except an action in personam. As no personal service was obtained on J. O. Ross, nor his property proceeded against, impounded or brought within the custody of the court, to be subjected to its decree or order, he not having voluntarily submitted his person to the jurisdiction of the court, such judgment was as to him absolutely void. And upon further reflection we have concluded that, notwithstanding his voluntary appearance in the case, it was void as to Masterson also. Our reason for so holding, is this: The contract for the sale and purchase of the land was an entirety in which all parties to its execution were necessary parties to a suit to compel its specific performance. To illustrate, one of the vendors of the land could not alone as plaintiff enforce its performance against the vendees as defendants; nor, vice versa, could one of the vendees, without the other, enforce its performance against the vendors. In other words, all the parties to the contract, both the vendees and vendors, would be necessary to an action for specific performance whether such suit was brought by the vendors or the vendees. And the action, being in personam, it was as essential that jurisdiction of the person be obtained over the person of them all as it was for all of them to be made parties to the suit. Therefore, as jurisdiction was not obtained over the person of Ross, specific performance of the entire contract could not be enforced against Masterson. Eor he never contracted to take and pay for all the land, nor could he be compelled to take and pay for a part of it. He was entitled under the law to an undivided interest with Ross in every foot of it upon the contract being performed by them, whether voluntarily or perforce of a judicial decree; and without the jurisdiction of the person of Ross having been obtained such a decree could not be rendered. No court in any civilized country will undertake by its decree to make and enforce a contract for any one different from the contract he has made himself, yet this would be the effect of the judgment in question were it held enforceable against Masterson and void as to Ross. Hence, as it is void as to Ross for want of jurisdiction of the court over his person, it is necessarily void as to Masterson.
Just one other matter and we will close this opinion with the assurance that we have given the important questions presented as careful consideration as the limited time at our command admitted of, and with the consolation -that if we have in' any way erred in our disposition of such questions, such error may be corrected by a higher and abler court. It is contended that the decision of this and the district court’s conclusions of fact as to the law of the státe of Chihuahua, Mexico is against the weight of the evidence as shown by the written law of that state and the expert testimony adduced upon the subject.
[31] While the question of what the law is in a foreign country in its application to a question under consideration is one of fact, we may be pardoned for quoting from a late authority showing the office of the trial judge regarding the .evidence introduced to prove such law, which is this: “The fact that the question is one of law naturally places it, in many points of administration, within the hands of the presiding judge, familiar with the decisions of questions of domestic law. His finding is not absolutely controlled by the testimony of the witness, even when un-contradicted. Thus, the most unequivocal testimony of a skilled witness as to the construction given to the foreign law, cannot control the court’s understanding of the meaning of the written law and the plain decisions of the foreign court. In other words, the presiding judge may examine for himself the documents which the skilled *241witness refers to as a correct statement of the foreign law, ‘not as evidence per se but as part of the testimony, of the witness.’ That is, the court of the forum is not relieved of the duty of construing the written document as would be imposed in case of any other legal writing even though the work of translation has been performed by a witness familiar with the foreign language. The written document bearing on the foreign law is read to the court; it cannot, be read to the jury. A witness will not be permitted to testify to the construction given a statute, if its meaning is regarded by the presiding judge as being perfectly plain, and there has been no official judicial decision.” Chamberlayne’s Mod. Law of Evidence, § 900.
This being the rule, great weight should be given to the findings of fact by the trial judge as to the law of the state of Chihuahua, Mexico, upon its bearing upon this case. It cannot be said by us as a matter of law that his findings of fact, or any of them are erroneous; for to do so we would have to say that there was no testimony reasonably tending to support them. This we cannot do, especially in a case like this where the burden was upon appellant to show that the decree in the Chihuahua ease and proceedings thereunder was a defense to this action. The judge may not have believed a word of the expert witnesses’ testimony, nor was he bound to believe it (McCormick v. Kampmann, 109 S. W. 492; Id. 102 Tex. 215, 115 S. W. 24); but could, if he thought the construction placed upon the written law of Chihuahua by the experts was incorrect, ignore it and construe the law himself and determine the effect of the decree and proceedings in question in view of his own construction. This, his ability, long-continued practice as a lawyer and experience as a judge on the boundary line between the states of Texas and Chihuahua, eminently fitted and capacitated him to do.
The conclusion cannot be escaped that Banco Minero lent itself to a fraudulent scheme concocted by and pushed through the courts of Chihuahua by influential citizens of Mexico to wrongfully deprive the plaintiffs in this case, who are citizens of Texas, of money they had deposited with it on conditions which were never fulfilled, by voluntarily, .under a void decree, without protest or an effort to protect them in their property, handing it out to one who had not the shadow of a right to one cent of it.
If Banco Minero could not protect ap-pellees in their property by an appeal to the courts of that country, because they were deaf to the cry of justice, it cannot expect the courts of this state to ignore the wrong done its citizens through the medium of such a court by giving verity and sanction to one of its void judgments.
The motion is overruled.