Williams v. Williams
162 P. 834
Or.
1917
Check Treatment

Opinion by

Mr. Chief Justice McBride.

1. The decree of the Superior Court of Napa County, California, was void so far as it attempted to adjudicate the title to lands in Oregon: 7 R. C. L. 1060; 32 Cyc. 674; Newton v. Bronson, 13 N. Y. 587 (67 Am. Dec. 97); Bullock v. Bullock, 51 N. J. 444 (27 Atl. 435); Bullock v. Bullock, 52 N. J. Eq. 561 (30 Atl. 676, 46 Am. St. Rep. 528, 27 L. R. A. 213); Proctor v. Proctor, 215 Ill. 275 (74 N. E. 145, 106 Am. St. Rep. 168, 2 Ann. Cas. 819, 69 L. R. A. 673); Gratton v. Weber (C. C.), 47 Fed. 852; Lindsley v. Union Silver Star M. Co., 26 Wash. 301 (66 Pac. 382); Clarke v. Clarke, 178 U. S. 186 (44 L. Ed. 1028, 20 Sup. Ct. Rep. 873); Courtney v. Henry, 114 Ill. App. 635; Wilson v. Braden, 48 W. Va. 196 (36 S. E. 367). No judgment of a court of another jurisdiction can have any effect per se upon the title to land. The only way in which the conveyance of the land beyond the jurisdiction of the court can be effected is by a decree in equity operating upon the person so as to coerce the party. The decree itself can have no direct operation upon the property: Carpenter v. Strange, 141 U. S. 87 (35 L. Ed. 640, 11 Sup. Ct. Rep. 960). The decree of the California court was not in personam, but attempted to operate directly upon the land, apparently upon the theory that the *63law of community property prevalent in California existed in this state. There are authorities to the effect that, where the court has jurisdiction of the parties, and the question as to a trust in land in another state is actually litigated, and the court decrees the specific performance by the trustee of the trust found to exist, such decree will he enforced by the courts of the state where the lands are situated: Burnley v. Stevenson, 24 Ohio St. 474 (15 Am. Rep. 621); Dunlap v. Byers, 110 Mich. 109 (67 N. W. 1067); Wood v. Warner, 15 N. J. Eq. 81; Mitchell v. Bunch, 2 Paige (N. Y.) 606, (22 Am. Dec. 669). It seems to be established by these and many other decisions that, where the court has the parties before it and actually renders a decree requiring one party to execute a conveyanee of real property in another state to the prevailing party, the courts of the latter state will treat such decree as valid so far as it defines the rights of the parties, and will enforce it. But the decree here is equivocal in this: That it does not appear clearly whether it is based upon the theory of a resulting trust arising by reason of Mrs. Williams having furnished the purchase money, whether it was given as a mere incident to the divorce in the same way that our law allows the prevailing party in a divorce suit one third of the realty owned by the party in fault, or whether it was based upon the theory that the law of community property common in California also prevailed here. In the view which we take of the facts in this case it is unnecessary to consider further the effect of the California decree.

Upon the other branch of the case we think the testimony largely preponderates in favor of the defendant, that the agreement set forth in her answer was made; that she paid more than one half of the *64purchase price of the land, and has never, by contract or otherwise, waived her right to it.

2. It is claimed that this alleged contract was void as against, public policy because the law in force in this state at the time required an applicant for the purchase of land to make an affidavit that he purchased the land for his own use, and not directly or indirectly for the use of another; but there is nothing in the testimony which indicates that the defendant contracted with the plaintiff to make any other or different affidavit from that required by the law, and if he violated his trust and made a false affidavit, it would be poor equity to allow him to take advantage of that fact after using his wife’s money to purchase the land. The substance of the contract could easily have been observed by his applying for 160 acres of the land in his own name and notifying his wife of the requirements of the Oregon law so that she might herself have filed a proper application accompanied with the required affidavit for the other 160 acres. It is not probable that a housewife in Michigan was so familiar with the Oregon laws as to know when she sent her husband out here that she herself must make the required affidavit. Indeed, it is not probable that the plaintiff knew this fact, except as every person is presumed to know the law. However this may be, to allow him now to take advantage of the irregularity in the application to defeat his wife’s claim to the land, which she furnished him the money to buy and actually paid for out of her own earnings, would be to permit him to come into court and to take advantage of his own wrong.

The decree of the Circuit Court is affirmed.

Affirmed. Rehearing Denied.

*65Mr. Justice Benson, Mr. Justice Burnett and Mr. Justice MoOamant concur. Mr. Justice Harris taking no part in the consideration of this ease.