Where there was a decree of a court of chancery for the
partition of real estate, an agreement to divide which had been
previously made, but one of the parties to the agreement had
conveyed all his interest in the estate to one of the complainants
and died before deeds of partition were executed, and the bill was
filed against his heirs simply for partition, the decree of the
court and deeds executed under it only operated upon the parties
jointly interested in the property.
Two of the heirs were nonresidents, and did not appear; the
third was an infant. Therefore, in an action of ejectment by the
heirs, evidence was admissible to show that the deed from their
ancestor had been obtained by fraud.
The proceedings in chancery did not involve this question, nor
was it adjudicated upon by the court. Nor is the question of fraud
appropriate to the proceeding in partition; if raised, the
proceedings are usually suspended and the question sent to a court
of law.
The recitals in the deeds of partition have no binding force
beyond what is derived from the decree.
The defendants were jointly interested with the complainants in
one parcel embraced in the partition suit. The ancestor having
conveyed away the property covered by the deed alleged to have been
fraudulently obtained, the heirs had no interest in the partition
of it.
These proceedings, being
in rem, only operated in
respect to the title as against them upon that part of the property
in which they had a joint interest.
This was an ejectment brought by the McCalls against Carpenter
and Reitz to recover six blocks, seventy-two lots, and one half
block, in Lamasco City, in the County of Vanderburgh, in the State
of Indiana, of which blocks and lots Carpenter and Reitz were in
possession.
The claim of the plaintiffs was founded upon the following
circumstances:
Prior to the 21st of March, 1840, certain persons were possessed
of the City of Lamasco, and also of the southeast quarter of
section 23, in town 6, south of range 11, west, consisting of
Page 59 U. S. 298
160 acres. They owned this property in the following
proportions, namely:
John Law, 1/8; William H. Law, 2/8; Boston and Indiana Land
Company, 1/8; Lucius H. Scott, 2/8; James B. McCall, 2/8.
On the 21st of March, 1840, the proprietors the Boston Land
Company subsequently acquiescing signed an agreement under seal, to
divide the town lots and also the quarter section amongst them. The
town lots were divided into eight subdivisions, whereof each
proprietor of 2/8 had two, and the quarter section was also divided
into eight parts, allotted in the same proportion.
Before deeds of partition could be exchanged, McCall sold and
conveyed to Hugh Stewart all his undivided interest in the town
property, without including his share in the quarter section. This
deed purported to be executed on 18th June, 1840. It was not in the
record, being offered in evidence upon the trial, but rejected.
Shortly after the execution of this deed to Stewart, McCall
died, leaving three infant children, two of whom were nonresidents
of the state, the lessors of the plaintiff in error. These children
thus became the unquestioned heirs of their father's interest in
the quarter section, which was not included in the deed to
Stewart.
In order to bring about a partition regularly, two bills ought
to have been filed, one for the partition of the town property, in
which the interest of the father of the infants appeared to be held
entirely by Stewart, they themselves having none, and the other by
their co-tenants in the quarter section in which Stewart had no
interest, and therefore should not have been a party.
It so happened, however, that at the March term, 1842, of the
Vanderburgh Circuit Court, a bill was filed by John Law, William H.
Law, Lucius H. Scott, and Hugh Stewart, in their own right, and
also the trustees of the Boston Land Company. The nature of the
bill and the proceedings under it are stated in the opinion of the
Court, as are also the proceedings in the ejectment which gave rise
to the case now under consideration.
MR. JUSTICE NELSON delivered the opinion of the Court.
The suit in the court below was an action of ejectment by the
plaintiffs to recover the possession of certain town lots in the
City of Lamasco. They proved on the trial that their father, James
B. McCall, was the owner of an undivided fourth
Page 59 U. S. 299
of a certain part of said city, and had been in the possession
of the same, and died in 1840, and that they were his heirs at
law.
The defendants set up in bar of the action certain proceedings
in partition embracing the premises in question in the Circuit
Court of the fourth Judicial District of Indiana.
The bill in partition was filed by the tenants in common of the
town lots with McCall in his lifetime against his children and
heirs, the present plaintiffs. The two sons were nonresidents of
the state at the time, and did not appear or answer to the bill.
The daughter was a resident of the state, and was served personally
with the subpoena. She and the younger brother were under age, for
whom guardians
ad litem were appointed to the court.
The bill, after setting out the interests of the respective
tenants in common and that partition had been agreed upon between
them, describing particularly the manner in which the partition was
to be made and the portions assigned to each in the arrangement,
charges that after the agreement, J. B. McCall sold and conveyed
all his undivided interest, to-wit, one undivided fourth part of
the town property, to Hugh Stewart for the sum of $11,500, and that
shortly afterwards, and before he executed deeds of partition,
according to the agreement, departed this life leaving three
children, his heirs at law, James B. McCall, nonresident of this
state, and Henry McCall, also a nonresident, and Mary S. McCall,
who are infants under the age of twenty-one years. The bill further
charges that the several proprietors, including Stewart, the
grantee of McCall, had already interchanged deeds of partition,
according to the agreement, or were ready to do so, and that they
were ready to execute to the heirs deeds of all their right to
subdivision No. 3 and 6 of the southeast quarter of section
twenty-three, in town, 6, and of all other portions to which the
heirs were entitled, and then closes by stating that
"Inasmuch as your orators are unable to obtain relief in the
premises except by an interposition of the court of chancery, they,
for the purpose of perfecting their several titles to their
respective portions of said property pursuant to the agreement in
partition, pray that the heirs be made defendants; that a guardian
ad litem be appointed for the two infant heirs that they
may answer the bill, and if the same should be found true, that the
court would appoint three commissioners to make deeds of partition
&c."
The bill was taken as confessed against the adult heir and
against the others upon the answer put in by the guardian, no
proof, for aught that appears, having been given. The court decreed
that the prayer of the complainants be granted and
Page 59 U. S. 300
that C. D. Bourne, C. Baker, and J. E. Blythe be commissioners
to make deeds &c., to the complainants, agreeably to the
partition mentioned in the bill and pursuant to, and agreeable with
the said sale and conveyance made by James B. McCall, deceased, of
his undivided interest in said town property to the complainant
Hugh Stewart.
Deeds were executed in pursuance of the directions in the decree
and reported to the court and confirmed.
It appeared that McCall, besides being a joint owner in the town
property which he had conveyed to Stewart, also owned, jointly with
the complainants, except Stewart, one-fourth of the southeast
quarter of section No. 23, township 6, adjoining the town, and
which descended to his heirs and was embraced in the bill of
partition.
The counsel for the plaintiffs, when this record of partition
was offered in evidence by the defendants, objected to the
admission on the ground that the decree was void for want of
jurisdiction of the court, and also for fraud apparent on the face
of the proceedings. The objection was overruled. It appeared that
the defendants claim title from Stewart, the grantee of McCall.
They then rested, and the counsel for the plaintiffs then
produced and read the conveyance from their father to Stewart
mentioned in the bill of partition, and offered to prove that the
conveyance was obtained by fraud on the part of Stewart and also
that, at the time of its execution, their father was of unsound
mind and incapable of making a valid contract; that said
unsoundness was well known to Stewart, and that he took advantage
of it in obtaining the deed; that the consideration of $11,500
mentioned was never paid, that $6,000 in depreciated state scrip
was all that was ever paid or agreed to be paid, and that the
defendants purchased of Stewart with full knowledge of all the
facts; that the real estate purported to be conveyed by the deed
was worth at the time at least $20,000.
To all which evidence the defendant's counsel objected on the
sole ground that the plaintiffs were barred by the record of the
proceedings in partition, which objection was sustained by the
court, and the evidence excluded.
The jury, under the direction of the court, rendered a verdict
for the defendants.
We think the court erred in excluding this evidence.
The binding effect of the decree in the chancery suit is sought
to be maintained upon the ground that the proceedings were
instituted not only for the purpose of making partition, but also
to quiet the title between the parties, and especially the title of
Stewart under the conveyance from McCall, and that the children
Page 59 U. S. 301
and heirs were made parties for this reason, and that the
proceedings in this aspect, being in the nature of proceedings
in rem, would operate upon the title and bind the heirs
whether they appeared or not, if notice had been given in
conformity with the statute or law of the state.
But we think the obvious answer to this view is that the bill
has not been framed in any such aspect or for any such purpose,
either in the body of it or in the prayer. There is no suggestion
of any imperfection in the title of Stewart under the deed of
McCall or of any imputation or questioning of the genuineness or
validity of it, nor does the prayer ask for a decree to confirm the
deed or the title to Stewart.
The only pretext for the ground now taken to bind the heirs is
in the allegation as follows, namely:
"As your orators are unable to obtain relief in the premises
except by the interposition of a court of chancery, they, for the
purpose of perfecting their several titles to the respective
portions of said property, agreeably with and in pursuance of said
agreement of partition, would respectively pray &c.,"
and then follows the prayer for partition.
Now it is manifest that this allegation refers simply to the
subject of providing for the mutual releases or conveyances of the
joint interest in the property, so that each might become vested
severally with the title to his respective share, and nothing
beyond this, as is further evinced by the prayer of the bill, which
is that if the allegations in the bill should be found true, not
that Stewart should be quieted in his title under McCall, but that
three commissioners be appointed to make the partition &c. So
in respect to the decree. It simply orders that the prayer of the
bill of the complainants be granted, appoints the commissioners,
and directs them to make the partition by the execution of the
deeds of conveyance, release, and partition to the complainants,
according to their respective rights &c.
The deeds of the commissioners have also been referred to as
helping out the binding effect claimed for these proceedings.
The deed of the commissioners to Stewart may be taken as a
sample of all of them. It recites their appointment, the object of
it, to-wit, execute the partition deeds &c., and adds: "and to
perfect the title of said Hugh Stewart to the interest heretofore
conveyed to him in said property, by the said McCall in his
lifetime;" they then go on and convey
"all the right, title and interest, claim and demand whatsoever
of the said James B. McCall, deceased, at the time of his death,
and of his heirs, naming the three defendants, since his decease,
or at any other time, and of all or any other heirs or heir
whatsoever, of the said
Page 59 U. S. 302
James B. McCall, deceased,"
&c., seeking to bind those not made defendants as well as
those who were.
The answer to all these recitals is that they have no binding
force or effect beyond what is derived from the decree of the court
appointing the commissioners, and as that simply conferred
authority on them to execute mutual conveyances and releases for
the purpose of making partition between the parties, any recital
going beyond this is nugatory. Neither should the simple
confirmation of the deeds by the court be construed as intending to
go beyond the terms and directions of the decree.
The case, then, is brought down to the question, so far as the
effect and operation of the chancery suit are concerned, whether or
not these defendants are estopped by the decree from impeaching the
deed of their father to Stewart. And in respect to this question we
may concede that, for the purposes of partition, the court, under
the statute and law of Indiana, had jurisdiction of the subject
matter and were competent to make the partition.
The point is whether or not the right of the plaintiffs to
impeach this deed was involved in these proceedings, so as to be
deemed
res judicata, and all further examination or
inquiry foreclosed.
As we have already seen, the question as to its validity was not
presented upon the pleadings in that suit, nor did it become the
subject of inquiry or examination in the course of the proceeding,
nor did it enter into the decree of the court in the determination
of the case. And the better opinion is that no such question could
have been raised by the defendants in that proceeding if they had
sought to invalidate the deed. The most that the court would have
been justified in doing in the usual course of proceeding would
have been to have stayed the suit in partition till the question
could have been settled at law. The proceedings in partition are
not appropriate for a litigation between parties in respect to the
title.
As to the binding effect of judgments or decrees, the general
rule is that the judgments of courts of concurrent jurisdiction are
not admissible in a subsequent suit unless they are upon the same
matter and directly on the point; when the same matter is directly
in question and the judgment in the former suit upon the point, it
will then be as a plea, a bar, or as evidence, conclusive between
the parties. 2 Phillips Ev. 13. So a judgment is conclusive upon a
matter legitimately within the issue and necessarily involved in
the decision. 4 Cow. 559; 8 Wend. 9; C. & H. notes, part 2,
note 22.
Testing the case by this principle, it seems quite clear that
the proceedings in partition constituted no defense to this
Page 59 U. S. 303
action; no question was made upon the deed by the pleadings, nor
any judgment given upon it; nor was any such question necessarily
involved in the partition suit.
Besides, two of the defendants, plaintiffs here, were
nonresidents of the state, and neither appeared, nor were served
personally with process. As to them, the proceedings were purely
in rem, and the decree acted only upon the
res or
subject matter. And as to the subject matter, the bill on its face
shows, that these two plaintiffs had no interest in or connection
with the partition, except as respected the southeast quarter of
section twenty-three. This tract was not included in the deed to
Stewart, and of course descended to the heirs. Being tenants in
common with the complainants, the decree of partition might operate
upon it and bind them. But, as to the premises now in dispute it
could have no effect, as it appears, by the averment of
complainants themselves, the defendants had no interest in it. The
title was in Stewart. The decree, therefore, operating simply
in rem, could only operate upon such interest or estate of
the defendant as was shown in the bill, and properly the subject of
the partition against them. Beyond this, it was ineffectual, either
as to its direct operation, or when in question collaterally.
Proceedings of this character are allowed to conclude the rights
of the absent party, only as it respects property, whether real or
personal, involved in the suit, the property of the party proceeded
against. They act upon the thing, and bind the party in respect to
it. Now that in this case, so far as the two nonresident defendants
were concerned, was their interest in the southeast quarter of
section twenty-three? They were strangers as regarded any other
piece or parcel of land involved in the proceedings.
Then, as to Mary, the daughter, the process was served
personally upon her; she was an infant, and appeared by a guardian
ad litem. But this was simply an appearance, as the
representative of her interest in the undivided parcel which had
descended to the heirs. The bill shows that she had no interest in
the partition, except as to this: all the other parcels of which
partition was sought belonged to other parties, and concerned them
alone; as to these, John Doe might have been made a party with as
much propriety as this defendant. It may be, as we have already
said, that these proceedings conclude the question of partition
from afterwards being agitated, a question which it is not now
necessary to decide; but we think it clear that they cannot
conclude the title even of a party to them, whom the proceedings
themselves show had no interest or concern in the question of
partition.
Page 59 U. S. 304
Upon the whole, after the best consideration we have been able
to bestow upon the case, we think the court erred in excluding the
evidence offered to impeach the deed of McCall to Stewart, and that
the judgment below should be reversed, and a
venire de
novo awarded.
MR. JUSTICE DANIEL and Mr. Justice CAMPBELL dissented.
MR. JUSTICE CAMPBELL.
The Circuit Court of Vanderburgh county, Indiana, exercising
chancery jurisdiction, in 1842, pronounced a decree, appointing
three commissioners to make deeds of conveyance, release, and
partition to the plaintiffs in the suit, of certain lots in the
Town of Lamasco, in that county, and which embrace the land
included in this suit, according to an agreement for a partition
made by a portion of the plaintiffs and James B. McCall, the
ancestor of the lessors of the plaintiff in this cause, and also of
a sale and conveyance by him to one Stewart of his undivided
interest in the property, and directed that the deeds should convey
the fee simple to the complainants respectively.
The deeds were executed by the commissioners, were reported to
the court, and were confirmed by an order.
This decree was rendered in a chancery cause, prosecuted by
persons who had held in common the site of the town of Lamasco with
McCall, and who had entered into the agreement, by which specified
lots were set apart to each of the tenants, and for which mutual
conveyances were to be made, and one Stewart, on whose behalf it
was alleged that, after the agreement, and before deeds were made,
McCall had sold and conveyed to him his entire undivided interest
in the tract.
The object of the bill was to perfect in the complainants,
according to the agreement of partition and the sale and conveyance
to Stewart, their titles. One of the children of McCall was served
with process, and two were called in by publication, and a guardian
ad litem was appointed for the minors. The prayer of the
bill was for the appointment of commissioners to make the
conveyances according to the agreement and the sale.
The defendants claiming to hold the lands under these
complainants, offered the record of the proceedings in evidence
upon the trial in the circuit court, which was opposed, for the
reason that the court had no jurisdiction, and for fraud, apparent
on the face of the bill, the evidence was admitted as conclusive of
the title, and an issue was formed on the bill of exceptions for
this Court.
The decree operates upon a title to lands within the county
Page 59 U. S. 305
and state where the circuit court, that rendered it, was held.
That court possesses, under the Constitution and laws of Indiana, a
general chancery jurisdiction, and a special authority to appoint
commissioners to execute decrees like the present. One of the
defendants was before the court by process, and was defended by a
guardian, and the others by publication, according to the
authorized practice of that court. This being the state of the
record -- the jurisdiction of the court spreading over the subject
matter, and embracing the parties -- the inquiry arises, on what
principle can its authority be impeached in a collateral
proceeding? It is said that, it being apparent form the bill that
James B. McCall had sold his entire interest in the Town of Lamasco
to Stewart, that Stewart might have completed his agreement for a
partition, and that the heirs of McCall, having inherited no
estate, were not proper parties to the bill, and that the deeds of
conveyance, release, and partition under the decree did not
conclude their rights. But who is to decide whether they were
proper parties to the bill, and whether it was proper to terminate
all contest upon the title by requiring them to release their
rights, whatever they might happen to be to the plaintiffs? Upon
whom was the duty devolved by the Constitution and laws of Indiana
to determine whether the bill was framed according to the course of
chancery practice, and the decree a proper expression of chancery
jurisprudence? Certainly not this Court, nor the Circuit Court of
the United States for Indiana.
A court of the State of Indiana, with a plenary jurisdiction in
chancery, having the subject matter and parties within that
jurisdiction, has pronounced the decree, from whence comes the
power of this Court to pronounce its jurisdiction usurped, and its
decree a nullity? This Court, of old, was accustomed to say
"that a judgment or execution irreversible by a superior court
cannot be declared a nullity by any authority of Law if it has been
rendered by a court of competent jurisdiction of the parties and
the subject matter, with authority to use the process it has
issued; it must remain the only test of the respective rights of
the parties to it."
And also
"the line which separates error in judgment from the usurpation
of power is very definite, and is precisely that which denotes the
cases where a judgment or decree is reversible only by an appellate
court, or may be declared a nullity collaterally, when it is
offered in evidence in an action concerning the matter adjudicated,
or purporting to have been so. In the one case it is a record
imputing absolute verity; in the other, mere waste paper."
35 U. S. 10 Pet.
449.
We have only now to ascertain the extent of the jurisdiction of
courts of chancery in the matters of partition and to quiet title
by removing dormant equities, and the effect of decrees in
Page 59 U. S. 306
such cases. The first branch of the inquiry is satisfactorily
answered by Judge Story. "In all cases of partition," he says,
"a court of equity does not act merely in a ministerial
character and in obedience to the call of the parties who have a
right to the partition, but it founds itself upon its general
jurisdiction as a court of equity, and administers its relief
ex aequo et bono, according to its own notions of general
justice and equity between the parties. It will therefore, by its
decree, adjust all the equitable rights of the parties interested
in the estate, and courts of equity, in making these adjustments,
will not confine themselves to the mere legal rights of the
original tenants in common, but will have regard to the legal and
equitable rights of all other parties interested in the estate
which have been derived from any of the original tenants in
common."
Such being the enlarged jurisdiction upon the subject matter,
the question arises as to the effect of the decrees upon the titles
that are or might have been involved in a suit of that nature.
In
Reese v. Holmes, 5 Rich.Eq. 531, the court
determined that the parties to such a record were concluded by the
decree from showing that they had a greater estate than, or one
derived from a different source from, that set out in the
proceedings and established by the decree.
The court said
"If any relievable fraud or mistake entered into the decree when
it was pronounced, the party affected by it might have been heard,
if he had come within a reasonable time, with a direct proceeding
to set the proceeding aside; but while it stands, it is the
standard to which every party taking under it must resort for the
measure of his rights, and cannot be set aside or modified
collaterally."
In
Stewart v. Migell, 8 Ind. Eq. 242, the court decide
that a bill cannot be supported to set aside a decree formerly made
between parties, though it be alleged that the facts found by the
court did not exist, and that the decree was conclusive, in respect
to the thing which the parties had, or admitted, or it was declared
they had, and also in respect to the share to which each was
entitled in severalty, and to the parcel so allotted. In
Mills
v. Witherington, 2 Dev. & B. 433, where land belonging to
one in severalty was included in the petition as land held in
common and allotted to another in severalty, it was held, in an
action of ejectment, that the lessor of the plaintiff, who had been
a party to the judgment, "was concluded, bound, and estopped, to
controvert anything contained in it." In
Clapp v.
Bromagham, 9 Cowen 537, the court said "that the judgment in
partition, it is true, does not change the possession, but it
establishes the title, and in an ejectment must be conclusive." 1
Md.Ch.Dec. 455; 14 Geo. 521; 17 Vesey 355; 29 Me. 128.
Page 59 U. S. 307
I do not consider it necessary to inquire whether the fact of an
absolute sale and a perfect conveyance by McCall to Stewart did not
relieve the heirs from the duty of completing the agreement of
their ancestor; nor do I consider it necessary to inquire whether,
having such a sale and conveyance, Stewart had a good case to go
into chancery to cut off possible but unpublished equities; nor do
I consider it necessary to inquire whether there was sufficient or
any evidence to support the decree. Those questions were all
subject to the jurisdiction of the Circuit Court of Vanderburgh
County, and might have been revised in the Supreme Court of
Indiana.
Those courts had entire jurisdiction of the parties and the
cause, and its decree cannot be collaterally impeached. I am
authorized to say that MR. JUSTICE DANIEL concurs in this
opinion.
* MR. JUSTICE CURTIS, apprehending that one of his connections
was interested in the subject matter of this case, did not sit
therein.