Colt, J.
The plaintiff in support of his action, and to show a paramount title in Comer, in land conveyed with warranty by the defendant to Baldwin, under whom the plaintiff claims by warranty deed, produced a judgment recovered against him in a writ of entry in favor of Comer. Comer v. Chamberlain, 6 Allen, 166. When that suit was brought, the present plaintiff notified his immediate grantor, Baldwin, who assumed the defence, employed counsel therein, and notified the defendant, Preble, of the pendency of the action, and requested him to assume the defence. It does not appear that Preble took any part in the defence. Comer, who was an alien, but had become a naturalized citizen, claimed to hold the demanded premises as tenant by the curtesy. The case was decided upon an agreed statement of facts in which the true date of Comer’s naturalization was misstated. Judgment was recovered against the present plaintiff, and the question is upon the conclusiveness of that judgment against the defendant in this case.
In Boston v. Worthington, 10 Gray, 498, Metcalf, J. cites with approbation the law as thus laid down by Bell, J., in Littleton v. Richardson, 34 N. H. 187: “ When a person is responsible over to another, either by operation of law or by express contract, and he is duly notified of the pendency of the suit, and requested to take upon himself the defence of it, he is no longer regarded as a stranger, because he has the right to appear and defend the action, and has the same means and advantages of controverting the claim as if he was the real and nominal party upon the recorS. In every such case, if due notice is given to such person, the judgment, if obtained without fraud or collusion, will be conclusive against him, whether he has appeared or not.”
The defendant objects that notice of Comer’s suit was not properly served upon him, because it was given in the name of Baldwin instead of the plaintiff The strict formalities required m the writ of warrantia chartce and voucher, as used in the ancient common law warranty, are not required, to render the [374]*374judgment conclusive in an action upon the modern covenant of warranty. The question in these cases usually is, whether the defendant has had reasonable notice of the suit, and an opportunity to defend it. If he has, he is bound by the proceedings. It is not necessary that the notice should appear of record ; and no particular form of words is necessary. In some cases a verbal notice has been held sufficient; in others the presence of the defendant and his participation in the defence have been enough to render the judgment conclusive.
In this case Baldwin, having assumed the defence and employed counsel, was acting with the consent and at the request of the present plaintiff, Chamberlain, and it is perhaps a sufficient answer to the defendant’s objection that, while that relation existed, Baldwin is to be regarded as having been the attorney and agent of Chamberlain, to do all that properly pertained to the defence of that suit. By assuming the defence, Baldwin became privy if not a party to that judgment, and pending the suit a notice from him to the defendant, it seems to us, was quite as proper and effectual as if given in the name of Chamberlain. Under such a notice, with an opportunity to appear and defend, he cannot be deemed a stranger to the proceedings. Miner v. Clark, 15 Wend. 427. Rawle on Covenants, 200.
But the defendant further insists that the judgment is not conclusive upon him because founded on an agreed statement of facts which was untrue, in that it stated the date of Comer’s naturalization to be February 10th 1845, instead of July 5th 1847; and that this was a material inaccuracy, because, the latter being the true date of naturalization, and the land having been previously conveyed by his wife, Comer coufd not be tenant by the curtesy, and could not have recovered judgment, and so the plaintiff virtually admitted a fact which did not exist, and was material in the case.
It is plain that if the plaintiff had without suit acknowledged he title of Comer and paid the amount required to extinguish it he would have done so at bis peril, and could not now prevail against the defendant without proving the paramount title of Comer. To what, extent and in what manner must a party, who [375]*375is threatened with eviction by the holder of a paramount title, and who has notified his warrantor to come in and defend, resist the claim which is sought to be enforced by legal proceedings, in order that the judgment which may be rendered against him may be conclusive in a suit upon his covenant of warranty?
A faithful performance of the covenant to warrant and defend requires the covenantor, on notice, to appear and take upon himself the defence of the estate, when assailed by a paramount title. After suit brought and notice to him, the covenantor stands in a different relation to the party who has a right to look to him for indemnity. If he does not assume the defence, it is at least his duty to communicate all information in his power as to the validity of the plaintiff’s title. If he fails to. do so, if he stands by and permits a recovery for want of evidence of which he has knowledge, he cannot be permitted to show that the result would have been otherwise if the evidence had been produced, and so avoid the effect of the recovery in a suit against him. If he pays no attention to the notice, and turns his back upon the suit, he cannot when called upon to respond be permitted to prove that the defendant in the original suit would have prevailed if the defence had been conducted with a fuller knowledge of material facts. The judgment of courts must be based on the facts as they are presented. No doubt if the truth could always be fully and accurately known, many decisions would appear erroneous, but it is for the public interest that there should be an end of litigation; and parties and privies who have once had day in court cannot, by mere proof or offer of proof that the judgment was founded on error in fact, renew the controversy. Nor can it make any difference .hat the facts or some of them, in a proper case, were agreed by the parties, instead of being passed upon by the jury. Few trials before a jury are had without the agreement of parties or counsel to many matters thought not to be in controversy. The execution oí written instruments, the testimony of absent witnesses, and the date of the happening of a particular event, are of this class. A mistake in the admission, of any one such fact, if material, would be quite- as fatal in its effect upon the conclusiveness [376]*376of the judgment as an error in.an agreed statement of facts. Indeed, if the effect of the judgment is to be avoided in such cases, it is difficult to say that the existence of material evidence which the defendant failed to produce would not have the same effect. To come to this, it is evident, would be to open to litigation every judgment for eviction upon which the covenantee seeks indemnity from his grantor.
The judgment by which the plaintiff has been evicted is not to be impeached in an action against a grantor upon his covenants, who was duly notified, merely by proof of mistake in the conduct of the defence of the original suit, if there is no want of fidelity, and the judgment is free from fraud or collusion. In Jackson v. Marsh, 5 Wend. 44, it seems to be held that after notice to the covenantor and a request to defend, the covenantee is not bound to defend, and a judgment on default even is conclusive.
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Colt, J.
The plaintiff in support of his action, and to show a paramount title in Comer, in land conveyed with warranty by the defendant to Baldwin, under whom the plaintiff claims by warranty deed, produced a judgment recovered against him in a writ of entry in favor of Comer. Comer v. Chamberlain, 6 Allen, 166. When that suit was brought, the present plaintiff notified his immediate grantor, Baldwin, who assumed the defence, employed counsel therein, and notified the defendant, Preble, of the pendency of the action, and requested him to assume the defence. It does not appear that Preble took any part in the defence. Comer, who was an alien, but had become a naturalized citizen, claimed to hold the demanded premises as tenant by the curtesy. The case was decided upon an agreed statement of facts in which the true date of Comer’s naturalization was misstated. Judgment was recovered against the present plaintiff, and the question is upon the conclusiveness of that judgment against the defendant in this case.
In Boston v. Worthington, 10 Gray, 498, Metcalf, J. cites with approbation the law as thus laid down by Bell, J., in Littleton v. Richardson, 34 N. H. 187: “ When a person is responsible over to another, either by operation of law or by express contract, and he is duly notified of the pendency of the suit, and requested to take upon himself the defence of it, he is no longer regarded as a stranger, because he has the right to appear and defend the action, and has the same means and advantages of controverting the claim as if he was the real and nominal party upon the recorS. In every such case, if due notice is given to such person, the judgment, if obtained without fraud or collusion, will be conclusive against him, whether he has appeared or not.”
The defendant objects that notice of Comer’s suit was not properly served upon him, because it was given in the name of Baldwin instead of the plaintiff The strict formalities required m the writ of warrantia chartce and voucher, as used in the ancient common law warranty, are not required, to render the [374]*374judgment conclusive in an action upon the modern covenant of warranty. The question in these cases usually is, whether the defendant has had reasonable notice of the suit, and an opportunity to defend it. If he has, he is bound by the proceedings. It is not necessary that the notice should appear of record ; and no particular form of words is necessary. In some cases a verbal notice has been held sufficient; in others the presence of the defendant and his participation in the defence have been enough to render the judgment conclusive.
In this case Baldwin, having assumed the defence and employed counsel, was acting with the consent and at the request of the present plaintiff, Chamberlain, and it is perhaps a sufficient answer to the defendant’s objection that, while that relation existed, Baldwin is to be regarded as having been the attorney and agent of Chamberlain, to do all that properly pertained to the defence of that suit. By assuming the defence, Baldwin became privy if not a party to that judgment, and pending the suit a notice from him to the defendant, it seems to us, was quite as proper and effectual as if given in the name of Chamberlain. Under such a notice, with an opportunity to appear and defend, he cannot be deemed a stranger to the proceedings. Miner v. Clark, 15 Wend. 427. Rawle on Covenants, 200.
But the defendant further insists that the judgment is not conclusive upon him because founded on an agreed statement of facts which was untrue, in that it stated the date of Comer’s naturalization to be February 10th 1845, instead of July 5th 1847; and that this was a material inaccuracy, because, the latter being the true date of naturalization, and the land having been previously conveyed by his wife, Comer coufd not be tenant by the curtesy, and could not have recovered judgment, and so the plaintiff virtually admitted a fact which did not exist, and was material in the case.
It is plain that if the plaintiff had without suit acknowledged he title of Comer and paid the amount required to extinguish it he would have done so at bis peril, and could not now prevail against the defendant without proving the paramount title of Comer. To what, extent and in what manner must a party, who [375]*375is threatened with eviction by the holder of a paramount title, and who has notified his warrantor to come in and defend, resist the claim which is sought to be enforced by legal proceedings, in order that the judgment which may be rendered against him may be conclusive in a suit upon his covenant of warranty?
A faithful performance of the covenant to warrant and defend requires the covenantor, on notice, to appear and take upon himself the defence of the estate, when assailed by a paramount title. After suit brought and notice to him, the covenantor stands in a different relation to the party who has a right to look to him for indemnity. If he does not assume the defence, it is at least his duty to communicate all information in his power as to the validity of the plaintiff’s title. If he fails to. do so, if he stands by and permits a recovery for want of evidence of which he has knowledge, he cannot be permitted to show that the result would have been otherwise if the evidence had been produced, and so avoid the effect of the recovery in a suit against him. If he pays no attention to the notice, and turns his back upon the suit, he cannot when called upon to respond be permitted to prove that the defendant in the original suit would have prevailed if the defence had been conducted with a fuller knowledge of material facts. The judgment of courts must be based on the facts as they are presented. No doubt if the truth could always be fully and accurately known, many decisions would appear erroneous, but it is for the public interest that there should be an end of litigation; and parties and privies who have once had day in court cannot, by mere proof or offer of proof that the judgment was founded on error in fact, renew the controversy. Nor can it make any difference .hat the facts or some of them, in a proper case, were agreed by the parties, instead of being passed upon by the jury. Few trials before a jury are had without the agreement of parties or counsel to many matters thought not to be in controversy. The execution oí written instruments, the testimony of absent witnesses, and the date of the happening of a particular event, are of this class. A mistake in the admission, of any one such fact, if material, would be quite- as fatal in its effect upon the conclusiveness [376]*376of the judgment as an error in.an agreed statement of facts. Indeed, if the effect of the judgment is to be avoided in such cases, it is difficult to say that the existence of material evidence which the defendant failed to produce would not have the same effect. To come to this, it is evident, would be to open to litigation every judgment for eviction upon which the covenantee seeks indemnity from his grantor.
The judgment by which the plaintiff has been evicted is not to be impeached in an action against a grantor upon his covenants, who was duly notified, merely by proof of mistake in the conduct of the defence of the original suit, if there is no want of fidelity, and the judgment is free from fraud or collusion. In Jackson v. Marsh, 5 Wend. 44, it seems to be held that after notice to the covenantor and a request to defend, the covenantee is not bound to defend, and a judgment on default even is conclusive. And when the covenantee acts in good faith under the advice of counsel after an action is commenced and notice given, with failure of the defendant to respond, it is difficult to see why he should be obliged to go through with the form of a trial which he is advised must result in a recovery against him.
The case of Kelly v. Dutch Church, 2 Hill, 114, cited by the defendant, was a case where the plaintiff failed to establish that he was evicted by a title paramount to that of the defendants, at the time of the defendants’ conveyance. He not only failed to do this, but he proved that the recovery was had against him upon a right or title subordinate to that of the defendants, and which the plaintiff was estopped to deny by the acts and declarations of those under whom he claimed title. The recovery in Comer’s suit was on the sole ground of iitle paramount to that conveyed by the present defendant. It was a case mani - festly proper to be presented on an agreed statement of facts. Both parties regarded the case as presenting mainly a question of law upon facts the nature of which hardly admitted of serious controversy before the- jury. The error in regard to the date of Comer’s naturalization was innocently made; it was perhaps not thought material whether it occurred before or after the con veyance by his wife. It is now argued that, though it occurred [377]*377after the conveyance, yet be was equally entitled to his tenancy by the curtesy. He was naturalized before his wife’s death, and before the birth of issue. It was indeed held by the court in Comer v. Chamberlain to be sufficient to enable the demandant to recover “ if the essential requisites of a tenancy by the curtesy existed during the lifetime of the wife; ” but the chief justice was then speaking evidently of the elements necessary to entitle the plaintiff to a tenancy by the curtesy at common law, and without reference to his alienage at the time of his wife’s conveyance. And though it is said by Lord Coke that naturalization cancels all defects and is allowed to have a retrospective energy which simple denization has not, and if a man take an alien to wife and afterwards sell his land and his wife be naturalized she shall be endowed of the lands held before eviction ; Co. Litt. 33 a, 129 a; yet it has been held in this country that the peculiar phraseology of our naturalization laws gives them no retroactive force to affect the rights of third persons previously acquired, in analogy to the simple denization of England. Priest v. Cummings, 20 Wend. 338.
But without discussing this point further, and assuming but not deciding that the mistake in the date of naturalization was a mistake material to the recovery by Comer in that suit, we are )f opinion that the judgment in that case is conclusive upon the defendant in this, notwithstanding the mistake.
Exceptions sustained.