MORIARTY, C.
This action was brought by the respondents for the possession of a quarter section of land in Sanborn county, -damages for .detention, and for the value of the use and occupancy of t'he land.
Appellant, in -his answer, denies that the respondents own the land or are entitled to- possession thereof. Pie asserts his own title and rightful possession-, and he alleges -certain a-cts of respondents which, he claims, should estop them from asserting title adverse to him.
Prom a judgment in favor of respondents, this appeal is taken.
The relevant facts are as follows: It is admitted that one Rachael J. Deming was the owner of the- land in controversy in January, 1909,. subject to mortgage 'liens aggregating $2,100, and that the claims o-f all parties to this action are based upon the title of said Rachael J. Deming, as their common source of title.
[486]*486On the 9th day of January, 1909, the said Rachael J. Deming, was a widow. She had then living one daughter, Della Tompkins, one of the respondents herein, three 'sons, the respondents William M. Deming, John Deming, and Mark Deming, and one granddaughter, the respondent Arstein Jaquish, who was the only child of Lizzie Deming Jaquish, who died in 1894, and' who was a daughter of Rachael J. Deming.
On said 9th day of January, 1909, Mr. D. D-. Baldwin, a lawyer and notary public, was at the home of Rachael J. Deming, who was then confined to- her bed by a- protracted illness. Mr.. 'Baldwin had a conversation with Rachael J. Deming, in which she stated that she wished to convey the land now in controversy, ■to her son William- M. D'eming, but, as a provision for her other children, William should pay her son '¡John Deming, and her daughter, Della Tompkins, $250 each, and her son Mark Deming, $1,000. She further stated that she had taken care of and provided for her granddaughter, Arstein Jaquish, during her infancy and until she was seven years old, and' that this granddaughter had had all she reasonably could expect from the grandmother’s estate.
As a. result of this conversation, Mr. Baldwin drew up a warranty deed in which Rachael J. Deming was named a grantor and William M. Deming was named as grantee, and which purported to convey the land now in- controversy. This deed Rachael J. Doming signed and acknowledged before said D. D-. Baldwin as notary public.
At the same time that said deed was so drawn and' signed, Mr. Baldwin prepared three notes, one for $250, payable to Della Tompkins, one for $250, payable to John Deming, and one for $1,000, payable to Mark Dteming. William M. Deming then and there signed said three notes, and it is admitted that he afterwards paid them.
Respondents Della Tompkins and William. M. Deming were present during the drawing and signing of the deed and notes, and during all the conversation leading up to their preparation and signing.
Mr. Baldwin took the deed and notes with him when he returned to his .office, without receiving any instructions as to de[487]*487livery of the papers. He kept the deed in his possession until January 7, 1910, when he filed it for record in the office of the register of deeds of Sanborn county. After the recording of the deed, it was delivered to William'M. Deming by Mr. Baldwin.
Three days after she signed and acknowledged this deed, Rachael J. Deming died intestate, leaving as her only heirs at law ihe five respondents herein.
At the time of his mother’s death the respondent William M. Deming was residing, with his family, on the land in controversy and he continued to reside thereon until on or about March 1, 1917. During the time h,e so occupied the land, he paid off the $2,100 of mortgages which incumbered the land at the date of his mother’s deed to him, but, on the strength of his record title, he placed other ¡mortgages on the land, of which a mortgage for $6,000 still remains unpaid. During the time he occupied the land, he expended about $900 in improvements consisting of buildings and additions to buildings which he erected upon the land. He also paid the taxes on the land and interest on the mortgage indebtedness.
On November xi, 1916, William M. Deming, in addition to the $6,000 secured by a mortgage on the land in. controversy, owed numerous debts aggregating something over $6,000. On that day, he executed and delivered to the grantees named1 therein a warranty deed conveying the land in controversy to- A. W. Paulson, E. B. Raesly, and A. N. Johnson, as trustees. The -deed was silent as to nature of the trust, but the evidence shows that it was understood between the parties to the deed that the trustees were to have the right to sell the land, apply the proceeds to the payment of Deming’s debts, and pay to Deming any excess there might be after paying the debts. About March 1, 1917> William M. Deming moved off the land.in controversy, and the trustees rented the land to one Johnson for the farming season of 1917-In October, 1917, the trustees sold the land to the appellant for $12,800. giving him a purchase-money contract which has never been recorded. Appellant Nielson took possession of the land in March, 1918, and remained in possession thereof up to the time ¡of trial of this action. He paid the trustees $500 of lb' purchase price at the date oí the contract, $2,500 on March 12, 19x8, and $3,800 on March 1, 1919, completing the payment of
[488]*488the purchase-price named in the contract. No- deed conveying the land to the appellant_ has ever been executed by the trustees. While in possession of the land, appellant paid taxes and interest and expended considerable- amounts for improvements placed upon the land.
In January, 1917, the respondent Arstein Jaquish began an action in the circuit court of Sanborn county, .in which William M. Deming, John Deming, Mark Deming, A. W. Paulson, E. B. Raesly, and A. N. Johnson were named as defendants. In her comp’aint in this action, the plaintiff set forth the facts as to her relationship to Rachael J. Deming, deceased, and alleged that o-n 12th day of January, 1909, Rachael J. Deming was the owner of the land in controversy and of certain personal property, and on that day died intestate, that no proceedings to probate the estate of said Rachael J. Deming were ever had, but that there are no claims ag-ainst the estate ,and that she (the said plaintiff), upon the death of her said ancestor, became the owner of an undivided one-fifth interest in the property of said estate and is still entitled thereto-; and she asks that the title to an undivided one-fifth interest in the land be'quieted as against the defendants, that the right, title, and interest of all the -defendants in said land be determined, and that the interest of the defendants Paul-son, Raesly, and Johnson in the said land be adjudged to- be inferior to plaintiff title in and to an undivided one-fifth interest therein.
- The defendant Della Tompkins made no appearance in the action. The defendant William M. Deming, in his answer, admits the relationship of the plaintiff to Rachael J. Deming, deceased, but - alleges that, on the date of the death- of said Rachael J. Deming, he was the owner in fee simple and in possesrio-n of said land and continued to- be the owner thereof until November 11 19x6, when he -conveyed said premises to defendants Paulson, Raesly, and Johnson, in trust for the use of certain creditors, and that said- trustees still have the title- to and possession of the land for such use and purpose.
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MORIARTY, C.
This action was brought by the respondents for the possession of a quarter section of land in Sanborn county, -damages for .detention, and for the value of the use and occupancy of t'he land.
Appellant, in -his answer, denies that the respondents own the land or are entitled to- possession thereof. Pie asserts his own title and rightful possession-, and he alleges -certain a-cts of respondents which, he claims, should estop them from asserting title adverse to him.
Prom a judgment in favor of respondents, this appeal is taken.
The relevant facts are as follows: It is admitted that one Rachael J. Deming was the owner of the- land in controversy in January, 1909,. subject to mortgage 'liens aggregating $2,100, and that the claims o-f all parties to this action are based upon the title of said Rachael J. Deming, as their common source of title.
[486]*486On the 9th day of January, 1909, the said Rachael J. Deming, was a widow. She had then living one daughter, Della Tompkins, one of the respondents herein, three 'sons, the respondents William M. Deming, John Deming, and Mark Deming, and one granddaughter, the respondent Arstein Jaquish, who was the only child of Lizzie Deming Jaquish, who died in 1894, and' who was a daughter of Rachael J. Deming.
On said 9th day of January, 1909, Mr. D. D-. Baldwin, a lawyer and notary public, was at the home of Rachael J. Deming, who was then confined to- her bed by a- protracted illness. Mr.. 'Baldwin had a conversation with Rachael J. Deming, in which she stated that she wished to convey the land now in controversy, ■to her son William- M. D'eming, but, as a provision for her other children, William should pay her son '¡John Deming, and her daughter, Della Tompkins, $250 each, and her son Mark Deming, $1,000. She further stated that she had taken care of and provided for her granddaughter, Arstein Jaquish, during her infancy and until she was seven years old, and' that this granddaughter had had all she reasonably could expect from the grandmother’s estate.
As a. result of this conversation, Mr. Baldwin drew up a warranty deed in which Rachael J. Deming was named a grantor and William M. Deming was named as grantee, and which purported to convey the land now in- controversy. This deed Rachael J. Doming signed and acknowledged before said D. D-. Baldwin as notary public.
At the same time that said deed was so drawn and' signed, Mr. Baldwin prepared three notes, one for $250, payable to Della Tompkins, one for $250, payable to John Deming, and one for $1,000, payable to Mark Dteming. William M. Deming then and there signed said three notes, and it is admitted that he afterwards paid them.
Respondents Della Tompkins and William. M. Deming were present during the drawing and signing of the deed and notes, and during all the conversation leading up to their preparation and signing.
Mr. Baldwin took the deed and notes with him when he returned to his .office, without receiving any instructions as to de[487]*487livery of the papers. He kept the deed in his possession until January 7, 1910, when he filed it for record in the office of the register of deeds of Sanborn county. After the recording of the deed, it was delivered to William'M. Deming by Mr. Baldwin.
Three days after she signed and acknowledged this deed, Rachael J. Deming died intestate, leaving as her only heirs at law ihe five respondents herein.
At the time of his mother’s death the respondent William M. Deming was residing, with his family, on the land in controversy and he continued to reside thereon until on or about March 1, 1917. During the time h,e so occupied the land, he paid off the $2,100 of mortgages which incumbered the land at the date of his mother’s deed to him, but, on the strength of his record title, he placed other ¡mortgages on the land, of which a mortgage for $6,000 still remains unpaid. During the time he occupied the land, he expended about $900 in improvements consisting of buildings and additions to buildings which he erected upon the land. He also paid the taxes on the land and interest on the mortgage indebtedness.
On November xi, 1916, William M. Deming, in addition to the $6,000 secured by a mortgage on the land in. controversy, owed numerous debts aggregating something over $6,000. On that day, he executed and delivered to the grantees named1 therein a warranty deed conveying the land in controversy to- A. W. Paulson, E. B. Raesly, and A. N. Johnson, as trustees. The -deed was silent as to nature of the trust, but the evidence shows that it was understood between the parties to the deed that the trustees were to have the right to sell the land, apply the proceeds to the payment of Deming’s debts, and pay to Deming any excess there might be after paying the debts. About March 1, 1917> William M. Deming moved off the land.in controversy, and the trustees rented the land to one Johnson for the farming season of 1917-In October, 1917, the trustees sold the land to the appellant for $12,800. giving him a purchase-money contract which has never been recorded. Appellant Nielson took possession of the land in March, 1918, and remained in possession thereof up to the time ¡of trial of this action. He paid the trustees $500 of lb' purchase price at the date oí the contract, $2,500 on March 12, 19x8, and $3,800 on March 1, 1919, completing the payment of
[488]*488the purchase-price named in the contract. No- deed conveying the land to the appellant_ has ever been executed by the trustees. While in possession of the land, appellant paid taxes and interest and expended considerable- amounts for improvements placed upon the land.
In January, 1917, the respondent Arstein Jaquish began an action in the circuit court of Sanborn county, .in which William M. Deming, John Deming, Mark Deming, A. W. Paulson, E. B. Raesly, and A. N. Johnson were named as defendants. In her comp’aint in this action, the plaintiff set forth the facts as to her relationship to Rachael J. Deming, deceased, and alleged that o-n 12th day of January, 1909, Rachael J. Deming was the owner of the land in controversy and of certain personal property, and on that day died intestate, that no proceedings to probate the estate of said Rachael J. Deming were ever had, but that there are no claims ag-ainst the estate ,and that she (the said plaintiff), upon the death of her said ancestor, became the owner of an undivided one-fifth interest in the property of said estate and is still entitled thereto-; and she asks that the title to an undivided one-fifth interest in the land be'quieted as against the defendants, that the right, title, and interest of all the -defendants in said land be determined, and that the interest of the defendants Paul-son, Raesly, and Johnson in the said land be adjudged to- be inferior to plaintiff title in and to an undivided one-fifth interest therein.
- The defendant Della Tompkins made no appearance in the action. The defendant William M. Deming, in his answer, admits the relationship of the plaintiff to Rachael J. Deming, deceased, but - alleges that, on the date of the death- of said Rachael J. Deming, he was the owner in fee simple and in possesrio-n of said land and continued to- be the owner thereof until November 11 19x6, when he -conveyed said premises to defendants Paulson, Raesly, and Johnson, in trust for the use of certain creditors, and that said- trustees still have the title- to and possession of the land for such use and purpose.
The defendants John Deming and' Mark Deming answered separately, -but in identical language,' admitting the relationship of appellant to Rachael J. Deming, deceased, but alleging that o-n January 9, 1909, said decedent, for a good and valuable considera[489]*489tion, conveyed the land in controversy to the defendant William M. Deming, that on November n, 19.16, said defendant William M. Deming conveyed said property to Paulson, Raesly, and Johnson, as trustees, and that since that time said trustees have had title and possession of the premises for such purpose.
The defendant trustees answered jointly, alleging the same facts as alleged in the answers of the other defendants.
On January 17, 1917, the plaintiff Arstein Jaquish caused to be filed in the office of the register of deed's of Sanborn county, a notice of lis pendens, setting forth the venue and title of the action and containing the following words:
“Notice is hereby given that the above-entitled action is being prosecuted' for the purpose of determining the right, title, and interest of the parties to this action in and to the southeast quarter of section 11, township 108, range 59, Sanborn county, S. D., and particularly to quiet title to the plaintiff to an undivided one-fifth interest in' and to said land's.”
This action of Jaquish. v. Deming' et al. was not tried' until April 20, 19.20, and, as a result of the trial, the circuit court entered a decree declaring the deed from Rachael J. Deming to William M. Deming null and void, on the ground that it had never been legally delivered. And this decree not only quieted the plaintiff’s title to^ an undivided one-fifth interest in the land, but also decreed that each of the defendants Delia Tompkins, John Deming, and Mark Deming owned an undivided one-fifth interest in the land, that the defendant William M. Deming had conveyed to the trustees only such equity as might remain from his one-fifth interest, after the satisfaction of the entire mortgage debt of $6,000 out of such one-fifth interest. That decree was entered' on May 11, 1920, and no appeal was ever taken therefrom.
On the trial of the action involved in the appeal now before this court, the plaintiffs put in evidence the decree in the former case (Jaquish v. D'eming et al.) and contended that, said decree having adjudged the deed from Rachael J. Deming to be void, and Arstein Jaquish, John Deming, Mark Deming, and Della Tompkins to be the owners of four-fifths of the land in controversy, that decree was binding on the defendants in the instant case, and made the. question, of title res judicata as to all tih'a parties.
[490]*490THe trial court sustained that contention and made a finding setting forth in full the findings, conclusions, and decree in Jaquish v. D'eming et ah, and also made and filed-a conclusion of law that the said decree was a valid' and final decree binding upon all of the parties and on their successors in interest, and binding upon the appellant Nelson as fully as upon his grantors, Paulson, Raesly, find Johnson.
The appellants assign as error the making of that conclusion and, while there are other assignments of error, the correctness of the conclusion is the vital question in this appeal. If the conclusion is right, then the respondents cannot be estopped by any acts which took place prior to the trial in Jaquish v. D'eming. O'n the other hand, if the conclusion is wrong, then, in the trial of the instant case, the trial court should have received and considered the evidence offered on the question of estoppel.
If the court had jurisdiction to enter the decree which it d'id enter in Jaquish v. D'eming et al., then it cannot be attacked in the action now before this court. On the other hand, if, in entering that decree, the trial court exceeded its jurisdiction, the decree is properly attacked by the appellants.
In Jaquish v. Deming et ah, the respondents Della Tompkins, William M. Deming, John D'eming, and Mark Deming were codefendants with Paulson, Raesly, and Johnson, appellants- herein. None of said respondents, when made defendants in Jaquish v. Deming, claimed any title adverse to appellants Paulson, Raesly and Johnson.
The rule is thus stated' in Black on Judgments, § 242:
“Where the issues ini a suit in chancery are so framed as to present a controversy between the complainants on the one side and the defendants on the other, the court should not go beyond the pleadings and decree relief as between the codefendants.”
The case of Munday v. Vail, 34 N. J. Law 418, is a leading case on this point, and, in that opinion, the New Jersey court says:
“'A. judgment upon a matter outside of the issues must, of necessity, be altogether arbitrary and unjust, as it concludes a point upon which the parties have not been heard. And it is upon this very ground that the parties have been heard,. or have had the opportunity of a hearing, that the law gives so conclusive an [491]*491effect to matters adjudicated. And this is the principal reason why judgments become estoppels.”
And in Graham v. La Crosse & Milwaukee Railway Co., 3 Wall. 704, 18 L. Ed. 247, the United States Supreme Court, referring to authorities cited in support of the rule that judgments are not subject to collateral attack, says:
“But neither of these cases assert the doctrine maintained here for the appellants, that a court of equity may decree between defendants when neither pleadings nor proofs show any controversy or adverse interest between them. Nor have we been referred to any case which does assert that doctrine.”
This court in Seiberling v. Mortinson, 10 S. D. 644, 75 N. W. 202, cites with approval the case of Munday v. Vail, supra, and quotes therefrom a passage containing the following language:
“Jurisdiction may be defined to be the right to' adjudicate concerning the subject-matter in the given case. To constitute this, there are three essentials: First, the court must have cognizance of the class of cases to which the one to be adjudged belongs; second, thei proper parties must be present; and, third, the point decided must be, in substance and effect, within the issue.”
“A defect in a judgment, arising from the fact that the matter decided was not embraced within the issue, h'as not, it would seem, received much judicial consideration; and yet I cannot doubt that, upon general principles, such a defect must avoid a judgment.”
This court, in Seiberling v. Mortinson, supra, adopted the doctrine of the New Jersey court as so stated.
This decision is further supported by the following cases: Clemons v. Heelan, 52 Neb. 287, 72 N. W. 270; Springfield F. & M. Ins. Co. v. Peterson, 93 Neb. 446, 140 N. W. 760; Peterson v. Hartford Ins Co., 93 Neb. 448, 140 N. W. 761; Satterlund v. Beal, 12 N. D. 122, 95 N. W. 518; State v. Haverly, 62 Neb. 767, 87 N. W. 959; Schuster Bros. v. Davis Bros., 185 Iowa, 143, 170 N. W. 292; Lee v. Pauly Motor Truck Co., 179 Wis. 139, 190 N. W. 819; Anglea v. McMaster, 17 Old. 501, 87 P. 660; Davidson v. Davidson R. E. Co. 249 Mo. 474, 155 S. W. 1; Becovitz [492]*492v. Sapperstein, 46 Ind. App. 339, 92 N. E. 551; Browne Grain. Co. v. Merchants Nat. Bank (Tex. Civ. App.) 173 S. W. 912.
The judgment appealed from in the instant case is (based wholly upon the conclusion of the trial court that the decree in Jaquish v. Deming “is a valid and binding decree and is binding on all of said parties, their heirs and successors in interest, and that the defendant, C. E. Nelson, is bound' by said decree as fully and completely as are his grantors Paulson, Raesly, and1 Johnson.” And as that decree was void, in so far as it purported to award to the defendants Della Tompkins, William. M. Deming, John Deming, and Mark Deming rights as against Paulson, Raesly and Johnson, which rights D’ella Tompkins had not claimed and the three Demings had, in their answers, affirmatively disclaimed, the judgment in the instant case is erroneous. The trial court should1 have 'held1 that the decree in Jaquish v. Deming was void, in so far as it awarded any interest in the land to Della Tompkins or either of the Demings, and it should have made proper findings upon the question of estoppel of the plaintiffs.
The judgment appealed from is reversed and the case is remanded to the trial court, with instructions to that court that it make findings and conclusions and enter judgment in accordance with this decision.
Reversed and remanded.