By the Court,
Paine, J.
The appellant agreed to convey to the respondent, by a “ a valid warranty deed,” on the first day of March, 1856, certain lots. The respondent paid $700, part of the contract price, at the making of the contract The conveyance was not made, and this action was brought to recover back the money paid, the respondent alleging that at the time appointed for the conveyance, the appellant liad no title to the lots, and taking upon himself the burden of establishing that fact
We have no doubt of his right to maintain the action, if he could establish it. We do not think he was bound to demand and accept a deed which would not be a compliance with the contract. If the appellant had tendered a warranty deed, having no title, the respondent would not have been bound to receive it, but could have recovered back the money paid. And. we think his right is the same, without going through the ceremony of a demand, if he will show that the appellant had no title, and could not have complied with the contract.
But the principal question is as to the effect to be given to the record in the partition suit, which was introduced in evidence by both parties, and on which, as appears by the appellant’s affidavit, he chiefly relies to support his title. The re[571]*571spondent offered evidence to show that the appellant claimed title through these proceedings, and.then offered the record to show a want of title, claiming that it appears on the face of the record that the proceedings were void. The appellant claimed that it supported his title, but the circuit court ruled otherwise, and held the proceedings void.
Two objections are taken to their validity; first, that the records show a want of jurisdiction over the parties; and second, that there was no judgment to sustain the sale of the interest allotted to Parks, one of the defendants, which interest was sold on an execution against him for his share of the costs of the proceedings, and through which sale a part of the title of the appellant is derived.
We think the last objection cannot be sustained. The proceedings were had under the partition act of Michigan, Laws of 1833, p. 269, which was then in force in this territory. After acquiring jurisdiction of the parties, and taking the proofs, the court was required to render a preliminary judgment, settling their various rights in the premises, and then to appoint commissioners to make partition accordingly. The latter were to report the manner of making partition, and then, on the confirmation of the repórt, the court was to render a final judgment, “that the partition be firm and effectual forever,” and was authorized to give judgment for the costs. In the record here presented, no preliminary judgment, settling the rights of the parties, appears to have been made. But the commissioners were appointed, their report made and confirmed, and a final judgment rendered, that “the partition so made be firm and effectual forever,” and for costs, &c. The want of the preliminary judgment was doubtless an irregularity, and may have been sufficient cause for reversing the judgment, on a direct proceeding for that purpose. But we do not think its absence makes the-final judgment that was rendered, void, so that it can be impeached collaterally. [572]*572This final judgment has all the essentials of a judgment, and may stand by itself. It necessarily asserts that the rights of the parties were as they were allotted by the commissioners. And if the court had jurisdiction of the parties, we think it cannot be avoided collaterally.
The proceedings were in a court of general jurisdiction; and the general rule in respect to such courts is, at all events where jurisdiction appears, that though the record does not show everything necessary to regularity, it is to be presumed, unless the contrary expressly appears. And even if irregularity or gross error do appear, the judgment cannot be questioned collaterally. It is true that proceedings under special statutes have sometimes been made an exception to this general rule as to presumption, even in courts of general jurisdiction. But without entering the inextricable labyrinth of cases on the subject, we will only say that we can see, upon principle, no reason for the distinction. The general presumption in favor of the regularity of the proceeding of such courts, is founded on the character of the court itself. And that character is the same, whether it act under a special statute, or under the common law. I cannot see that a difference in the source of its authority to act, can make any rational distinction as to the presumption in favor of the regularity of its action. And if not, even though the preliminary judgment required by the statute under which these proceedings were had, should be held necessary as a foundation for the final judgment, yet the preliminary judgment may be presumed to have been rendered, .though it does not appear, from the fact that the court did render the final judgment.
But we think the other objection to this record is fatal; that is, that it shows on its face that the court acquired no jurisdiction over the parties. There are some modern cases which manifest a disposition to hold proceedings with respect [573]*573to lands, such as partition, sales by administrators, &c., to be proceedings strictly in rem, and that notice, even though required by statute, is not essential to jurisdiction. But we do not deem it necessary to inquire, in this case, how far it is possible to sustain such a doctrine, for by the statute under which these proceedings were had, a personal judgment could be rendered against the parties, execution issued, and their property sold. And the appellant seeks to derive title through a sale on such an execution. And we are clearly of the opinion that in such a proceeding the court acquires no jurisdiction to render a judgment until the parties are notified, as the law requires, for the reason that it is a proceeding in per-sonam, as well as in rem.
The question, to what extent jurisdiction over the parties is to be presumed, from the judgment of a court of general jurisdiction, where the record fails to show it, is not involved, for the reason that the record here shows the mode of service. And I consider it well established by authorities, some of which were referred to in the case of Rape vs. Heaton, decided at the last term, 9 Wis., 328, that where the manner of service appears ón the record, the court, where it is presented, must look into and determine whether jurisdiction was acquired. In this record the manner of service appears, though it is perhaps worthy of remark, that there is a discrepancy between the two records in this respect. In the one offered by the plaintiff below, the order of the court finding due service, recites the affidavit upon which it was based. Whereas, in the other, the affidavit is not recited. If this affidavit were the only part of record showing the mode of service, this discrepancy might be more material than we now regard it. For, if the affidavit did not appear, the court having found due service, this finding might be sufficient to compel the presumption that the parties.were served with notice as the law required, upon which however, we express no opinion. The [574]
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By the Court,
Paine, J.
The appellant agreed to convey to the respondent, by a “ a valid warranty deed,” on the first day of March, 1856, certain lots. The respondent paid $700, part of the contract price, at the making of the contract The conveyance was not made, and this action was brought to recover back the money paid, the respondent alleging that at the time appointed for the conveyance, the appellant liad no title to the lots, and taking upon himself the burden of establishing that fact
We have no doubt of his right to maintain the action, if he could establish it. We do not think he was bound to demand and accept a deed which would not be a compliance with the contract. If the appellant had tendered a warranty deed, having no title, the respondent would not have been bound to receive it, but could have recovered back the money paid. And. we think his right is the same, without going through the ceremony of a demand, if he will show that the appellant had no title, and could not have complied with the contract.
But the principal question is as to the effect to be given to the record in the partition suit, which was introduced in evidence by both parties, and on which, as appears by the appellant’s affidavit, he chiefly relies to support his title. The re[571]*571spondent offered evidence to show that the appellant claimed title through these proceedings, and.then offered the record to show a want of title, claiming that it appears on the face of the record that the proceedings were void. The appellant claimed that it supported his title, but the circuit court ruled otherwise, and held the proceedings void.
Two objections are taken to their validity; first, that the records show a want of jurisdiction over the parties; and second, that there was no judgment to sustain the sale of the interest allotted to Parks, one of the defendants, which interest was sold on an execution against him for his share of the costs of the proceedings, and through which sale a part of the title of the appellant is derived.
We think the last objection cannot be sustained. The proceedings were had under the partition act of Michigan, Laws of 1833, p. 269, which was then in force in this territory. After acquiring jurisdiction of the parties, and taking the proofs, the court was required to render a preliminary judgment, settling their various rights in the premises, and then to appoint commissioners to make partition accordingly. The latter were to report the manner of making partition, and then, on the confirmation of the repórt, the court was to render a final judgment, “that the partition be firm and effectual forever,” and was authorized to give judgment for the costs. In the record here presented, no preliminary judgment, settling the rights of the parties, appears to have been made. But the commissioners were appointed, their report made and confirmed, and a final judgment rendered, that “the partition so made be firm and effectual forever,” and for costs, &c. The want of the preliminary judgment was doubtless an irregularity, and may have been sufficient cause for reversing the judgment, on a direct proceeding for that purpose. But we do not think its absence makes the-final judgment that was rendered, void, so that it can be impeached collaterally. [572]*572This final judgment has all the essentials of a judgment, and may stand by itself. It necessarily asserts that the rights of the parties were as they were allotted by the commissioners. And if the court had jurisdiction of the parties, we think it cannot be avoided collaterally.
The proceedings were in a court of general jurisdiction; and the general rule in respect to such courts is, at all events where jurisdiction appears, that though the record does not show everything necessary to regularity, it is to be presumed, unless the contrary expressly appears. And even if irregularity or gross error do appear, the judgment cannot be questioned collaterally. It is true that proceedings under special statutes have sometimes been made an exception to this general rule as to presumption, even in courts of general jurisdiction. But without entering the inextricable labyrinth of cases on the subject, we will only say that we can see, upon principle, no reason for the distinction. The general presumption in favor of the regularity of the proceeding of such courts, is founded on the character of the court itself. And that character is the same, whether it act under a special statute, or under the common law. I cannot see that a difference in the source of its authority to act, can make any rational distinction as to the presumption in favor of the regularity of its action. And if not, even though the preliminary judgment required by the statute under which these proceedings were had, should be held necessary as a foundation for the final judgment, yet the preliminary judgment may be presumed to have been rendered, .though it does not appear, from the fact that the court did render the final judgment.
But we think the other objection to this record is fatal; that is, that it shows on its face that the court acquired no jurisdiction over the parties. There are some modern cases which manifest a disposition to hold proceedings with respect [573]*573to lands, such as partition, sales by administrators, &c., to be proceedings strictly in rem, and that notice, even though required by statute, is not essential to jurisdiction. But we do not deem it necessary to inquire, in this case, how far it is possible to sustain such a doctrine, for by the statute under which these proceedings were had, a personal judgment could be rendered against the parties, execution issued, and their property sold. And the appellant seeks to derive title through a sale on such an execution. And we are clearly of the opinion that in such a proceeding the court acquires no jurisdiction to render a judgment until the parties are notified, as the law requires, for the reason that it is a proceeding in per-sonam, as well as in rem.
The question, to what extent jurisdiction over the parties is to be presumed, from the judgment of a court of general jurisdiction, where the record fails to show it, is not involved, for the reason that the record here shows the mode of service. And I consider it well established by authorities, some of which were referred to in the case of Rape vs. Heaton, decided at the last term, 9 Wis., 328, that where the manner of service appears ón the record, the court, where it is presented, must look into and determine whether jurisdiction was acquired. In this record the manner of service appears, though it is perhaps worthy of remark, that there is a discrepancy between the two records in this respect. In the one offered by the plaintiff below, the order of the court finding due service, recites the affidavit upon which it was based. Whereas, in the other, the affidavit is not recited. If this affidavit were the only part of record showing the mode of service, this discrepancy might be more material than we now regard it. For, if the affidavit did not appear, the court having found due service, this finding might be sufficient to compel the presumption that the parties.were served with notice as the law required, upon which however, we express no opinion. The [574]*574fact therefore that there are two copies of the same record, differing in this particular, which might be so important, gives rise to the suspicion that one or the other of them must have been prepared with direct reference to the legal effect of the presence or absence of the affidavit, showing the mode of service. If such has been the case, it was a proceeding which Could not be censured with too great severity, whoever may have procured it to be done. But we do not conceive this to be so material as it otherwise might be, from the fact that both of the records show the notice that was served and the manner of service upon the parties who were residents of the territory, the affidavit only showing the mode of publication which was-to reach non-residents, or those not found.
The second section of the act before referred to, provided that a copy of the petition should be served “ at least forty days previous to the term on which it should be presented,” on all the parties not joining in the petition, with a notice subscribed by the petitioner, that an application would be made to the court “ on some certain day in term to be. specified therein,” or as soon thereafter as counsel could be heard, for the appointment of commissioners, &c. There is also a proviso, that if any of the parties were non-residents, or not found, the notice might be published for three months, once each week in a newspaper in the county where the premises were situated.
The notice in this case, of which, with the petition, the defendant Hedding accepted service on the 15th day of March, and the defendants Juneau and Parks, on the 2d day of April, 1838, simply states that an application will be made to the Hon. Charles Dunn, judge of the district court of Iowa county, for the appointment of commissioners to make partition of the premises, describing them. It states no time when, nor place where, the application will be made, and therefore utterly fails to comply with the requirements of the statute. 'Un[575]*575doubtedly no slight or immaterial variance should defeat such a proceeding, if the notice conveyed to the party substantially the information he was entitled to receive. But here was an utter failure. The essential requisites of the notice were wanting. The parties received no information whatever of the time or place when and where they were to appear to protect their interests. If the notice was good at all, it must have been good for all time, and the parties notified have been bound to be in perpetual attendance upon the Hon. Charles Dunn to find out when the application was to be made. The petition which was served with the notice, is entitled of the May term, 1838, but as if in illustration of the utter insufficiency of the notice, it was filed on the 20th day of April, 1838, only eighteen days after its service on Parks and Juneau, which it also appears, was on the.eleventh day of the term. We have not access to any copy of the territorial laws fixing the terms at that early day; but it appearing from the records, that there was an April term, we are safe in assuming that there was no May term. So that the only allusion to any time, if the party could be held bound by allusions in the petition to a term generally, when the law required the notice to specify a day certain, would, in this instance, have served to mislead, and induce him to wait till May, while his rights were being determined by proceedings in April. The acceptance of service by the parties cannot be construed into a waiver of anything. It was simply evidence that the papers were served, and gave them no other effect than would the sheriffs return of service.
I cannot regard proceedings in which there was such an utter failure to comply with the most material requirements of the statute, as having conferred any jurisdiction over the parties so notified.
The affidavit also shows a non-compliance with the law in respect to publication. The notice was published a part of [576]*576the requisite time in a newspaper in Iowa county; and that having been discontinued, it was afterwa'rds posted on the court house door. If the publication was to he governed by the partition act, then the posting on the court house door would have been unauthorized.
But the appellant’s counsel rely on another act, found on page 192, Mich. Laws, 1833, as authorizing the posting. This act provided that when any notice of an application to any judge of court, was required to be published in any newspaper, it should, in the counties of Brown, Iowa and Crawford, “ be published, by posting one copy of it on the door of the house where the circuit court was last held in the county in which such application is made,” &c. It also provided that the court or judge might order a further publication in a newspaper, at his discretion.
Now, if this law was applicable to the case, and it would seem to be so, the notice should have been posted on the court house door during the Avhole time it was required to be published. And publishing a part of the time in a newspaper, and then posting it the balance of the time, was not a compliance with the mode provided by either statute.
We think, therefore, the circuit court was right in holding that it appeared on the face of the record, that the court acquired no jurisdiction of the parties in the partition suit, and that the judgment, for this reason, was void..
We have been pressed to sustain this record. It is said that many of the old records are imperfect, that titles have been acquired under them, and that to hold them void, would unsettle rights to property. There is great force in this argument. But I think it is allowed all its legitimate influence, in the establishment of the legal presumptions in favor of the validity of judgments. If parts of the records have been lost, they will be presumed such as were proper to support the judgment. If the record fails to show everything neces[577]*577sary, it will be presumed, unless the contrary appears, in favor of the judgments of superior courts, including even jurisdiction over the parties. And where jurisdiction exists, the judgment is valid for all purposes, no matter how erroneous, until reversed. I think this is going as far as policy or justice requires.
In considering the argument of convenience in favor of supporting records, it should not be forgotten that the same argument has force both ways; that those whose rights are divested by judicial proceedings, are entitled to some consideration in settling the rules of law by which such proceedings are to be judged, as well as» those whose rights are acquired through them. And it is for their protection that the old rule exists, than which none is better settled, that the judgment of any court assuming to dispose of. the rights of parties over whom it has not jurisdiction, is a nullity.
Where it appears, therefore, as it does here, that the parties were never notified of the proceedings against them, I know of no rule or principle of law, by which I can say the judgment was valid. To say so in this case, would seem to me to be saying that there is no rule of law applicable to these questions of jurisdiction, but that the court must decide every case upon its own discretion, in view of the probable evils or benefits to result from defeating or supporting the record. And no one can examine the cases on the subject without coming to the conclusion, that such has been practically, to a great extent, the standard by which they have been determined.
For my own part, I do not desire to be subjected to such a responsibility. I am willing to labor as patiently and thoroughly as I may, to find the law applicable to the case, but I am not willing to feel that, after such examination, there is no law; but that I am to decide it in view of its effect upon the parties.
[578]*578The subject is, undoubtedly, involved in much confusion and uncertainty, by the cases, but the principles by which we have determined the validity of this record, I believe to be supported by the soundest reasons, as well as decisions.
But it appears that the appellant offered in evidence certain tax deeds to Haight, through whom he claims title, which appear from the case, to include the same premises which were the subject of the particular suit. These were rejected, for what reason is not shown. We can see no reason why they were not admissible. Whether the party could have established a good title under them, is, of course, uncertain. But they were made by statute, and fhis court has decided them to b e,prima fade evidence of the regularity of the proceedings in the tax collection and sale. They may have been liable to be invalidated by evidence, but we think the appellant had a right to offer them, and show title under them, if he could, and that the court erred in rejecting them.
For this error the judgment is reversed, with costs, and the cause remanded for a new trial.