Black, C.
— The appellee brought suit against the appellant ¡.and three others, who have declined to join in this appeal.
Thet complaint alleged, that appellee was the owner in fee ¡simple of certain land in LaPorte county, and that the defendants, and each of them, were asserting some adverse title or interest therein without foundation in law or equity, and thereby there was a cloud upon appellee’s title. Prayer that -appellee’s title be quieted in him, and that the defendants be restrained from asserting title.
Appellant answered by general denial, and filed a cross 'Complaint, in which he asserted his ownership of the land in fee simple, and sought to quiet his title and to enjoin his co-■defendants and the appellee from asserting title.
No answer to the cross complaint appears in the record.
Two of the other defendants filed disclaimers • the third does not appear to have been notified, and he did not appear.
The cause was submitted to the court for trial, and the court, upon request, stated the facts in writing, with conclusions of law, thereon, as follows:
“ This cause having been submitted to the court for trial, .•at the request of the plaintiff, the court states in writing the facts found, as follows:
“ 1. The court finds, upon the admission of the defendant, made upon the trial, that upon the 21st day of March, 1870, one Benjamin Ruffner became seized by perfect title in fee simple of all the lands described in the complaint.
“ 2. That on the 9th day of May, 1870, the said Benjamin Ruffner conveyed all the lands described in the complaint, by warranty deed, in- fee simple, to the plaintiff, which deed was -duly acknowledged and recorded in the recorder’s office of this county on the 7th day of July, 1870.
“ 3. That on the 17th day of December, 1866, the defend[348]*348ant Hogg recovered a judgment in> the circuit court of the United States for the District of Indiana, against the said Benjamin Ruffner, for the sum of $28,992.89, the same being the balance of a certain debt secured by mortgage, over and above the amount realized from the sale of the mortgaged premises; upon which judgment an execution was issued February 26th, 1872, levied upon the land in controversy on the 16th day of March, 1872, and, on the 19th day of April, 1872, after compliance with all the requirements of the law in advertising the same, said land was sold by the marshal; that-the defendant became the purchaser at said sale of all the said lands, and the said execution was duly returned oh the 27th day of July, 1872.
“4. That on the 25th day of January, 1876, the defendant received a deed of conveyance from the marshal upon said sale, conveying to him all the lands mentioned in the complaint, which deed was duly recorded by the recorder of this county, on the 2d day of February, 1876; and the defendant claims title to said lands under said marshalls deed.
“ 5. That prior to the rendition of said judgment in favor of the defendant against the said Benjamin Ruffner, to wit, on the lSth day of May, 1865, the defendant entered into an agreement with the said Ruffner, whereby, upon a valid and valuable consideration, the entire indebtedness upon which said judgment was rendered was fully satisfied and dischai’ged,, and it was then and there agreed between the defendant and said Ruffner that in the foreclosure proceedings then pending there should be no judgment rendered against said Ruffner for' any balance of the debt secured by said mortgage so being foreclosed, over and above the amounts realized from the sale of the mortgaged premises; that after making said agreement the defendant, in the absence of said Ruffner and his attorneys, and without their knowledge or consent, caused said judgment to be entered against said Ruffner; and that said judgment was procured by the defendant through fraud.
[349]*349“ Upon the foregoing facts the court states the following conclusions of law:
“ 1. That the said judgment rendered in the circuit court of the United States, in favor of the defendant, against the said Benjamin Euffner, was and is void, on account of the fraud practiced by the defendant in procuring it; and that said judgment does not sustain the sale and deed of conveyance made by the marshal, under which the defendant claims title to the land in controversy.
“ 2. The plaintiff is the owner in fee simple of the lands described in his complaint, and is entitled to have his title thereto quieted in him as against the defendant.”
Appellant excepted to the conclusions of law, and judgment was rendered as prayed in the complaint.
Appellant moved for a new trial. The motion was overruled. The assignment of errors questions the correctness of the conclusions of law stated in the special finding, and the correctness of the action of the court in overruling the motion for a new trial.
In an action tó quiet title to real estate, any matter of defence, either legal or equitable, may be given in evidence under the general denial. Sections 596, 611, 612, Code of 1852; Sections 1055, 1070, 1071, E. S. 1881; Graham v. Graham, 55 Ind. 23.
No question is made as to the want of an issue on the cross complaint. The parties, without objection, tried the cause as if the cross complaint had been answered by denial, and the case is to be treated here as if there had been a denial of the cross complaint.
The question which must control the decision of the case is whether the appellee could properly be permitted to attack appellant’s judgment against Euffner, by proving that it was procured by fraud.
It is a well settled and familiar doctrine, that in courts of equity a judgment may be enjoined for fraud in obtaining it, at the suit of the injured party.
[350]*350A judgment can not be thus attacked for fraud, the questions concerning which were litigated in such judgment;but fraud used in obtaining a judgment is regarded as perpetrated upon the court, as well as upon the injured party,, and the judgment so obtained may be attacked therefor. Pomeroy Eq. Jur., section 919.
That the circumstances under which the judgment against Ruffner was obtained, as shown by the special finding, constituted such a fraud as would authorize the interposition of a court of equity upon a direct application by the judgment defendant for that purpose, has often been held. See Nealis v. Dicks, 72 Ind. 374, and- cases cited; Blakesley v. Johnson, 13 Wis. 592; Freeman Judg., section 492.
Under the radical changes introduced by the modern procedure, resort to a separate proceeding for the purpose of obtaining equitable relief is, under some circumstances, rendered wholly unnecessary. In the one “ civil action ” provided by that procedure, “The court may determine any controversy between the parties before it, when it can be done without prejudice to the rights-of others, or by saving their rights” (section 22, Code of 1852; section 272, R. S. 1881) ;- and “ The defendant may set forth in his answer as many grounds of defence, counter-claim, and set-off, whether legal or equitable, as he shall have.” Section 56, Code of 1852 section 347, R. S. 1881.
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Black, C.
— The appellee brought suit against the appellant ¡.and three others, who have declined to join in this appeal.
Thet complaint alleged, that appellee was the owner in fee ¡simple of certain land in LaPorte county, and that the defendants, and each of them, were asserting some adverse title or interest therein without foundation in law or equity, and thereby there was a cloud upon appellee’s title. Prayer that -appellee’s title be quieted in him, and that the defendants be restrained from asserting title.
Appellant answered by general denial, and filed a cross 'Complaint, in which he asserted his ownership of the land in fee simple, and sought to quiet his title and to enjoin his co-■defendants and the appellee from asserting title.
No answer to the cross complaint appears in the record.
Two of the other defendants filed disclaimers • the third does not appear to have been notified, and he did not appear.
The cause was submitted to the court for trial, and the court, upon request, stated the facts in writing, with conclusions of law, thereon, as follows:
“ This cause having been submitted to the court for trial, .•at the request of the plaintiff, the court states in writing the facts found, as follows:
“ 1. The court finds, upon the admission of the defendant, made upon the trial, that upon the 21st day of March, 1870, one Benjamin Ruffner became seized by perfect title in fee simple of all the lands described in the complaint.
“ 2. That on the 9th day of May, 1870, the said Benjamin Ruffner conveyed all the lands described in the complaint, by warranty deed, in- fee simple, to the plaintiff, which deed was -duly acknowledged and recorded in the recorder’s office of this county on the 7th day of July, 1870.
“ 3. That on the 17th day of December, 1866, the defend[348]*348ant Hogg recovered a judgment in> the circuit court of the United States for the District of Indiana, against the said Benjamin Ruffner, for the sum of $28,992.89, the same being the balance of a certain debt secured by mortgage, over and above the amount realized from the sale of the mortgaged premises; upon which judgment an execution was issued February 26th, 1872, levied upon the land in controversy on the 16th day of March, 1872, and, on the 19th day of April, 1872, after compliance with all the requirements of the law in advertising the same, said land was sold by the marshal; that-the defendant became the purchaser at said sale of all the said lands, and the said execution was duly returned oh the 27th day of July, 1872.
“4. That on the 25th day of January, 1876, the defendant received a deed of conveyance from the marshal upon said sale, conveying to him all the lands mentioned in the complaint, which deed was duly recorded by the recorder of this county, on the 2d day of February, 1876; and the defendant claims title to said lands under said marshalls deed.
“ 5. That prior to the rendition of said judgment in favor of the defendant against the said Benjamin Ruffner, to wit, on the lSth day of May, 1865, the defendant entered into an agreement with the said Ruffner, whereby, upon a valid and valuable consideration, the entire indebtedness upon which said judgment was rendered was fully satisfied and dischai’ged,, and it was then and there agreed between the defendant and said Ruffner that in the foreclosure proceedings then pending there should be no judgment rendered against said Ruffner for' any balance of the debt secured by said mortgage so being foreclosed, over and above the amounts realized from the sale of the mortgaged premises; that after making said agreement the defendant, in the absence of said Ruffner and his attorneys, and without their knowledge or consent, caused said judgment to be entered against said Ruffner; and that said judgment was procured by the defendant through fraud.
[349]*349“ Upon the foregoing facts the court states the following conclusions of law:
“ 1. That the said judgment rendered in the circuit court of the United States, in favor of the defendant, against the said Benjamin Euffner, was and is void, on account of the fraud practiced by the defendant in procuring it; and that said judgment does not sustain the sale and deed of conveyance made by the marshal, under which the defendant claims title to the land in controversy.
“ 2. The plaintiff is the owner in fee simple of the lands described in his complaint, and is entitled to have his title thereto quieted in him as against the defendant.”
Appellant excepted to the conclusions of law, and judgment was rendered as prayed in the complaint.
Appellant moved for a new trial. The motion was overruled. The assignment of errors questions the correctness of the conclusions of law stated in the special finding, and the correctness of the action of the court in overruling the motion for a new trial.
In an action tó quiet title to real estate, any matter of defence, either legal or equitable, may be given in evidence under the general denial. Sections 596, 611, 612, Code of 1852; Sections 1055, 1070, 1071, E. S. 1881; Graham v. Graham, 55 Ind. 23.
No question is made as to the want of an issue on the cross complaint. The parties, without objection, tried the cause as if the cross complaint had been answered by denial, and the case is to be treated here as if there had been a denial of the cross complaint.
The question which must control the decision of the case is whether the appellee could properly be permitted to attack appellant’s judgment against Euffner, by proving that it was procured by fraud.
It is a well settled and familiar doctrine, that in courts of equity a judgment may be enjoined for fraud in obtaining it, at the suit of the injured party.
[350]*350A judgment can not be thus attacked for fraud, the questions concerning which were litigated in such judgment;but fraud used in obtaining a judgment is regarded as perpetrated upon the court, as well as upon the injured party,, and the judgment so obtained may be attacked therefor. Pomeroy Eq. Jur., section 919.
That the circumstances under which the judgment against Ruffner was obtained, as shown by the special finding, constituted such a fraud as would authorize the interposition of a court of equity upon a direct application by the judgment defendant for that purpose, has often been held. See Nealis v. Dicks, 72 Ind. 374, and- cases cited; Blakesley v. Johnson, 13 Wis. 592; Freeman Judg., section 492.
Under the radical changes introduced by the modern procedure, resort to a separate proceeding for the purpose of obtaining equitable relief is, under some circumstances, rendered wholly unnecessary. In the one “ civil action ” provided by that procedure, “The court may determine any controversy between the parties before it, when it can be done without prejudice to the rights-of others, or by saving their rights” (section 22, Code of 1852; section 272, R. S. 1881) ;- and “ The defendant may set forth in his answer as many grounds of defence, counter-claim, and set-off, whether legal or equitable, as he shall have.” Section 56, Code of 1852 section 347, R. S. 1881.
Whether, in a case requiring a decision of the question, fraud in obtaining a judgment has or has not been expressly and distinctly recognized by this court as an equitable defence under the reformed procedure, it has been so regarded and admitted by other courts and by learned expositors, and the proposition is beyond question. Dobson v. Pearce, 12 N. Y. 156; Mandeville v. Reynolds, 68 N. Y. 528; Stowell v. Eldred, 26 Wis. 504; Rogers v. Gwinn, 21 Iowa, 58; Pomeroy Eq. Jur., section 86, n. 1; Id., section 919; Bliss Code Plead., section 347-351 and notes.
Ruffner was not a party to this suit. The appellee did [351]*351not and could not complain of the judgment on Buffner’sbehalf, but he sought to protect his own interest in the land against the judgment plaintiff’s claim of title through the sale and conveyance of the land to him, under his judgment., At the time of its rendition, the judgment did not affect any rights of the appellee. Afterward the judgment defendant conveyed the land to the appellee by warranty deed in fee simple.
Could the appellee ask a court to interfere in his behalf, as-against the conveyance to the judgment plaintiff, under his judgment?
Appellee received his conveyance, with constructive notice-of appellant’s judgment lien, and it does not appear from the finding whether or not he -had actual notice, if that could affect the matter.
It does not appear that there was any collusion in the-procurement of the judgment for the purpose of defrauding the appellee.
The burden was upon the appellee to impeach the appellant’s title. He does not, upon the facts stated, appear to-have any right to attack that title. French v. Shotwell, 5 Johns. Ch. 555; Shufelt v. Shufelt, 9 Paige, 137; Marriner v. Smith, 27 Cal. 649; Bigelow Fraud, 175.
The judgment should be reversed.
Per Curiam. — It is ordered, upon the foregoing opinion, that the judgment be reversed, at appellee’s costs, and that the cause be remanded, with instructions to state conclusions of law in accordance with said opinion, and to enter judgment accordingly.