By the Court,
DixoN, C. J.
The positions assumed by the respondents’ counsel in the argument of this case, I must.say, appeared to me novel and somewhat extraordinary. It seemed to me that if they were correct, we should, so far as the appellants are concerned, be compelled to give one of the most unjust judgments ever pronounced in a court of justice; that every sentiment of equity and justice demanded of us to uphold them in their title and possession, or at least to give them their day in court, for the purpose of establishing them. The idea that, under our statute for the partition of real estate, a' party in the quiet and undisturbed possession of his property, could be stripped of it by a judicial proceeding, of which he was entirely ignorant, struck me as being so flagrantly and enormously unjust and oppressive, that I thought it could not [312]*312be the law. The taking of a valid title of a person in possession from him and transferring it to another having no right to it by a proceeding of which the owner has no knowledge, and in which his title was not directly adjudicated against him, nor the attention of the court directly called to it, exhibits a most alarming defect in justice. Such a proceeding is opposed to all our notions of law and justice, and we search with anxiety for some mode of escape from it. Such were my impressions of this case at the argument, and, although I am compelled to adopt the views of the respondent’s counsel as the correct law, yet I must confess I have not been able, nor am I desirous to rid myself of them.
It is not by the rule's of the common law, which courts are at liberty to mould and modify so as to meet the ends of justice, but by the declarations of the legislature upon a subject confessedly within their control, that we are to determine this case. They, not the court, are responsible for the unjust consequences which may flow from its decision. They have prescribed the mode in which parties shall be brought into court, the form of the proceedings, and the effect of the judgment in actions like that under which the respondent claims title. The same power which authorized the wrong must apply the remedy. Our solicitude to save the rights of the appellants has led us to the examination of many cases not cited by counsel, but, pressed as I am for time, I shall only notice such as bear most directly on the questions involved.'
The first and second objections made by the appellants’ counsel to the partition proceeding, viz: That the allegation in the complaint, as to the existence and interests of parties unknown, was insufficient, and the affidavit was not sufficient to authorize the order of publication, are clearly untenable. The court was a court of general jurisdiction, and its finding and determination of these matters is binding and conclusive in all collateral proceedings. The allegations of the complaint, and [313]*313the statement of facts in the affidavit, were a substantial compliance with the statutory requirement. Mere irregularities in judicial proceedings, which are open to objection directly in the suit, or might be taken advantage of on error or appeal, cannot be drawn in question collaterally, for the purpose of avoiding or impeaching the judgment. Painter vs. Henderson, 7 Barr., 48; Doe vs. Smith, 1 Carter, Ind., 451; Foot vs. Stevens, 17 Wend., 483; Hart vs. Sexas, 21 id., 40.
The next and most important question is, whether the appellant, Church, who was, at the time of the commencement and consummation of the suit for partition, an owner in sev-eralty, and in possession of a portion of the partitioned premises, and who was not made a party to the suit by name, or served with process, is bound by the judgment as one of the “ unknown owners,” who were proceeded against by advertisement. I confess that we should have had great doubt about holding him a party to the suit as an unknown owner, and,- therefore, bound by the judgment, were it not for the authority of the case of Cook vs. Allen, 2 Mass., 461. The case is so directly in point, the decision ,by a court of so great respectability and learning, and the reasoning so conclusive, that we are compelled. - to adopt and be governed by it. The leading facts were like those in the present case, in almost every particular. The suit was by writ of entry sur disseizin. The action was tried at the May term, 1807. Cook, the demandant, in support of the action, gave in evidence the proceedings of the supreme court, upon a petition of Joseph S. Reed, for partition, in the year 1800, wherein he asked to have 1000 acres of land set off to him in severalty, out of a tract of 19,000 acres, which 1000 acres he alleged he held in common and undivided with others, to him unknown. Upon the petition the court ordered notice thereof to be given to all persons interested to appear and show cause why the prayer thereof should not [314]*314be granted, pursuant to the provisions of a statute, passed in 1784. The order was executed, and no person appearing, partition was decreed and made. It was shown that the land demanded in the action, and to which Allen the tenant had pleaded nul disseizin, was assigned to Reed by the commissioners appointed by the court to make partition; and that Reed had conveyed the same to the demandant. Allen set up title under one Jonathan Frye, who entered upon it upwards of thirty years before, and continued to hold and occupy it, until Allen recovered seizin and possession, by virtue of a mortgage made by Frye to him, in 1787, and which he had forclosed, and ever since possessed the same. Upon the argument in that case, as in this, it was urged that the operation of the] statutes was confined to the co-tenants, who were estopped after due service of process under the statute, from contesting the share or property claimed by the petitioner. That the object of the act, and of the process under it, was merely to turn an estate in common into an estate in sever-alty ; that neither the one nor the other were ever considered as furnishing a method of establishing or trying the right of a tenant in common, as against one holding a title adverse to that of the tenants in common. It was further argued, that a judgment of a court binds only parties and privies; that Allen was no party to the judgment, for he claimed nothing as tenant in common; that if he had been named in the petition as a person interested in the land, and personal notice given him, there might have been a pretence for considering him as a privy. But that the whole purpose of the process being to effect a partition of the estate held in common, the tenants in common were the only parties to the process, and notice to all parties interested must be understood to imply notice to the co-tenants alone. The court remarked, that a writ of partition at common law, must name all the tenants as plaintiffs or defendants, and set forth the shares of each ; and that [315]*315partition must be made among all. That in that state large parcels of land were holden in common, the tenants were numerous and unknown to each other, and their shares un-ascertainable; and that partition so necessary for the settlement and cultivation of lands, was, therefore, impracticable by writ at common law. After noticing the provisions of the English statute, 8 and 9 Will. 3, c. 31, designed to remedy like inconveniences, and that of their own state, which declared that “
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By the Court,
DixoN, C. J.
The positions assumed by the respondents’ counsel in the argument of this case, I must.say, appeared to me novel and somewhat extraordinary. It seemed to me that if they were correct, we should, so far as the appellants are concerned, be compelled to give one of the most unjust judgments ever pronounced in a court of justice; that every sentiment of equity and justice demanded of us to uphold them in their title and possession, or at least to give them their day in court, for the purpose of establishing them. The idea that, under our statute for the partition of real estate, a' party in the quiet and undisturbed possession of his property, could be stripped of it by a judicial proceeding, of which he was entirely ignorant, struck me as being so flagrantly and enormously unjust and oppressive, that I thought it could not [312]*312be the law. The taking of a valid title of a person in possession from him and transferring it to another having no right to it by a proceeding of which the owner has no knowledge, and in which his title was not directly adjudicated against him, nor the attention of the court directly called to it, exhibits a most alarming defect in justice. Such a proceeding is opposed to all our notions of law and justice, and we search with anxiety for some mode of escape from it. Such were my impressions of this case at the argument, and, although I am compelled to adopt the views of the respondent’s counsel as the correct law, yet I must confess I have not been able, nor am I desirous to rid myself of them.
It is not by the rule's of the common law, which courts are at liberty to mould and modify so as to meet the ends of justice, but by the declarations of the legislature upon a subject confessedly within their control, that we are to determine this case. They, not the court, are responsible for the unjust consequences which may flow from its decision. They have prescribed the mode in which parties shall be brought into court, the form of the proceedings, and the effect of the judgment in actions like that under which the respondent claims title. The same power which authorized the wrong must apply the remedy. Our solicitude to save the rights of the appellants has led us to the examination of many cases not cited by counsel, but, pressed as I am for time, I shall only notice such as bear most directly on the questions involved.'
The first and second objections made by the appellants’ counsel to the partition proceeding, viz: That the allegation in the complaint, as to the existence and interests of parties unknown, was insufficient, and the affidavit was not sufficient to authorize the order of publication, are clearly untenable. The court was a court of general jurisdiction, and its finding and determination of these matters is binding and conclusive in all collateral proceedings. The allegations of the complaint, and [313]*313the statement of facts in the affidavit, were a substantial compliance with the statutory requirement. Mere irregularities in judicial proceedings, which are open to objection directly in the suit, or might be taken advantage of on error or appeal, cannot be drawn in question collaterally, for the purpose of avoiding or impeaching the judgment. Painter vs. Henderson, 7 Barr., 48; Doe vs. Smith, 1 Carter, Ind., 451; Foot vs. Stevens, 17 Wend., 483; Hart vs. Sexas, 21 id., 40.
The next and most important question is, whether the appellant, Church, who was, at the time of the commencement and consummation of the suit for partition, an owner in sev-eralty, and in possession of a portion of the partitioned premises, and who was not made a party to the suit by name, or served with process, is bound by the judgment as one of the “ unknown owners,” who were proceeded against by advertisement. I confess that we should have had great doubt about holding him a party to the suit as an unknown owner, and,- therefore, bound by the judgment, were it not for the authority of the case of Cook vs. Allen, 2 Mass., 461. The case is so directly in point, the decision ,by a court of so great respectability and learning, and the reasoning so conclusive, that we are compelled. - to adopt and be governed by it. The leading facts were like those in the present case, in almost every particular. The suit was by writ of entry sur disseizin. The action was tried at the May term, 1807. Cook, the demandant, in support of the action, gave in evidence the proceedings of the supreme court, upon a petition of Joseph S. Reed, for partition, in the year 1800, wherein he asked to have 1000 acres of land set off to him in severalty, out of a tract of 19,000 acres, which 1000 acres he alleged he held in common and undivided with others, to him unknown. Upon the petition the court ordered notice thereof to be given to all persons interested to appear and show cause why the prayer thereof should not [314]*314be granted, pursuant to the provisions of a statute, passed in 1784. The order was executed, and no person appearing, partition was decreed and made. It was shown that the land demanded in the action, and to which Allen the tenant had pleaded nul disseizin, was assigned to Reed by the commissioners appointed by the court to make partition; and that Reed had conveyed the same to the demandant. Allen set up title under one Jonathan Frye, who entered upon it upwards of thirty years before, and continued to hold and occupy it, until Allen recovered seizin and possession, by virtue of a mortgage made by Frye to him, in 1787, and which he had forclosed, and ever since possessed the same. Upon the argument in that case, as in this, it was urged that the operation of the] statutes was confined to the co-tenants, who were estopped after due service of process under the statute, from contesting the share or property claimed by the petitioner. That the object of the act, and of the process under it, was merely to turn an estate in common into an estate in sever-alty ; that neither the one nor the other were ever considered as furnishing a method of establishing or trying the right of a tenant in common, as against one holding a title adverse to that of the tenants in common. It was further argued, that a judgment of a court binds only parties and privies; that Allen was no party to the judgment, for he claimed nothing as tenant in common; that if he had been named in the petition as a person interested in the land, and personal notice given him, there might have been a pretence for considering him as a privy. But that the whole purpose of the process being to effect a partition of the estate held in common, the tenants in common were the only parties to the process, and notice to all parties interested must be understood to imply notice to the co-tenants alone. The court remarked, that a writ of partition at common law, must name all the tenants as plaintiffs or defendants, and set forth the shares of each ; and that [315]*315partition must be made among all. That in that state large parcels of land were holden in common, the tenants were numerous and unknown to each other, and their shares un-ascertainable; and that partition so necessary for the settlement and cultivation of lands, was, therefore, impracticable by writ at common law. After noticing the provisions of the English statute, 8 and 9 Will. 3, c. 31, designed to remedy like inconveniences, and that of their own state, which declared that “ the final judgment should be valid to all intents and purposes,” and observing that these words were equivalent to those of the English statute, which declared “ it should be good, and conclude all persons, whatever right or title they had in the premises the court, by Parsons, C. J., say: “ It - is reasonable to give the words a construction, by which no person shall be concluded by a partition, where he could not by law be admitted to defend his rights. This construction is conformable to the maxim of the common law, that judgments do not bind the rights of any but parties or privies; understanding by parties all persons who may have been parties on the record, but from their own laches.
“In applying this construction to the statute before us, where in the petition certain persons are named as the co-tenants, if partition be made, none are concluded by it, but the persons named, their heirs and assignees. If in the petition the co-tenants are not named, but are supposed to be persons unknown to the petitioner, and notice is given to all persons interested to appear and show^cause against the petition, and partition be made, no person appearing, this partition shall conclude all persons whatever, as to their rights of possession. Any person interested was authorized to appear, and by falsifying any allegation of the petition, in a point material to his defense, might have protected his interest. But if he will lie by and refuse to appear, it is a consent that the petitioner may proceed ex parte, and he shall b.e bound by the parti[316]*316tion as fully as if he had appeared, and afterwards made default.
“ In a writ of partition, the plaintiff alleges that all the parties to the writ hold together and undivided; so in the petition, where the tenants are not known or named, the petitioner, by declaring that he is seized of ap undivided share of the land, in effect alleges, that all persons holding the land, or any part of it, are seized as co-tenants with him. And when judgment is rendered in partition, all the allegations material to the rendition of the judgment are to be considered as facts, and all persons concluded by the judgment are estop-ped from controverting them. In this case, therefore, Allen, the tenant, cannot be admitted, by showing a disseizin of all the tenants in common, to question the right of Reed, alleged in his petition, and supported by the judgment, as he cannot be considered a stranger to the record, and so not bound by it.”
To the other 'objection, that by a true construction of the statute, the right of possession of no person is, in fact, bound by any proceeding under it, but a tenant in common, they say: “ It is a sufficient answer to this objection, in this case, that the tenant having been notified of the petition, in which it appears that the petitioner claimed to ¡hold with him together and undivided the premises, and having a legal right to appear and controvert the petition, and judgment being rendered on his default, he is now concluded from saying that he is not a tenant in common.” “As the statute contemplates a case where the parties are unknown, it must extend to a case where the particular interests, or rights of the parties are unknown. It is, therefore, enough for the petitioner to show his own right, not being cognizant of the rights of the others. And the showing . of his own right to be aa undivided interest in all the land, amounts to an allegation that all the persons holding the land, or any part of it, hold together, and undivided with [317]*317him. If any man holding the land, or any part of it, by sole seizin, is named a defendant in a writ of partition at common law, or in a petition on the statute, and, after se/vice of the process, is defaulted, there can be no doubt that his right of possession would be concluded by the judgment. In this case the tenant being described by his interest in the land, according to the petitioner’s claim of title, and process being served on him, if he be not bound by the judgment, the remedy where most necessary, and where [the mischief is irremediable at the common law, would be at the least useless.”
I have quoted at some length from this opinion, partly because it was not noticed at thetrial, but more for its sound reasoning, and because the necessity and policy of the law in providing for proceedings against property of persons unknown is clearly shown. If judgments in such proceedings are not to be held binding and conclusive on all such persons having an interest both as to the amount and nature of their interests, like other judgments, then the mischiefs to be remedied cannot be reached, and partition in many cases becomes an impossibility. The law makes the allegation that they are unknown, and publication of notice equivalent to a suit against them by name where they are known, and personally served with process. If the defendant Church had been sued by name and served with process, and had made default, no one can doubt that such default would have been a confession by him according to the allegations of the complaint, that he was a tenant in common» The statute gives precisely the same effect to the proceeding in the form in which it was had. The good faith of the complainants in the partition suit is not denied. No fraud or design on their part in omitting to name him as a party and serve him with process is alleged. The whole proceeding seems to have been fair on their part, and his omission as a direct party the result of ignorance or mistake.
[318]*318A specific reference to the provision of our statute is unnecessary. It is sufficient generally to say that the complaint, which must be verified by oath, shall particularly describe the premises sought to be divided and set forth the rights and titles'of all persons interested therein so far as the same shall be known to the plaintiff; that he is required to exhibit before, and the court to take proof of his title; that upon the hearing of the cause the court shall ascertain from the proofs taken, in case of failure to answer the complaint, and declare the rights, titles and interests of the -parties to such proceedings, plaintiffs as well as defendants, so far as the same shall have appeared; and shall determine the rights of the said parties in such lands, and render judgment that partition be made according to such rights; and that such judgment shall be binding and conclusive. 1. On all parties named therein, &c. 2. On all persons interested in the premises who may be unknown, to whom notice shall have been given by personal service, or by publishing the same as thereinbefore directed ; and, 3. On all persons claiming from such parties or persons, or either of them. From these provisions the requirement that the court determine the title and the conclusive effect of the judgment are evident.
The hardship of the present case arises from the omission of our legislature to do what that of Massachusetts, Maine and many other states have done, namely, to provide that the rights of those persons unknown who have not appeared and answered, and who claim by paramount title, or to hold in severalty the whole or any part of the premises mentioned in the complaint, shall be excepted from the conclusive operation of the judgment. For the sake of justice to these defendants it is to be wished that such exception had been made. It will be observed in the case above cited, that the coñclusiveness of the judgment as to the right of possession only is affirmed. The action being by writ of entry, the right [319]*319of possession alone was contested. The effect of the judgment as to Allen was only to sever the possession and put Reed and his assigns in. The court expressly said that he was still at liberty to assert his paramount or several title by writ of right. See R. S. Mass., 1836, chap. 103, § 38; Pierce vs. Oliver, 13 Mass., 211.
In addition to the cases cited by the respondent’s counsel, showing, the conclusive effect of the judgment of partition upon the right, Herr vs. Herr, 5 Barr, 428, and Doe vs. Smith, supra, may be referred to as directly in point. In Herr vs. Herr it was held that a decree of partition by the orphans’ court of Pennsylvania was necessarily as conclusive of the’ right as a judgment of partition in a court of law, although the orphans’ court had no jurisdiction whatever to try the title, if an adverse claim was made; whilst in a court of law the title might be put in issue, and be found by the judgment. In that case a party having no title under the intestate petitioned for an inquest, alleging a title as tenant in common which was not disputed by the real heirs. Upon this allegation a decree of partition was made. The court say that the joint tenure was established by the judgment, quod partitio ñat, and was conclusive when coming collaterally into contest between the same parties in a subsequent proceeding. The authority of this case may be considered as somewhat shaken by the subsequent case of McClure vs. McClure, 2 Harris, 134, decided by the same court. I do not myself clearly see how they can be reconciled, and yet the doctrine of Herr vs. Herr is expressly acknowledged and sanctioned. I think McClure vs. McClure is one of those favorable cases which make bad precedents. It cannot be supported on the doctrines which the court profess to hold. Somewhat opposed to these cases are Tabler vs. Wiseman, 2 Ohio St., 207; and Grice vs. Randall, 23 Vt., 239; but comment upon them is deemed unnecessary. Judgment affirmed.