Opinion,
Mr. Justice McCollum :
A contract was entered into on the twenty-fourth of August, 1882, between Jacob J. Weaver and John Brenner, by which [304]*304the former agreed to sell, and the latter to buy, twenty-four acres of land in Summerhill township, Cambria county, for the sum of 1326.50, payable as follows: one hundred dollars, April 1, 1883; one hundred dollars, April 1, 1884; and the balance April 1, 1885. Brenner immediately took possession of the land, and continued in the occupancy and use of it, but neglected to pay the purchase money. On the sixteenth of November, 1886, Weaver brought an action of ejectment against him to compel its payment. The case was settled on the twenty-third of February, 1887, by the vendor conveying the land to the vendee, and taking his note at ninety days, with warrant to confess judgment for the unpaid purchase money, with costs of suit and attorney’s commission. On the same day, Alfred Evans, Esq., appeared, and, in pursuance of the power conferred by the warrant, confessed judgment in the Court of Common Pleas of Cambria county at No. 29, March Term 1887, in favor of the payee, and against the maker, for the amount of' the note. On this judgment an execution was issued to December Term, 1887, by virtue of which the land included in this action was sold to Weaver, who received a sheriff’s deed for it. In April, 1888, he brought this suit to recover possession of the land, and he relies on the title he acquired by the sheriff’s sale and conveyance to him.
In May, 1889, an inquisition was taken in pursuance of a commission issued for that purpose, finding that Brenner was then, and for the space of ten or twelve years preceding had been, a lunatic without lucid intervals. On the return of the inquisition a committee was appointed, who appeared, and disclaimed title to that portion of the land which Weaver sold to Brenner in 1882, and defended as to the residue on the ground that the judgment and all proceedings thereunder were void by reason of Brenner’s insanity. Considerable testimony was taken for the purpose of establishing and answering this defence, and at its close the learned judge directed a verdict for the plaintiff on the general principle that the sheriff’s deed gave him a right to the possession of the land against the party who was the defendant in the process on which it was sold. There was no evidence given or offered, to show that the land which was sold to Brenner in 1882 was worth less than the sum he agreed to pay for it, or that there was any fraud or bad [305]*305faith on tne part of the vendor in making the sale. The integrity and fairness of the settlement in consummation of which the note was given, were not questioned by the proofs or offers. The sole defence was the incapacity of Brenner, and that Weaver knew, or ought to have known of it. .
The proceedings in lunacy were instituted on the petition of Brenner’s brother-in-law, and probably for the purpose of making evidence to be used on the trial of the ejectment. Brenner was apparently in accord with the petitioner, and disposed to facilitate the proceedings, in the belief that in their successful issue he might find relief from the obligation he had contracted. They were ex parte, in the sense that there was no opposition to them, and no notice to the persons who might be injuriously affected by them. The inquisition thus taken was prima-facie evidence of the incapacity of its subject during the period therein named, and the appellant’s defence derives its principal support from it. The greater part of the additional testimony was from the mouths of Brenner’s relatives, and their opinions respecting his mehtal condition were based on his actions and utterances in religious meetings. It appears that he took a lively interest, but was not very efficient, in church and Sunday-school work, and that when he was engaged in it he was excitable, and in speech and manner eccentric and incoherent. It was his conduct while so engaged which furnished the basis of all the opinions adverse to his sanity. There was scarcely a scintilla of evidence of any want of capacity in business affairs, that he wasted any portion of his property, or that he made any bad bargains.
The theory of the appellant is that if Brenner was not competent to enter into a contract, and Weaver knew, or ought to' have known it, then the sale and all subsequent proceedings under it were void, and Weaver must be adjudged guilty of fraud in dealing with him, although there was no actual fraud in the transaction. In the view we take of this case, we-need not consider whether the evidence was sufficient to constitute-a defence in a suit upon the contract or note. The question which confronts us is whether the defence can be made in this action. It is a well-settled general rule that the parties to a judgment cannot impeach it in a collateral proceeding, for fraud perpetrated in obtaining it, or for disability existing at [306]*306the time of its rendition. If they can have it reviewed on appeal, or apply to the court in which it was entered to open or vacate it, orderly procedure requires that they employ one of these remedies. But a stranger to the judgment may assail it collaterally, if it was created or kept in force by collusion of the parties to it, for the purpose of defrauding him: 12 Am. & Eng. Encyc. Law, 147, and cases cited ; Hoffman v. Coster, 2 Wh. 453; Otterson v. Middleton, 102 Pa. 78.
It is true that in Etter v. Curtis, 7 W. & S. 170, it was held that in an action of debt upon a judgment confessed before a justice of the peace, the defendant may plead that he was an infant when the judgment was obtained and avail himself of it as a defence; but this was ruled distinctly upon the ground that it was the only way in which the defence could be made. The court said: “ A judgment against an infant in a court of record cannot be abated collaterally by the infant, as a judgment may by a stranger where it is collusive ; the remedy between^he parties being by writ of error, and the fact of infancy being triable per pais, instead of by inspection. No writ of error lies, however, to remove the judgment of a justice of the peace, and certiorari would correct no more than errors apparent on the face of it. What, then, does necessity require ? The Common Pleas must either try the fact of infancy by depositions on certiorari, or allow the infant to plead it to a scire facias or an action on the judgment, else there must be a failure of justice. We prefer the course which is less anomalous, and more consistent with the constitutional provision for trial by jury.” As there could be no review by appeal, and neither the Court of Common Pleas nor the magistrate had power to open the judgment, the defence was permitted as an exception to if not in violation of a settled rule, on the ground of necessity and to prevent a failure of justice. But, in Henry v. Brothers, 48 Pa. 70, which was a scire facias to revive a judgment entered on a note by virtue of a warrant of attorney attached, the defendant offered the record of proceedings in lunacy to show that he was not competent to execute the note and warrant on which the judgment was entered, and the offer was rejected. In Hope v. Everhart, 70 Pa. 231, a judgment was entered on a note and warrant given by a lunatic. The note contained a waiver of inquisition. The land of the lunatic was sold by [307]
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Opinion,
Mr. Justice McCollum :
A contract was entered into on the twenty-fourth of August, 1882, between Jacob J. Weaver and John Brenner, by which [304]*304the former agreed to sell, and the latter to buy, twenty-four acres of land in Summerhill township, Cambria county, for the sum of 1326.50, payable as follows: one hundred dollars, April 1, 1883; one hundred dollars, April 1, 1884; and the balance April 1, 1885. Brenner immediately took possession of the land, and continued in the occupancy and use of it, but neglected to pay the purchase money. On the sixteenth of November, 1886, Weaver brought an action of ejectment against him to compel its payment. The case was settled on the twenty-third of February, 1887, by the vendor conveying the land to the vendee, and taking his note at ninety days, with warrant to confess judgment for the unpaid purchase money, with costs of suit and attorney’s commission. On the same day, Alfred Evans, Esq., appeared, and, in pursuance of the power conferred by the warrant, confessed judgment in the Court of Common Pleas of Cambria county at No. 29, March Term 1887, in favor of the payee, and against the maker, for the amount of' the note. On this judgment an execution was issued to December Term, 1887, by virtue of which the land included in this action was sold to Weaver, who received a sheriff’s deed for it. In April, 1888, he brought this suit to recover possession of the land, and he relies on the title he acquired by the sheriff’s sale and conveyance to him.
In May, 1889, an inquisition was taken in pursuance of a commission issued for that purpose, finding that Brenner was then, and for the space of ten or twelve years preceding had been, a lunatic without lucid intervals. On the return of the inquisition a committee was appointed, who appeared, and disclaimed title to that portion of the land which Weaver sold to Brenner in 1882, and defended as to the residue on the ground that the judgment and all proceedings thereunder were void by reason of Brenner’s insanity. Considerable testimony was taken for the purpose of establishing and answering this defence, and at its close the learned judge directed a verdict for the plaintiff on the general principle that the sheriff’s deed gave him a right to the possession of the land against the party who was the defendant in the process on which it was sold. There was no evidence given or offered, to show that the land which was sold to Brenner in 1882 was worth less than the sum he agreed to pay for it, or that there was any fraud or bad [305]*305faith on tne part of the vendor in making the sale. The integrity and fairness of the settlement in consummation of which the note was given, were not questioned by the proofs or offers. The sole defence was the incapacity of Brenner, and that Weaver knew, or ought to have known of it. .
The proceedings in lunacy were instituted on the petition of Brenner’s brother-in-law, and probably for the purpose of making evidence to be used on the trial of the ejectment. Brenner was apparently in accord with the petitioner, and disposed to facilitate the proceedings, in the belief that in their successful issue he might find relief from the obligation he had contracted. They were ex parte, in the sense that there was no opposition to them, and no notice to the persons who might be injuriously affected by them. The inquisition thus taken was prima-facie evidence of the incapacity of its subject during the period therein named, and the appellant’s defence derives its principal support from it. The greater part of the additional testimony was from the mouths of Brenner’s relatives, and their opinions respecting his mehtal condition were based on his actions and utterances in religious meetings. It appears that he took a lively interest, but was not very efficient, in church and Sunday-school work, and that when he was engaged in it he was excitable, and in speech and manner eccentric and incoherent. It was his conduct while so engaged which furnished the basis of all the opinions adverse to his sanity. There was scarcely a scintilla of evidence of any want of capacity in business affairs, that he wasted any portion of his property, or that he made any bad bargains.
The theory of the appellant is that if Brenner was not competent to enter into a contract, and Weaver knew, or ought to' have known it, then the sale and all subsequent proceedings under it were void, and Weaver must be adjudged guilty of fraud in dealing with him, although there was no actual fraud in the transaction. In the view we take of this case, we-need not consider whether the evidence was sufficient to constitute-a defence in a suit upon the contract or note. The question which confronts us is whether the defence can be made in this action. It is a well-settled general rule that the parties to a judgment cannot impeach it in a collateral proceeding, for fraud perpetrated in obtaining it, or for disability existing at [306]*306the time of its rendition. If they can have it reviewed on appeal, or apply to the court in which it was entered to open or vacate it, orderly procedure requires that they employ one of these remedies. But a stranger to the judgment may assail it collaterally, if it was created or kept in force by collusion of the parties to it, for the purpose of defrauding him: 12 Am. & Eng. Encyc. Law, 147, and cases cited ; Hoffman v. Coster, 2 Wh. 453; Otterson v. Middleton, 102 Pa. 78.
It is true that in Etter v. Curtis, 7 W. & S. 170, it was held that in an action of debt upon a judgment confessed before a justice of the peace, the defendant may plead that he was an infant when the judgment was obtained and avail himself of it as a defence; but this was ruled distinctly upon the ground that it was the only way in which the defence could be made. The court said: “ A judgment against an infant in a court of record cannot be abated collaterally by the infant, as a judgment may by a stranger where it is collusive ; the remedy between^he parties being by writ of error, and the fact of infancy being triable per pais, instead of by inspection. No writ of error lies, however, to remove the judgment of a justice of the peace, and certiorari would correct no more than errors apparent on the face of it. What, then, does necessity require ? The Common Pleas must either try the fact of infancy by depositions on certiorari, or allow the infant to plead it to a scire facias or an action on the judgment, else there must be a failure of justice. We prefer the course which is less anomalous, and more consistent with the constitutional provision for trial by jury.” As there could be no review by appeal, and neither the Court of Common Pleas nor the magistrate had power to open the judgment, the defence was permitted as an exception to if not in violation of a settled rule, on the ground of necessity and to prevent a failure of justice. But, in Henry v. Brothers, 48 Pa. 70, which was a scire facias to revive a judgment entered on a note by virtue of a warrant of attorney attached, the defendant offered the record of proceedings in lunacy to show that he was not competent to execute the note and warrant on which the judgment was entered, and the offer was rejected. In Hope v. Everhart, 70 Pa. 231, a judgment was entered on a note and warrant given by a lunatic. The note contained a waiver of inquisition. The land of the lunatic was sold by [307]*307virtue of a fieri facias issued on tlie judgment; and in an action by his committee to recover the land from the purchaser at the sheriff’s sale, it was held that the waiver of inquisition was no part of the judgment, and if the defendant therein had not capacity to consent to it, and his want of capacity was known to the purchaser, he acquired no title by the sale. Mr. Justice Williams, in delivering the opinion of the court, said: “ This case turns on the question whether the waiver of inquisition was a part of the judgment on which the land in controversy was sold. If it was, then the defendant, though a lunatic, was bound; and the plaintiffs, who are his committee, cannot question its validity in this action ; ” and he then proceeded to show that the waiver was not a part of the judgment, and, referring to the position of the purchaser, said: “ He knew, or ought to have known, that a sale on the fieri facias without waiver of inquisition would convey no title; and, if he knew that the defendant was so destitute of understanding as to be incapable of assenting to a waiver, it was his own folly to purchase on the faith of it. But the facts offered to be shown should be clearly established by the evidence, before his title is declared void. Where all the forms of law have been observed in making judicial sales, titles should not be set aside without clear proof of such facts as would avoid the sale.” In the case last cited, the principle that the defendant in a judgment may not attack it collaterally was recognized and adhered to, but it was decided that a waiver contained in the note was not part of the judgment entered by the prothonotary under the act of 1806. This case was followed by Hageman v. Salisberry, 74 Pa. 280, in which it was held that a judgment upon warrant is the act of the court; that, if a judgment be confessed in a suit under terms, they are part of the record of the judgment, and qualify it; and that, if a judgment be confessed by an attorney, neither its regularity nor his authority can be questioned in a collateral action; and a distinction was drawn between the power of an attorney under the warrant, and the power of the prothonotary under the act already mentioned.
In the present case, as in Hageman v. Salisberry, the judgment was confessed by an attorney, and the waiver was a part of it. It follows from the principle stated, and the authorities cited in support of it, that the committee of the lunatic cannot, [308]*308in an action of ejectment, impeach the judgment on which the land was sold.
Judgment affirmed.