Lewis, P.,
delivered the opinion of the court.
This was an action of ejectment in the circuit court of Augusta county, removed thereto for trial from the circuit court of Alleghany county. The plaintiff claimed title to the land in controversy by deed from David I. Wilson, to whom it had been conveyed in 1840 by Thos. J. Stuart, commissioner of sale of the circuit superior court of law and chancery of Augusta county, acting under a decree of that court, in a suit begun therein, in 1829. The defendants claimed under Richard Wilcher, to whom a patent for the land was granted by the Commonwealth in 1852. At the trial the defendants sought to attack the plaintiff’s title by the introduction of parol evidence to show that the decree under which his grantor claimed was void, on the ground that at the time the suit was brought, in which that decree was rendered, the defendant, Martin, was dead. The circuit court excluded the evidence, and the defendants excepted; and the question thus presented is the first question now to be considered.
[616]*616Jurisdiction of the cause and parties is essential to the conclusiveness of a judgment or decree. To acquire jurisdiction of the defendant, it is necessary that in some appropriate way he be notified of the pendency of the suit. If upon inspection of the record, it appears that no such notice has been given, the judgment or decree is void. On the other hand, if it be a judgment or decree of a domestic court of general jurisdiction, and the record declares that notice has been given, such declaration cannot be contradicted by extraneous proof.' In such cases, the judgment, or decree is sustained, not because a judgment rendered without notice is good, but because the law does not permit the introduction of evidence to overthrow that which, for reasons of public policy, it treats as absolute verity. The record is conclusively presumed to speak the truth, and can be tried only by inspection. This results from the power of the court to pass upon every question which arises in the cause, including the facts necessary to the' exercise of its jurisdiction, and as to which, therefore, its judgment, unless obtained by fraud or collusion, is binding until reversed(on every other court. ••And especially is this so in respect to decrees under which sales are made to bonafide purchasers. If it were otherwise, if purchasers could be held responsible for the errors of the court, or could be required to look beyond the proceedings in the cause to find authority for the court to act, then such sales, as has weil been said, would be but snares for honest men. This has often been held by the supreme court of the United States. In Grignon's Lessee v. Astor, 2 How. 319, referring to its former decisions on the subject, the court said: “ They are founded on the oldest and most sacred principles of the common law. Time has consecrated them; the courts of the States have followed, and this court has never departed from them. They are rules of property, on which the repose of the country depends. Titles acquired under the [617]*617proceedings of courts of competent jurisdiction must be deemed inviolable in collateral action, or none can know what is his own.” See also Lancaster v. Wilson, 27 Gratt. 624. In the present case the decree under which the sale to Wilson was made, was rendered by a court having jurisdiction of the subject matter of the suit, and the proceedings throughout are regular on their face. The defendant, Martin, was proceeded against as a person in being and as a non-resident of the State. An order of publication was accordingly made, and duly and regularly executed. Its effect, therefore, is equivalent to an averment on the record that he had in fact been summoned,—an averment which in this collateral proceeding cannot be contradicted. For, apart from what has already been said, the rights of those who seek to do so, claiming as they do under Wilcher, the patentee in the patent issued in 1852, were not only acquired long after the date of the decree, but are antagonistic to the rights of all the parties to the suit in which that decree was rendered. It is plain, therefore, that neither they, nor any under whom they claim, were prejudiced by that decree, and ought not now to be permitted to assail it.
Mr. Freeman, in his work on Judgments, § 335 (3d ed.), after referring to the right of strangers to impeach a judgment, and the grounds upon which the right is placed, says, “It must not, however, be understood that all strangers are entitled to impeach a judgment. It is only those strangers who, if the judgment were given full credit and effect, would be prejudiced in regard to some pre-existing right, that are permitted to impeach the judgment.” This we think is" the true doctrine—certainly in a case like this, where fraud or collusion is not allegéd—and upon examination, it will be found that most of the cases relied on by the counsel for the plaintiffs in error do not at all conflict with this view. The testimony offered by the defendants was, therefore, rightly excluded.
[618]*618The next question relates to the effect of the order of the ■circuit court of Alleghany county, entered on the 17th day of April, 1852, dismissing the caveat proceedings begun by Wilson, the grantor of the plaintiff, against Richard Wilcher. That order is as follows: “ By consent of parties, and for reasons appearing to the court, ordered that this cause be dismissed.” At the trial the defendants asked the court to instruct the jury that those proceedings were evidence of a disclaimer by Wilson of tenancy to him by Wilcher, and that the order therein was a bar to the prosecution of the plaintiff’s action, if the jury should find that the land in controversy was embraced in those proceedings. The court refused to give the instruction as asked for, but did instruct the jury that those proceedings were evidence of a disclaimer by Wilson of tenancy to him by Wilcher. It is insisted by the plaintiffs in error that the order dismissing the caveat suit was in its nature and effect like a retraxit, nr an order dismissing the case “agreed,” and bars the plaintiff from maintaining any further action to recover the land embraced in that suit. It is well settled otherwise. In order that a judgment may constitute a bar to ■another suit, the point in controversy must be the same in both cases, and must in the first have been determined on its merits. 1 Greenl. Evid., sec’s 529, 530; United States v. Hughes, 4 Wall. 232. An order simply dismissing the suit is not a determination on the merits, and so is not a bar to the maintenance of a second suit for the same cause of action. Haldeman and others v. The United States, 91 U. S. 584. And so'it has been held by this court that an order dismissing a caveat, when not on the merits, is not conclusive of the controversy. Hunter and others v. Hall, 1 Call, 206. The instruction was, therefore, properly refused.
On the motion of the plaintiff, the following instruction was given to the jury: “If the jury believe from the evidence that John Oilver and Richard Wilcher and Peggy [619]*619Kirkpatrick and her brothers and sisters, or any of them, entered upon the land in controversy, or any part ■ thereof, as squatters, but disclaiming any title to the land, and afterwards recognized the title of David I.
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Lewis, P.,
delivered the opinion of the court.
This was an action of ejectment in the circuit court of Augusta county, removed thereto for trial from the circuit court of Alleghany county. The plaintiff claimed title to the land in controversy by deed from David I. Wilson, to whom it had been conveyed in 1840 by Thos. J. Stuart, commissioner of sale of the circuit superior court of law and chancery of Augusta county, acting under a decree of that court, in a suit begun therein, in 1829. The defendants claimed under Richard Wilcher, to whom a patent for the land was granted by the Commonwealth in 1852. At the trial the defendants sought to attack the plaintiff’s title by the introduction of parol evidence to show that the decree under which his grantor claimed was void, on the ground that at the time the suit was brought, in which that decree was rendered, the defendant, Martin, was dead. The circuit court excluded the evidence, and the defendants excepted; and the question thus presented is the first question now to be considered.
[616]*616Jurisdiction of the cause and parties is essential to the conclusiveness of a judgment or decree. To acquire jurisdiction of the defendant, it is necessary that in some appropriate way he be notified of the pendency of the suit. If upon inspection of the record, it appears that no such notice has been given, the judgment or decree is void. On the other hand, if it be a judgment or decree of a domestic court of general jurisdiction, and the record declares that notice has been given, such declaration cannot be contradicted by extraneous proof.' In such cases, the judgment, or decree is sustained, not because a judgment rendered without notice is good, but because the law does not permit the introduction of evidence to overthrow that which, for reasons of public policy, it treats as absolute verity. The record is conclusively presumed to speak the truth, and can be tried only by inspection. This results from the power of the court to pass upon every question which arises in the cause, including the facts necessary to the' exercise of its jurisdiction, and as to which, therefore, its judgment, unless obtained by fraud or collusion, is binding until reversed(on every other court. ••And especially is this so in respect to decrees under which sales are made to bonafide purchasers. If it were otherwise, if purchasers could be held responsible for the errors of the court, or could be required to look beyond the proceedings in the cause to find authority for the court to act, then such sales, as has weil been said, would be but snares for honest men. This has often been held by the supreme court of the United States. In Grignon's Lessee v. Astor, 2 How. 319, referring to its former decisions on the subject, the court said: “ They are founded on the oldest and most sacred principles of the common law. Time has consecrated them; the courts of the States have followed, and this court has never departed from them. They are rules of property, on which the repose of the country depends. Titles acquired under the [617]*617proceedings of courts of competent jurisdiction must be deemed inviolable in collateral action, or none can know what is his own.” See also Lancaster v. Wilson, 27 Gratt. 624. In the present case the decree under which the sale to Wilson was made, was rendered by a court having jurisdiction of the subject matter of the suit, and the proceedings throughout are regular on their face. The defendant, Martin, was proceeded against as a person in being and as a non-resident of the State. An order of publication was accordingly made, and duly and regularly executed. Its effect, therefore, is equivalent to an averment on the record that he had in fact been summoned,—an averment which in this collateral proceeding cannot be contradicted. For, apart from what has already been said, the rights of those who seek to do so, claiming as they do under Wilcher, the patentee in the patent issued in 1852, were not only acquired long after the date of the decree, but are antagonistic to the rights of all the parties to the suit in which that decree was rendered. It is plain, therefore, that neither they, nor any under whom they claim, were prejudiced by that decree, and ought not now to be permitted to assail it.
Mr. Freeman, in his work on Judgments, § 335 (3d ed.), after referring to the right of strangers to impeach a judgment, and the grounds upon which the right is placed, says, “It must not, however, be understood that all strangers are entitled to impeach a judgment. It is only those strangers who, if the judgment were given full credit and effect, would be prejudiced in regard to some pre-existing right, that are permitted to impeach the judgment.” This we think is" the true doctrine—certainly in a case like this, where fraud or collusion is not allegéd—and upon examination, it will be found that most of the cases relied on by the counsel for the plaintiffs in error do not at all conflict with this view. The testimony offered by the defendants was, therefore, rightly excluded.
[618]*618The next question relates to the effect of the order of the ■circuit court of Alleghany county, entered on the 17th day of April, 1852, dismissing the caveat proceedings begun by Wilson, the grantor of the plaintiff, against Richard Wilcher. That order is as follows: “ By consent of parties, and for reasons appearing to the court, ordered that this cause be dismissed.” At the trial the defendants asked the court to instruct the jury that those proceedings were evidence of a disclaimer by Wilson of tenancy to him by Wilcher, and that the order therein was a bar to the prosecution of the plaintiff’s action, if the jury should find that the land in controversy was embraced in those proceedings. The court refused to give the instruction as asked for, but did instruct the jury that those proceedings were evidence of a disclaimer by Wilson of tenancy to him by Wilcher. It is insisted by the plaintiffs in error that the order dismissing the caveat suit was in its nature and effect like a retraxit, nr an order dismissing the case “agreed,” and bars the plaintiff from maintaining any further action to recover the land embraced in that suit. It is well settled otherwise. In order that a judgment may constitute a bar to ■another suit, the point in controversy must be the same in both cases, and must in the first have been determined on its merits. 1 Greenl. Evid., sec’s 529, 530; United States v. Hughes, 4 Wall. 232. An order simply dismissing the suit is not a determination on the merits, and so is not a bar to the maintenance of a second suit for the same cause of action. Haldeman and others v. The United States, 91 U. S. 584. And so'it has been held by this court that an order dismissing a caveat, when not on the merits, is not conclusive of the controversy. Hunter and others v. Hall, 1 Call, 206. The instruction was, therefore, properly refused.
On the motion of the plaintiff, the following instruction was given to the jury: “If the jury believe from the evidence that John Oilver and Richard Wilcher and Peggy [619]*619Kirkpatrick and her brothers and sisters, or any of them, entered upon the land in controversy, or any part ■ thereof, as squatters, but disclaiming any title to the land, and afterwards recognized the title of David I. Wilson thereto, they, or such of them as so entered and recognized his title, became thereby the tenants of the said Wilson; and said tenancy could not be ended by any disclaimer afterwards, unless said Wilson, or those entitled to the land claiming under him, had actual notice of such disclaimer, and no adversary possession by them, or any of them, could commence .until after such disclaimer and actual. notice had been given.”
The giving of this instruction is the subject of the third and last bill of exceptions. While it is true that mere occupancy of land does not necessarily imply the relation of landlord and tenant, yet if the occupant acknowledge the title of the owner, and continue to occupy the land by his leave and license, he ceases to be a mere trespasser, and his possession is that of him whose title he has acknowledged. He cannot, therefore, by afterwards acknowledging the title of another be considered, consistently with good faith and fair dealing, to hold under the latter adversely to the former until after notice in some way to the claimant, or those claiming under him, whose title he first acknowledged. This is substantially the meaning of the instruction given, and the court did not err in giving it.
It is lastly insisted by the plaintiffs in error (citing Duncan v. Helms, 8 Gratt. 68), that it was incumbent on the plaintiff in the court below to show that the persons alleged in the bill, in the suit of Hudson and Wilson against Martin and others, to be the heirs at law of Robert Morris, were so in fact. The bill in that suit alleged that title to the land mentioned therein had probably been made by Benjamin Martin to Robert Morris in the lifetime of the latter, and accordingly certain persons alleged to be his [620]*620heirs-at-law were made parties defendant. But it does not appear that Martin ever conveyed to Morris, or that his heirs ever acquired any interest in the land in controversy. The circumstances of the case tend to sustain the contrary view. But however that may he, the alleged outstanding title in Morris’ heirs, sought to he shown hy the defendants to defeat the plaintiff’s right of recovery, cannot avail for that purpose. An outstanding title to defeat the action must he a present, subsisting and operative legal title, on which the owner or owners could recover if asserting it hy action. 3 Wait’s Actions and Defences, 109, and cases cited. Such a title is not shown by the record in this-case to he outstanding in Morris’ heirs. And for the foregoing reasons we are of opinion that there is no error in the judgment, and that it must he affirmed.
Judgment aeeirmed.