OPINION OP THE COURT BY
PERRY, C. J.
(Banks, J., dissenting.)
This is an action of ejectment. Trial was had without jury and judgment was rendered for the plaintiff.
The land in question was by deed dated March 8, 1928, conveyed to the plaintiff by one Choy Yin who at one time was the husband of the present defendant. Mr. and Mrs. Choy Yin were divorced by decree of a judge of the circuit court of the first judicial circuit, dated March 24, 1921. In a suit in equity brought for the purpose of securing a cancellation of the deed on the ground of fraud, the relief prayed for was denied by this court.
Henry Smith, Receiver,
v.
Choy Yin and Wong Kwai Tong,
30 Haw. 948. This court there held that even assuming that the grantor had fraudulently intended by his conveyance to defeat his creditors the grantee did not share in that fraudulent intent and took without knowledge or notice of any equities of others. The defense in the ejectment case was that, by virtue of certain orders, decrees and stipulations made and entered into in the divorce case the defendant was entitled to the possession of the property.
The clerk’s minutes, in the divorce case, under date of March 24,1921, contained the following entry: “The court grants the divorce as prayed for, on the ground of extreme cruelty, effective upon the signing of the decree of divorce. The libellant is awarded the custody of the minor chil
dren of tlie libel and the use of the house she is now occupying (belonging to the libellee).” The divorce decree of the same date provides
inter alia
that the “libellee be * * * required to furnish a suitable home for libellant and her children for the lifetime of libellant.” As appears from the language of the clerk’s minute just quoted it was entered, or at least the oral order thereby recorded was uttered, before the entry of the decree of divorce. The deeree supplanted the earlier oral order or expression by the court of intention to make an order or decree. The decree is the last and formal statement of what the court decided and awarded. There is no ambiguity in the decree. What it required was that the husband furnish
“a
suitable home” for the wife and children. Any suitable home would meet the requirements of that decree. It was not thereby required that the husband should furnish to the wife and children the home which the parties had theretofore occupied. It would be entirely in conformity with this feature of that decree that the husband should convey the old home to another and provide a new and suitable home for his family.
Under date of December 7,1926, an entry in the clerk’s minutes in the same court and cause was made reading: “By stipulation of counsel, the court ordered that Choy Yin, the libellee, pay alimony in the sum of $50.00 per month, beginning December 1, 1926; Mrs. Choy Yin to have the right to occupy the home she is now living in.”
Section 2979, R. L. 1925, reads as follows: “Permanent alimony; maintenance of children. Upon granting a divorce for the adultery or other offense amounting thereto, of the husband, the judge may make such further decree or order against the defendant, compelling him to provide for the maintenance of the children of the marriage, and to provide such suitable allowance for the wife, for her support, as the judge shall deem just and reason
able, having regard to the ability of the husband, the character and situation of the parties, and all other circumstances of the case.” This is the only section of our statutes relating to an allowance by the court in a divorce case for the support of the Avife. In
Nobrega
v. Nobrega, 13 Haw. 654, it was held by this court that the divorce court has no power under this statute to order a division of the husband’s real estate or to vest title to a part thereof in the Avife. See also
Gomes
v. Gomes, 26 Haw. 128. An order compelling the husband to furnish a certain named house and lot to the wife for her home for her life or until further order of the court would be, in effect, a setting apart to her of an interest in the land and would upon the authority of
Nobrega
v.
Nobrega
be equally beyond the poAver of the divorce court. In our opinion, to make such an aAvard is to act in an excess of jurisdiction or Avithout jurisdiction at all. It is a question of jurisdiction as distinguished from mere error of procedure. It is true that the divorce court had jurisdiction of the parties and of the general subject matter of the severance of their marital relations. But there Avere limitations imposed by the statute upon the poAver of the court in such cases and one of the limitations Avas that stated in the
Nobrega
case. It is Avell established that even Avhen a court has jurisdiction over the parties and the subject matter, yet it may lack jurisdiction to make the particular decree Avliich it attempts to make; and in such a case the particular decree made in excess of jurisdiction is void and may be attacked collaterally. “Although a court may have jurisdiction over the parties and the subject matter, yet if it makes a decree vidiieh is not Avithin the powers granted to it by the laAV of its organization, its decree is void.”
United States
v.
Walker,
109 U. S. 258, 266.
“It is a well settled principle that although a court may have jurisdiction of a case yet if it appears from the
record that it did not have jurisdiction to enter the decree and the particular judgment thereon that it did enter then that decree and judgment may be collaterally impeached.”
Ritchie
v.
Sayers,
100 Fed. 520, 532.
“A statement of the rule in most of the cases is that if the court has jurisdiction of the subject matter and of the parties, no error in exercising that jurisdiction may be urged collaterally. Such statement is sufficiently exact in those cases, as the objections there urged go only to these two elements of jurisdiction. But there is another element of equal importance. Jurisdiction, in its fullest sense, is not restricted to the subject matter and the parties. If the court lacks jurisdiction to render or exceeds its jurisdiction in rendering the particular judgment in the particular case, such judgment is subject to collateral attack even though the court had jurisdiction of the parties and of the subject matter.”
People
v.
Burke,
72 Colo. 186, 501.
“The doctrine invoked by counsel, that, where a court has once acquired jurisdiction, it has a right to decide every question which arises in the cause, and its judgment, however erroneous, cannot be collaterally assailed, is undoubtedly correct as a general proposition, but, like all general propositions, is subject to many qualifications in its application.
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OPINION OP THE COURT BY
PERRY, C. J.
(Banks, J., dissenting.)
This is an action of ejectment. Trial was had without jury and judgment was rendered for the plaintiff.
The land in question was by deed dated March 8, 1928, conveyed to the plaintiff by one Choy Yin who at one time was the husband of the present defendant. Mr. and Mrs. Choy Yin were divorced by decree of a judge of the circuit court of the first judicial circuit, dated March 24, 1921. In a suit in equity brought for the purpose of securing a cancellation of the deed on the ground of fraud, the relief prayed for was denied by this court.
Henry Smith, Receiver,
v.
Choy Yin and Wong Kwai Tong,
30 Haw. 948. This court there held that even assuming that the grantor had fraudulently intended by his conveyance to defeat his creditors the grantee did not share in that fraudulent intent and took without knowledge or notice of any equities of others. The defense in the ejectment case was that, by virtue of certain orders, decrees and stipulations made and entered into in the divorce case the defendant was entitled to the possession of the property.
The clerk’s minutes, in the divorce case, under date of March 24,1921, contained the following entry: “The court grants the divorce as prayed for, on the ground of extreme cruelty, effective upon the signing of the decree of divorce. The libellant is awarded the custody of the minor chil
dren of tlie libel and the use of the house she is now occupying (belonging to the libellee).” The divorce decree of the same date provides
inter alia
that the “libellee be * * * required to furnish a suitable home for libellant and her children for the lifetime of libellant.” As appears from the language of the clerk’s minute just quoted it was entered, or at least the oral order thereby recorded was uttered, before the entry of the decree of divorce. The deeree supplanted the earlier oral order or expression by the court of intention to make an order or decree. The decree is the last and formal statement of what the court decided and awarded. There is no ambiguity in the decree. What it required was that the husband furnish
“a
suitable home” for the wife and children. Any suitable home would meet the requirements of that decree. It was not thereby required that the husband should furnish to the wife and children the home which the parties had theretofore occupied. It would be entirely in conformity with this feature of that decree that the husband should convey the old home to another and provide a new and suitable home for his family.
Under date of December 7,1926, an entry in the clerk’s minutes in the same court and cause was made reading: “By stipulation of counsel, the court ordered that Choy Yin, the libellee, pay alimony in the sum of $50.00 per month, beginning December 1, 1926; Mrs. Choy Yin to have the right to occupy the home she is now living in.”
Section 2979, R. L. 1925, reads as follows: “Permanent alimony; maintenance of children. Upon granting a divorce for the adultery or other offense amounting thereto, of the husband, the judge may make such further decree or order against the defendant, compelling him to provide for the maintenance of the children of the marriage, and to provide such suitable allowance for the wife, for her support, as the judge shall deem just and reason
able, having regard to the ability of the husband, the character and situation of the parties, and all other circumstances of the case.” This is the only section of our statutes relating to an allowance by the court in a divorce case for the support of the Avife. In
Nobrega
v. Nobrega, 13 Haw. 654, it was held by this court that the divorce court has no power under this statute to order a division of the husband’s real estate or to vest title to a part thereof in the Avife. See also
Gomes
v. Gomes, 26 Haw. 128. An order compelling the husband to furnish a certain named house and lot to the wife for her home for her life or until further order of the court would be, in effect, a setting apart to her of an interest in the land and would upon the authority of
Nobrega
v.
Nobrega
be equally beyond the poAver of the divorce court. In our opinion, to make such an aAvard is to act in an excess of jurisdiction or Avithout jurisdiction at all. It is a question of jurisdiction as distinguished from mere error of procedure. It is true that the divorce court had jurisdiction of the parties and of the general subject matter of the severance of their marital relations. But there Avere limitations imposed by the statute upon the poAver of the court in such cases and one of the limitations Avas that stated in the
Nobrega
case. It is Avell established that even Avhen a court has jurisdiction over the parties and the subject matter, yet it may lack jurisdiction to make the particular decree Avliich it attempts to make; and in such a case the particular decree made in excess of jurisdiction is void and may be attacked collaterally. “Although a court may have jurisdiction over the parties and the subject matter, yet if it makes a decree vidiieh is not Avithin the powers granted to it by the laAV of its organization, its decree is void.”
United States
v.
Walker,
109 U. S. 258, 266.
“It is a well settled principle that although a court may have jurisdiction of a case yet if it appears from the
record that it did not have jurisdiction to enter the decree and the particular judgment thereon that it did enter then that decree and judgment may be collaterally impeached.”
Ritchie
v.
Sayers,
100 Fed. 520, 532.
“A statement of the rule in most of the cases is that if the court has jurisdiction of the subject matter and of the parties, no error in exercising that jurisdiction may be urged collaterally. Such statement is sufficiently exact in those cases, as the objections there urged go only to these two elements of jurisdiction. But there is another element of equal importance. Jurisdiction, in its fullest sense, is not restricted to the subject matter and the parties. If the court lacks jurisdiction to render or exceeds its jurisdiction in rendering the particular judgment in the particular case, such judgment is subject to collateral attack even though the court had jurisdiction of the parties and of the subject matter.”
People
v.
Burke,
72 Colo. 186, 501.
“The doctrine invoked by counsel, that, where a court has once acquired jurisdiction, it has a right to decide every question which arises in the cause, and its judgment, however erroneous, cannot be collaterally assailed, is undoubtedly correct as a general proposition, but, like all general propositions, is subject to many qualifications in its application. All courts, even the highest, are more or less limited in their jurisdiction: they are limited to particular classes of actions, such as civil or criminal; or to particular modes of administering relief, such as legal or equitable; or to transactions of a special character, such as arise on navigable waters, or relate to the testimentary disposition of estates; or to the use of particular process in the enforcement of their judgments.
Norton
v.
Meador,
Circuit Court for California. Though the court may possess jurisdiction of a cause, of the subject matter, and of the parties, it is still limited in its modes of procedure, and in the extent'and character of its judgments. It must
act judicially in all things, and cannot then transcend the power conferred by the law. If, for instance, the action be upon a money demand, the court, notwithstanding its complete jurisdiction over the subject and parties, has no power to pass judgment of imprisonment in the penitentiary upon the defendant. If the action be for a libel or personal tort, the court cannot order in the case a specific performance of a contract. If the action be for the possession of real property, the court is powerless to admit in the case the probate of a will. Instances of this kind show that the general doctrine stated by counsel is subject to many qualifications. The judgments mentioned, given in the cases supposed, would not be merely, erroneous: they would be absolutely void; because the court in rendering them would transcend the limits of its authority in those cases.”
Windsor
v.
McVeigh,
93 U. S. 274, 282.
“It is no answer to this to say that the court had jurisdiction of the person of the prisoner, and of the offence under the statute. It by no means follows that these two facts make valid, however erroneous it may be, any judgment the court may render in such case. If a justice of the peace, having jurisdiction to fine for a misdemeanor, and with the party charged properly before him, should render a judgment that he be hung, it would simply be void. Why void? Because he had no power to render such a judgment. So, if a court of general jurisdiction should, on an indictment for libel, render a judgment of death, or confiscation of property, it would, for the same reason, be void. Or if on an indictment for treason the court should render a judgment of attaint, whereby the heirs of the criminal could not inherit his property, which should by the judgment of the court be confiscated to the State, it Avould be void as to the attainder, because in excess of the authority of the court, and forbidden by the Constitution.”
Ex parte Lange,
18 Wall. 163, 176, 177. •
In onr opinion the judicial order providing that the wife should “have the right to occupy the home she is now living in” was beyond the jurisdiction of the court and void. The stipulation of the parties could not and did not confer upon- the court the jurisdiction that it otherwise lacked to make the order. As a judicial decree the provision has no validity.
Assuming that the stipulation has some force as a contract of the parties and that it is binding on the husband,— what was the contract? It was that the wife should have the right to occupy the home. No period of time for the occupation was stated. If the court were to say now that it was to continue for the remainder of the wife’s life, or for the remainder of the husband’s life, or during the minority of the children, or until the wife remarries, it would be adding a term not stipulated by the parties. This, of course, the court cannot do. The contract as made was terminable at any time at the option of the husband,- — • at the risk of having the court make some other provision for the wife in lieu of that rescinded. Even the judicial decree, if it had had any validity as such, would have been terminable at any time at the option of the court. Assuming that the purchaser, the present plaintiff in the action of ejectment, would be bound, upon the theory of an estoppel, to the same extent that the husband would be bound, that would be only until the revocation by the husband of the permission to the wife to occupy the home. If the purchaser was bound to make inquiry and had made inquiry, he would have found merely that there was a contract by the husband, terminable at his will. It need hardly be added that the deed from the husband to Wong Kwai Tong was in effect a termination or revocation of the husband’s consent.
The judgment of the court beloAv is affirmed.
M. K. Ashford (Thompson, Beebe & Winn
on the briefs) for plaintiff in error.
F. SchnacJc
(also on the briefs) for defendant in error.