Opinion by
Gkeene, J.
This was an action of right, commenced in September 1846, by Marsh, Lee & Delavan against Mitchell D. Wright. The land claimed in the declaration, is described as the S. E. quarter of sec. 23,- and the W. half of S. W. quarter of sec. 24 in T. 65 N. of É. 5 W-., and is a portion of the land known as the “ half breed tract” in Lee county.
Declaration and pleas to the merits filed in the form provided by the statute. Dev./Stat., 533. Trial before Hon/ Geo. H. Williams and a jury, was commenced June 2d, and on the 10th of the same month a verdict was returned* and a judgment thereon rendered for the plaintiffs below/
On the trial, it appears that the plaintiffs proved the location of the land in dispute as being comprised within tli'e “"half breed tract,” and that the defendant was in possession of it before and after the commencement of this suit, thereupon all the treaties between the United States, and the Sac and Fox tribe of Indians together with the act of Congress, and the territorial laws in relation to the [96] cession, transfer and partition of tbe “half breed tract,” were by agreement admitted in evidence subject to all legal objections. Tlae record of a judgment under which, said tract was divided among the respective claimants, was also admitted in evidence. The defendant interposed several objections to the admission of this record, and these objections comprise the principal questions of law involved in the trial of this cause. Before entering upon the discussion of these questions, we will refer to the various treaties and laws affecting the land in question, and state the leading features of the partition proceedings.
The half breed tract formerly a portion of the Louisiana purchase, is a reservation of Jancl made by the Sac and Fox tribes of Indians in a treaty concluded with the United States August 4th, 1824, by which those tribes relinquished to the United States all their right, title, interest and claim to the lands which the said Sac and Fox tribes have, or claim, within the limits of the state of Missouri, which are situated, lying and being between the Mississippi and Missouri rivers, and a line running from the Missouri at the entrance of the Kansas river, north one hundred miles to the north west corner of the state of Missouri, from thence east to the Mississippi. It being understood that the small tract of land lying between the rivers Des Moines and Mississippi, and the section of the above line between the Mississippi and the Des Moines is intended for the use of the.half breeds belonging to the Sac and Fox nation. They holding it however, by the same title, and in the same manner that other Indian titles are held. 7 U. S. Statutes At Large, 229. The tract of land thus reserved and designated for the use of the Sac and Fox half breeds contains about 119,000 acres. It will be observed that this tract was not in the state of Missouri, and consequently not comprised within the boundaries of land ceded by the above treaty to the United States, and still the reservation contains definite boundaries, and is sufficiently appropriated to the use intended. But as it was not comprehended in the cession to the United States, it [97] might be assumed that they acquired no other control or jurisdiction over it than they have in other lands possessed and retained by Indian tribes, and that the Sacs and Foxes held a reversionary interest in the tract upon the extinction of their half breeds. This state of things, however, did not long continue, for by another treaty concluded at Fort Armstrong, in Sept. 1832, the said half breed tract was included in the cession of lands then made by those tribes to the "United States. 7 U. S. Statutes At large, 374. Hence it must be concluded that by the treaty of 1824, the Sac and Fox half breeds acquired a right of property, and possession in the reserved tract of land, under the limitation that they should hold “ by the same title and in the same manner as other Indian lands are held,” and by the treaty of 1832 the cession made by those two tribes released to the United States their reversionary interest, and with it every vestige of their authority and control over the land. B y an act of Congress approved June 30th, 1834, the qualified interest held by the half breeds in the land in question, was converted into an absolute estate in fee. This act relinquished and vested in said half breeds all the right, title and interest which might accrue or revert to the United States, to the reservation of land,” describing it as reserved by treaty of 1824, and then the act proceeds to vest them “ with full power and authority to transfer their portions thereof by sale, devise or descent according to the laws of Missouri.” 4 U. S. Stat. at Large, 741 chap. 167.
The half breeds availing themselves of the right, fee and alienation thus acquired, transferred their interest to a large extent to other individuals.
On the 14th of April, 1840, Josiah Spalding and twenty-two others filed a petition in the district court of Lee _county for a partition of the tract " among the respective owners. The petition named Euphrosine Antaya and several others as defendants. The petitioners set forth that they have a legal title to, and are seized in fee of twenty-three and" one third full shares, and 5135 acres of land in [98] that tract commonly called tbe half breed tract.” The petition then describes the situation and boundaries of the tract alleging that it contains “ 119,000 acres more or less.” The particular claim or share of each petitioner with the name of the person or persons from whom derived, is defined in the petition, and in referring to the interest of the defendants named in the petition it avez-s, that they, their heirs and assigns, and other persons, whose names and places of residence are unknown to your petitioners, are tenants in common with your petitioners in said premises. To this petition is appended the affidavit of one of the attorneys for the plaintiffs that the facts therein set forth are true, to the best of his knowledge and belief. A writ of summons was issued and returned that the defendants therein named were “not found,” and thereupon at the April term of the district court an order of publication was made. At the October term following, a record entry appears in these words: “On this day came the petitioners by Keid and Johnston, their attorneys, and made proof of the publication of the notice ordered to be made at the April term, 1840.” This notice sets forth “that a petition was filed on &c., by &c., against &c., and is now pending wherein the petitioners pray that partition may be made of the following real estate (describing it,) and the said defendants and all other persons interested in the said property are requested to appear and answer said petition on &c., or the proceedings had in the cause thereof, will be binding and conclusive on them forever.” Attached to a copy of the notice is the affidavit of John H. McKinney then publisher of the Iowa Territorial Gazette, in which he swore that the notice had been published in that paper for twelve consecutive weeks, &c. At the said October term, additional parties were on application admitted as plaintiffs to the petition; and several persons made their appearance as defendants, and time was given them to file their answers. At the April term 1841, all the defendants named and not named in the petition, appeared and an-ewered except Euphrosine Ant-aya, and in their answers [99] set forth their respective titles; and by consent the court tried the cause, and entered a judgment of partition. In setting forth the inducement and the action of the court in the premises, the judgment recites as follows: “In this case said defendants having appeared by their counsel respectively and filed their answers to the petition, stated and produced their respective claims, aud exhibited ■their proofs, in some instances the original conveyances, and in others authentic copies of conveyances by which the same are held and their said respective claims, and those of the petitioners by their counsel respectively, being by consent submitted to the court for adjudication and partition, according to law, and the court being satisfied by sufficient proofs, that the .publication required by the act entitled “ an act’ to provide for the partition of real property” has been duly made, and no other persons known or unknown having appeared or made any claim or objection to said partition, and the said claims of the said parties now before the court, petitioners and defendants, and their respective proofs and conveyances being by the court heard and considered, it is therefore by the consideration of the court and with the consent of the said parties, this 8th day of May, A. D. 1841, ordered and adjudged, that the claims of rights of the said parties respectively to the undivided portions of the land mentioned and described in said petition, amount in the whole to one hundred and one equal portions, and that of these Marsh, Lee & Dela-van, trustees for the claimants under the articles of association dated Oct. 22d, 1836, filed in this case, and as trustees for persons interested under said articles, are entitled to 41 shares, &c.” The judgment then sets forth the undivided portions to which the other defendants and the petitioners were respectively entitled, and ordered that they should be confirmed accordingly, and that partition of the tract should be equally and fairly made, among the parties, petitioners and defendants to the exclusion of all other persons. The judgment designated Samuel B. Ayers, Harmon Booth and Joseph Webster, as commissioners to [100] make tbe partition into one hundred and one shares of equal value, and report the same to the court for confirmation. At tbe October term, 1841, of said court, tbe commissioners presented their report, dividing tbe land into shares as they bad been directed, excepting certain islands in tbe Mississippi and Des Moines rivers, which are reported to be so situated that partition cotild not be made of them without prejudice to the owners, and they therefore recommend that they be sold. By consent of counsel and all the parties concerned, the court then ordered, adjudged and decreed that the report and all things therein contained be Ratified and confirmed; also ordered, the allotment of shares to be made by the commissioners with specific directions. The judgment or decree of partition, the report of the commissioners designating particular property Under each share as numbered and divided by them, the final judgment of confirmation and the allotment of the various shares to the respective owners are set forth in detail and with clearness on the record. So far as this record discloses the proceedings., they appear to have been conducted with fairness, deliberation and a particular regard to the regulations of the statute. Every important órder in the partition appears to have been made by consent of all the parties concerned. The record shows that the land in question is included in that which was set apart by the allotments under the partition to the plaintiffs below, and this constituted the only evidence of their title to the premises. The principal questions raised for adjudication are in relation to the admissibility of this record as evidence. "We will proceed to consider the various objections urged to the partition.
1. It is contended that the territorial court which rendered the judgment of partition must be considered under our state organisation as a foreign court. As the authentication of the record was not questioned in the court below, this point cannot be entertained as an objection to the record in this particular. But the foreign character of the territorial court is also urged [101] to detract from the authenticity and concinsiveness of the record, to remove those presumptions of law which would otherwise apply in its favor. It may well be questioned, whether this would be the effect of the partition record even if it should be considered the adjudication of a foreign court. Such at least could not-be the effect if we should be governed by the weight of English authorities. The decisions of the American courts upon this point have been various and conflicting. All agree however, that the record of a decree or judgment would be at least prima, facie evidence of correctness, and many have affirmed the English doctrine,^ that it would be conclusive if the adjudication was definitive and made by a court of competent jurisdiction. But the determination of this question is not necessarily involved in the trial of this cause. We can by no means arrive at the conclusion that our territorial court should be regarded as a foreign tribunal, and as á consequence it is unnecessary in this case to decide what would be the effect of a record from a-foreign court. ¥e have carefully examined the arguments and authorities Which counsel have ingeniously presented, in attempting to show that the district courts of the territory of Iowa should be adjudged as foreign when records emanate from them to the district courts of the state of Iowa, but we can see no good reason in fact or in law, for thus regarding them. In what way could'this change in our form of government so completely estrange and alienate our territorial courts? By this change our former courts were not transferred to a foreign soil, nor their records entrusted to foreign hands. No rights which had been acquired, no proceedings which had been perfected or commenced under our territorial courts were relinquished or abated by our assuming state sovereignty. Under the thirteenth article of our state constitution, judicial proceedings, claims and -rights are continued as if no change had taken place in the government; the same laws were continued in force until repealed, and even the same officers civil and military are authorized to act until suspended. Independent [102] of tbe connecting link existing between our territorial and state courts ex necessitate rei, we find them bound together under the same sovereignty by constitutional provision. So far from having been expatriated by our constitution and new form of government, it will be observed that our territorial courts were not at first even suspended, but were ultimately merged and perpetuated into state courts. Proceedings commenced in the former were conducted to final judgment in the latter. Even the judges and clerks in the one were continued for a time in the other. They were both constituted within the same territorial limits; appointed to adjudicate within the same venues, upon the same realty and among the same people; and thus far the records of the two courts have generally been entered in the same books. They are preserved in the same offices; under the charge and keeping of the same clerks; and are alike subject to the inspection of our citizens. Why, then, should the records of our former courts be regarded as foreign by our present courts ? Those of our territorial courts, except in cases of a strictly federal character or jurisdiction have become the property of the state by appropriate and legitimate descent. They are properly retained and controlled by our state courts, and copies may be authenticated by them for the use of those who may be interested in them. In thus concluding that our territorial records are as much under our state jurisdiction and are as domestic in their character as are those of our state courts, we have not overlooked the decision of the supreme court of the United States in Hunt v. Palao, 4 Howard 589. This was a case of federal jurisdiction, cognizable only before a court of the United States; a case over which no state could exercise authority or control, and consequently it is not applicable to the question at bar. An act of Congress approved Feb. 22d, 1848, in relation to the records of our territorial courts, recognizes the transfer of all such records to the state excepting the records of a federal character, and even those, the respective clerks are authorized to retain, and upon application by any person interested [103] mate and certify a full and .complete copy of tbe same to tbe cleric of tbe district court of tbe United States, so far as itf can be done without mutilating tbe records of tbe territorial courts. See Laws of 30tb Con. 1st session, p. 8 §3. These various considerations,-we think clearly establish tbe domestic character of our territorial courts as predecessors of our state courts. Beatty v. Ross, 1 Branch 188.
2. It is urged that the district court which rendered the decree was one of inferior and limited jurisdiction. In support of this position, counsel have cited 2 McLean 126; 1 Kent’s Com. 303; 2 U. S. Cond. 31, 405; 2 Howard U. S. 21; 6 ib. 39. These authorities pertain exclusively to tbe jurisdiction of tbe circuit and district courts of tbe United States, and have no bearing whatever upon the territorial district courts, nor do tbe authorities cited bold that those United States courts are of inferior jurisdiction. They are limited but not inferior. Their proceedings therefore, are not nullities even if their jurisdiction does not appear of record, and if not reversed for that defect those proceedings are conclusive evidence between parties and privies. McCormick v. Sullivant, 10 Wheat. 192; Turner v. Bank of N. A., 4 Dallas 8; Reed v. Vaughn, 10 Mis. 447. If then the circuit and district courts of the United States are not of inferior jurisdiction, a fortiori the territorial courts are not, for the latter are not only invested with the same extent of jurisdiction as the former in proceedings of a federal character, Lorimer v. State Bank of Ill., Morris 223, but also the general common law jurisdiction usually imparted to state courts of record. The 9th section of the Iowa organic law provides that the several courts thereby created, both appellate and original, shall be as limited by law, and that the supreme and district courts respectively shall have a chancery as well as a common law jurisdiction. The territorial district courts, in addition to the federal powers conferred upon them, -were invested with extended and general jurisdiction over actions real, personal and mixed. Under this general jurisdiction they were authorized to try and determine ac[104] cording to the course of the common law, all ordinary actions both local and transitory. They were also invested with a special jurisdiction conferred by legislative enactment, in proceedings which could not be entertained as actions at common law. The term inferior courts in a strict and technical sense, is only applicable to courts of a limited and special jurisdiction, in which the proceedings are not according to the course of the common law, but defined by statutory regulations. It must be obvious that our territorial district courts cannot be included under that term. They were endowed with all the general powers and universal attributes of common law jurisdiction. Their authority was general and superior to all but the supreme court. Justices of the peace, county commissioners and probate courts were all subordinate and inferior to them. In one sense, in one connection only can they be regarded as inferior tribunals, and that is in relation to the supreme or appellate courts before which their judgments might be taken for revision. Still their powers are general, their jurisdiction in legal contemplation is not limited or inferior. Many authorities in relation to superior and inferior courts may be found collected in 3 Cow & Hill’s Notes to Phil. Ev. n. n. 691, 2, 3, 4. But it is contended that if the district court which rendered the decree, did possess general jurisdiction, it acted in the partition proceedings under special authority conferred by statute, and was consequently quoad hoc, an inferior or limited court. If in such proceedings the court possessed no authority beyond that conferred by statute, this position could not be controverted. And if the court was thus limited in jurisdiction, it will not be questioned that the course prescribed by the statute ought to have been observed with at least substantial exactness, and every fact necessary to show jurisdiction, ought to appear on the face of the proceedings. Under this view of the case various objections are urged to show that the proceedings were not in accordance with the partition act, and consequently nugatory.
3. As preliminary to these objections it, is averred that [105] the district court, in making tbe partition, could only act as a court of chancery. This position is assumed in order to show that the proceedings should have been conducted within the limits, and under the regulations, of equity jurisprudence. It may be well to remark upon the powers of the district court, independent' of the statutes. The -doctrinéis now universally conceded, that courts of equity may exercise a general concurrent jurisdiction with courts of law in all partition cases. --Nor is equity jurisdiction limited to such eases only as are relievable at law, but in making partition, equity will generally follow the analogies of the law and extend relief in all cases where, by rules of law, it would be regarded as appropriate, and also in many cases where those rules would not furnish a plain, complete and adequate remedy. Mitford’s Eq. Pl. 209; 1 Story’s Eq. Jur. 646, 658.
-At common law the writ of partition may be traced to a very remote period, but the benefits of that writ could only be extended to coparceners, until 31 and 32 Henry YIII. c. c. 1 & 32, by which joint tenants and tenants in common might be required by writ of partition to divide their lands, 2. Black. Com. 185,194. A jurisdiction thus extended to common law courts, by statutes of so old a date since which, much that is common law has taken its origin, it may well be assumed.that common law courts might inherently exercise that extended jurisdiction. This conclusion is necessarily embraced in that advanced by Judge Story and other elementary writers; that in partition proceedings, courts of law have general concurrent jurisdiction with courts of equity. Story’s Eq. Jur. 658. And in either court, principles of common law would obtain in testing the title or rights of the respective claimants before entering a decree or judgment of partition. We are of the opinion then that our territorial district courts, independent of the partition act, had general jurisdiction of partition proceedings, both at law and in equity.
The question now recurs, -does the statute providing for the partition of real property, Rev. Stat. 458, confine cases [106] of partition within the limits of equitable jurisdiction? We are unable to find any clause in that statute which will justify an affirmative answer. It is neither made an action at law nor a proceeding in chancery, but the principles of both are united and applied to the statute regulations. The act provides for a petition and answer, and other proceedings, as in equity. It also provides for a service by summons, for issues of fact and trials by jury, for the rendering of judgments and for writs and assignments of errors, and other proceedings, as at law; §§2, 10, 12, 13, 14, 16, 19, 36, 49, 56, 63, 64 and 65. Section 56 provides that the proceedings authorized by the act are intended as a substitute for all partitions in chancery, as well as at law, and the court is authorized to exercise equity powers except as therein otherwise provided. The act generally contemplates the exercise of common law powers. The last four sections of the statute clearly an-' thorize proceedings at law. Section 62 declares “that if the petitioners for any partition become nonsuit, or suffer a discontinuance, or a verdict shall pass against them, or judgment shall be rendered against them on demurrer, they shall pay costs, to be recovered and collected as in personal actions.” The next section provi des “ that upon any final judgment, rendered pursuant to the provisions of the act, a writ of error may Toe brought, c&c., in the same memner as in personal actions.” And the last section provides that “judgment may be given by the court above, either for affirmance or reversal in part or in whole, or a new adjudication of the matter may be directed in the court below. The proceedings in other respects shall be the same as in personal actions.” Evidently this act does not sustain the point made by counsel, that in making partition the court was confined to chancery jurisdiction. The jurisdiction of the court was threefold: 1. It was invested with all the cumulative and special powers created by the statute. 2. It retained all chancery attributes except as otherwise provided by the act. 8. It retained all its inherent common law authority so far as it could be exer[107] cised consistently with tbe. two preceding powers. The three jurisdictions are comprised in and are more or less exercised in all partition suits,under that act. The requirements of the statute, so far as they are especially substituted for equity and common law proceedings, are paramount, but beyond such special substitution, law and chancery interpose, with unabated and general concurrent authority. Hence, we conclude that even in cases of partition under our statute, the district court connot be considered quoad hoc, as inferior or limited. The doctrine will not be questioned that the general jurisdiction of a court cannot be taken away unless by express words of exclusion. The statute in question has only enlarged and united powers previously existing in the court, and modified the proceedings under those powers, and therefore there is no reason why the same liberal rule should not be applicable to support the presumption that the court acted correctly and by competent authority.
But before deciding upon the admissibility and conclusiveness of the partition record, it may be well to examine the several objections urged to the partition proceedings. One point made is, that the petition does not describe the respective interests of all the joint owners. Nor, if their names were unknown, does it state that fact. In this particular it is true, the petition is not sufficiently specific and certain, but this is far from being a fatal defect, or one which can involve a question of jurisdiction. The petition described the land with certainty, averred that the parties owned it as tenants in common, and prayed for a partition thereof among the respective owners. In a word, the petition contained all the allegations necessary to confer jurisdiction upon the court to act in the premises, but it omits to describe the interest of unknown owners. Such a defect in form might have been good cause for demurrer, and if demurred to, might have been amended to a literal compliance with the statute. But it is by no means a defect which could impeach the proceedings, or be taken advantage of after judgment, much less does it amount to a [108] defect- wbicb can be collaterally assailed. ' We have carefully examined the authorities cited by counsel upon this point, but we can see nothing in them inimical to our conclusion.
Another objection presented is, that the petition was not verified by such an affidavit as the law requires; all that the statute directs upon this point is, that “the petition shall be verified by affidavit.” Rev. Stat. -459, §2. We have already noticed that the petition was verified by the affidavit of one of the attornies. But it is alleged that such an affidavit is not reconcilable with the object and spirit of the statute, that it should have been made by the plaintiffs named in the petition, or at least by some of them. It would be difficult, we think, to apply any rule of construction to the statute which can justify this position. The act does not require, nor can we see any necessity for its requiring, the affidavit to be made by the petitioners themselves. If a petition is verified by affidavit it is strictly conformable to the statute, and it can make no difference whether it is made by a petitioner or by Ms attorney, or by any other person who may feel himself sufficiently acquainted with the facts averred, to justify him in making the affidavit. But if the affidavit was insufficient the objection comes too late. It was not an element of jurisdiction without which the court could not act. It was merely a formal part of the petition, a preliminary form in commencing the suit, and if objectionable or insufficient the question should have been raised before answers were filed. After answering, it must be considered as waived. Besides, if the affidavit was defectively made, it but amounts to one of those irregularities which could not be collaterally questioned even if the proceedings had taken place before an inferior tribunal. It is next objected that the court acquired no jurisdiction over the unknown owners in consequence of the defective publication. The record, it is true, does not disclose publication to the full extent required by the 9th section of the partition act. That section provides for the publication of notice for twelve weeks [109] successively in some newspaper printed most convenient to the place where the court was held, and for four successive weeks in some newspaper printed at the seat of government. The twelve weeks publication appears to have been regularly made, but the record is silent as to the other,