Cole v. Hall — 2 Hill & Den. 625

Majority

p. 625

Cole and others vs. Hall.

Headnote

Where a final judgment in partition, obtained in proceedings against unknown owners, comes in question collaterally, such owners are as fully concluded by it from questioning the fact of the plaintiff’s seisin, as if they had been made parties by name.

The proceedings previous to such judgment will be presumed regular, until the contrary appear.

Hence, though it turn out that the report of the commissioners was signed by only two of them, it must be intended prima facie that all met and deliberated.

Semble, that a final judgment in partition against unknown owners, though obtained without the publication of any notice, is not absolutely void so as to be impeachable collaterally, but merely irregular. Per Cowen, J.

p. 626

Where a verdict is taken subject to the opinion of the court, the facts must be stated, and not the mere evidence of them.

Ejectment, tried at the Oswego circuit in June, 1841, before Gridley, C. Judge. The action was. brought to recover a part of'lot No. 30, of the military township of Hannibal. It appeared on the part of the plaintiffs that in 1790, the lot in question was granted to Joseph Ten .Eyck by letters patent. Ten Eyck sold to John D. Coe, and he conveyed to Garrett Cottringer for life, in 1791. Cottringer died in 1816. In 1819, Coe sold to John D. Coe, Jun. and Matthew D. Coe, two of the plaintiffs, in fee; and in 1837, they conveyed to Cole, the other plaintiff. The defendant was in possession of the lot at the commencement of the suit. .

On the part of the defendant it was proved that, in 1797, Cottringer sold the whole of lot No. 30 to William Cooper, who, in 1809, conveyed one half thereof to Jesse Kellogg. In 1810, one McNair purchased Kellogg’s half, and in 1817, applied to the Oswego common pleas for partition of the lot, alleging that he was seised in fee of an undivided half thereof, and that he was ignorant of the names, rights or title of the other persons interested as tenants in common. The unknown owners made .default; and it was adjudged by the court that McNair was seised in fee of one half of the lot, and partition awarded. Three commissioners were accordingly appointed, two of whom re- ■ ported, setting off 358 acres to McNair. The report was confirmed and judgment of partition rendered, with an award of $29,28 costs against the unknown owners. A Ji. fa. for these costs was issued, and the premises in question sold thereon by the sheriff to McNair, who, in 1825, conveyed to Robert Hall, from whom the defendant derived title.

The foregoing among other facts unnecessary to be detailed, were stated in the usual form of a case containing the evidence given on the trial; from which it appeared that a verdict was taken for the plaintiffs, subject to the opinion of this court, with liberty to either party to convert the case into a bill of exceptions or special verdict.'

p. 627

B. D. Noxon, for the plaintiffs.

W. F. Allen, for the defendant.

By the Court,

Under our statute, the proceedings in partition were, in legal effect, the same as if the suit had been instituted against the tenants in common with McNair, by name. It was competent for them to contest his seisin in that suit; but it is too late to do so in this collateral proceeding. He appears, however, upon the proof, to have been in upon a sufficient seisin.

But it was said on the argument that no proper affidavit was made, nor any notice published; and that only two of the commissioners met and deliberated. It would be enough to answer, that here was jurisdiction and a judgment; that such matters of mere irregularity cannot be enquired into collaterally.^[1] But the objections do not appear to have any foundation in fact. The least we can do is to presume that all was regular till the contrary is shown. Here the defects were not even suggested on the trial.

The verdict professes to have been taken subject to the opinion of this court. There is scarcely a fact so stated in the case, that. we can notice it under our rule prescribing the form of such verdicts. The proceedings in partition and the sheriff’s deed- come nearest to a compliance with the rule; and we have consented to consider the case, though we can by no means consent that, as a form, it should be drawn into precedent.^[2]

The defendant derived a complete title under the sheriff’s deed to McNair.

Judgment for defendant.

(a) (a) а) See Butler v. Mayor, &c. of New-York, ( 1 Hill, 489 , 496.) But see Denning v. Corbin, ( 11 Wend. 647 ,) in connection with what was said by Bronson, J in Bloom, v. Burdick, ( 1 Hill, 141 .)

(b) (b) See Banyer and others v. Ellice, ( 1 Hill, 23 .)