Over a quarter of a century ago the lands, which are the subject of this action of ejectment, were sold in pursuance of a decree of sale in an action of partition, to which every person having an interest in the premises were parties. The premises were struck down on the sale to Ann O'Donoghue, the mother and guardian of certain infant defendants, and the sale being thereafter duly confirmed by an order of the court, a conveyance was executed and delivered to her on the 25th day of May, 1870. Six years later she executed a mortgage upon the premises to secure a loan of $1,500. The interest not being paid, the mortgage was foreclosed, and the mortgagee became the purchaser of the land at the foreclosure sale, and later conveyed the property to this defendant. The claim of the plaintiffs in this action is that their title was not divested by the sale made in pursuance of the judgment in the partition action, notwithstanding the statute declares that the effect of a final judgment in partition is binding and conclusive upon the plaintiff and upon each defendant upon whom the summons is served, and effectually bars each of those persons who is not a purchaser at the sale from all right, title and interest in the property sold. The claim put forward is that the judgment in the partition suit is wholly void for want of jurisdiction in the court to render it. It is not denied that the court had jurisdiction of the persons of the parties to the action, but it is said that there were undivided shares held in trust for these plaintiffs, who were then infants, and *Page 104 that the sale of such property was contrary to the will, and, therefore, forbidden by statute; that the Supreme Court in assuming jurisdiction did that which it was forbidden by statute to do, and, therefore, its judgment was without jurisdiction and void. This presents a question which is entitled to careful consideration in this court, for it is of importance not only because of the large amount of property indirectly involved in this litigation, but also for the reason that it may constitute a precedent tending away from the permanency and security of titles. It is for such purpose, as well as "in the interest of the peace of society," that the courts have firmly established the rule that unless a judgment is void for want of jurisdiction, no errors in the proceedings, whatever their nature, can be considered when the judgment is brought into question collaterally.
There is a very decided difference of opinion whether it was the purpose of O'Donoghue, the plaintiffs' testator, to forbid the partition of the property, and it is argued with much force that if such was the intent of the will, and the court should so hold, then the provision in question is void because in contravention of the statute prohibiting alienation of estates for a longer period than two lives in being. The questions are fairly debatable, as is evidenced by the fact that the learned judge at Special Term reached the conclusion that "a fair interpretation of the will I think gives to the court the power to decree a sale of the property if partition cannot be so made as to give substantial right to all parties," while the learned justice, who wrote for the General Term, was equally positive that the purpose of the codicil was to prevent a sale of the lands, which by the will the executors had been authorized to make. But it is not my purpose to discuss the provisions of the will, for I prefer to rest my vote upon the broader ground that the court granting the judgment in partition had jurisdiction of the parties and of the subject-matter, and, hence, its judgment cannot be attacked in this collateral action.
It is an interesting feature of this controversy that the question *Page 105 whether the will forbade a sale of this property has been the subject of much debate heretofore, and the occasion of a contrariety of opinion by the courts, and it suggests, to say the least, that the court before whom the partition action came and who rendered the judgment, might well have been of the same opinion as the learned justice who delivered the opinion of the Special Term on this trial, and presumably he was, otherwise a sale of the premises would not have been decreed. It appears that an attorney appeared for the guardian ad litem and the infants in the partition action and interposed the usual answer, submitting their rights and interests to the protection of the court. Suppose that in addition he had alleged in his answer that the will forbade the sale of the real estate until the infants should have reached their majorities and that, therefore, under the statute forbidding a sale of property contrary to the provisions of a will, the complaint should be dismissed and assume that the issues thus presented by the pleadings, upon coming on for trial, had been decided in favor of the plaintiff, and a sale of the premises adjudged, would it be argued by any one that such a judgment could be held to be void in a collateral proceeding? That a court having general jurisdiction of the subject of partition of lands, which requires it, among other things, to determine in each action whether a plaintiff has such an interest as entitles him to maintain partition, exceeds its jurisdiction if it erroneously decides that he has? That if, as is claimed in this case, the plaintiff prayed for and was entitled to actual partition, but not to a sale of the infant's share in the premises, a decision by the court holding that partition could not advantageously be had and decreeing a sale of the premises, would be an act wholly without jurisdiction and void? And that the parties to the action would have any other remedy than by direct review? Well, it happens that the guardianad litem did not tender to the plaintiff the issue which might have been tendered, so there was no contest. But the question was necessarily before the court for decision because the will and the codicil were before it, and before deciding that partition *Page 106 should be decreed it had unavoidably to decide that that instrument did not prevent it. The complaint alleged its purpose, which was either to partition, or, in the event that partition could not be had, to sell the lands that were described in the complaint, and a copy of the will and codicil as the source of title was also given. The opportunity, and the duty as well, was, therefore, presented to the court to decide every question involved, and presumably that duty was performed. All the parties were before the court, and the infants were represented in the manner provided by statute, and if the question was not contested, it could have been, and the parties are firmly bound as to every matter that could have been tried or decided as an incident to or essentially connected with the subject-matter of the litigation within the purview of the partition action. (Jordan v. Van Epps, 85 N.Y. 427.)
Our attention is called to a number of authorities asserting the proposition, which of course is not in controversy at all, that a judgment rendered without jurisdiction is void, but we have not been invited to examine any case in this state holding that in an action of partition the Supreme Court has not the power to determine whether the partition or sale of the premises involved in the action is in violation of the provisions of a will, and if the determination be that it is not and a sale be decreed, that such judgment is wholly void, and may be so declared in another action. We shall presently show that the authorities are distinctly and positively the other way. In this connection attention is called to the case of Bolton v.Schriever (135 N.Y. 65) as one of the more recent cases showing the settled policy of the courts. The opinion was written by Judge, now Mr. Justice PECKHAM, all of the court concurring, except GRAY, J., taking no part. That, too, was an action of ejectment, and through it the plaintiff attempted to attack a decree of the Surrogate's Court admitting a will to probate upon the ground that the testator was not an inhabitant of the surrogate's county at the time of his death, and, therefore, the surrogate was without jurisdiction to probate the will, and his decree was void. Later on I shall attempt *Page 107 to show that the court had jurisdiction of the subject-matter in the partition action, whatever may have been the character of the provisions of the will; but, if it be assumed that the will presented a question of jurisdiction, then we have the same question up that there was in Bolton's case. It was decided in that case that the surrogate was bound to inquire and decide whether the testator was an inhabitant of the county at the time of his death, and if that officer decided that he was, upon evidence legally tending to support the decision, the decision cannot, in the absence of fraud or collusion, be questioned collaterally. In that case, as in this, there was no contest, the infants appearing by guardian; but the court held that the decree was in effect a decision that the defendant was, at the time of his death, an inhabitant of the said county, and that this could not be questioned in an action of ejectment brought by the heirs. It was also held that if there was no evidence on the subject of inhabitancy except the sworn allegation in the petition, the surrogate could have relied on the fact so stated, and his decision would be regarded as conclusive, subject only to attack in a direct proceeding to review it.
The fundamental error of the judgment before us lies in the assumption that the court did not have jurisdiction of the subject-matter. The subject-matter was partition of real estate. The specific question involved was whether there should be partition or sale of the lands described in the complaint. Whether the plaintiff was entitled to partition or sale, or should have his complaint dismissed, depended upon the evidence presented, an important part of which was the will and the codicil. Thus was presented one merely of the many important questions that the Supreme Court is required to pass upon under the legislative grant of power touching the partition or sale of lands, by which full and complete authority over the general subject is conferred upon the court, a grant of power that carries with it full authority to consider and pass upon all questions necessary to the due execution of the power conferred. Jurisdiction of the subject-matter is power *Page 108 lawfully conferred to adjudge concerning the general question involved; to act upon the general abstract question, and to decide whether particular facts call for the exercise of the abstract power; but it does not depend upon the ultimate existence of a good cause of action in the particular case. (Hunt v. Hunt, 72 N.Y. 217; Bergman v. Wolff, 33 N.Y.S.R. 499; Lange v. Benedict, 73 N.Y. 12; Jordan v. Van Epps,85 N.Y. 436.)
This action was begun many years after the decision of this court in Blakeley v. Calder (15 N.Y. 617), in which case the purchaser at a partition sale declined to complete his purchase on the ground that the plaintiff was neither in possession nor entitled to the immediate possession, and consequently the court had no jurisdiction to entertain the action. But it was held that whether the plaintiff was entitled or not, yet the court having general jurisdiction of the subject-matter and jurisdiction of the parties in interest, they were concluded by the judgment, and the purchaser at the sale under it derived a perfect title. The court said in part: "The Supreme Court is one of general jurisdiction in law and equity, and has jurisdiction of all actions for partition. When this case was presented, it was its province to decide whether it was a proper one in which to award a partition or a sale, and if its decision was erroneous, the remedy was by appeal. As no one but the parties to the action can call in question the purchaser's title, and as they are bound by the judgment, there is no reason why the sale should not be consummated." That decision is precisely in point, is well founded in principle, is unchallenged by any later decision of this court, and should be accepted in the disposition of the question we are now considering as a controlling authority upon the point it decided, as it has been in the following cases:Clemens v. Clemens (37 N.Y. 59-72; Howell v. Mills (56 N.Y. 226-229); Sullivan v. Sullivan (66 N.Y. 37); Brevoort v. Brevoort (70 N.Y. 136); Jordan v. Van Epps (85 N.Y. 427 -436); Cromwell v. Hull (97 N.Y. 209); Woodhull v.Little (102 N.Y. 165).
An examination of these cases will show that this court has *Page 109 always agreed fully with the decision in Blakeley v. Calder (supra), and that it has never doubted that the subject-matter, of which the courts must have jurisdiction as well as of the parties in order to decree a sale or partition, is the partition of real estate. Howell v. Mills (supra) was an action of partition. The jurisdiction of the court to entertain the proceedings was the only question considered in this court. Chief Judge CHURCH, writing in behalf of a unanimous court, said denial of jurisdiction "is predicated upon the ground that the petition does not show that the plaintiff was entitled to bring the action, or that the facts stated in the petition brought the case within the statute authorizing the court to entertain an action for partition. * * * Whether the Supreme Court erred or not, we think the unanimous decision of this court, in Blakeley v.Calder (15 N.Y. 617), is decisive upon the question of jurisdiction. The precise question involved here was involved in that case; and we should hesitate about disturbing the decision, if we doubted its correctness, but it is proper to say that we approve of it. The Supreme Court possesses general jurisdiction in law and equity, and exercised jurisdiction in law prior to the statute. (47 N.Y. 21.) The proceedings, it is true, must be regulated by statute, but it is competent for the court to determine when the statute has been complied with. In this case the court acquired jurisdiction of the parties; and it had jurisdiction of the subject-matter. If it erred, the error could only be reviewed by exceptions properly taken." Some confusion in the consideration this question has received has no doubt arisen from an ill-founded impression that the action of partition stands on substantially the same footing as special statutory proceedings, such, for instance, as are provided for the mortgaging or sale of infants' lands. Cases of that character have been cited, as if in point, such as Rogers v. Dill (6 Hill, 416); Losey v. Stanley (147 N.Y. 560), and Warren v.Union Bank (157 N.Y. 259). In such proceeding, as the court said in Warren's case, the requirements of the statute must be strictly followed, and unless this be done the court is without jurisdiction, *Page 110 and the orders made by it are void. And in Losey's case, in which a collateral attack was successfully waged against an order mortgaging the real estate of infants, Chief Judge ANDREWS, after asserting that a proceeding to mortgage or direct the sale of infants' real estate is purely statutory, and that a court of equity has no such inherent power to accomplish such a result, apparently to prevent possible misapprehension as to the language employed, called attention a new to the distinction that may be found running throughout the books. He said: "The question of the inherent power of a court of equity to order a sale of an infant's real property, upon the theory of a supposed benefit to him, is quite distinct from its acknowledged power in the enforcement and protection of trusts and from the power of courts in the exercise of their ordinary jurisdiction to establish or enforce rights of property between parties to a litigation, whether infants or adults."
For these reasons I am unable to agree with the conclusion reached by Judge O'BRIEN, that the judgment in the partition action was rendered by a court without jurisdiction, and, therefore, void, but concur in the result on the ground that the conveyance to the guardian was in contravention of the statute, and void.
All concur in the second ground of opinion of O'BRIEN, J. As to the first ground GRAY and BARTLETT, JJ., concur, while HAIGHT and MARTIN, JJ., concur with PARKER, Ch. J., VANN, J., not voting on that ground.
Order affirmed and judgment absolute ordered for plaintiffs on the stipulation, with costs. *Page 111