The parties to this suit entered into a written agreement, in Sept. 1846, to refer to certain persons ah action pending between them in the Supreme Judicial Court in this county, and all claims and demands between them in law or in equity; and it was agreed that the defendant should perfect the title to the plaintiff in the late homestead and upper farms of the defendant in Parsonsfield, a part of which he had conveyed to the plaintiff, so that the plaintiff should have a good title to the whole of said farms, free from attachments and other incumbrances, to the satisfaction of the referees. And they were to allow to the defendant a suitable consideration therefor, in their award upon that and other matters in the submission specified ; and to adjudicate upon all conveyances between the parties, and any mortgages of the defendant, purchased by and assigned to the plaintiff, and the consid*118©ration expressed therein and paid for the same, so as to do substantial justice and equity.
The parties were heard by the referees, who made their report, stating therein, “and after the said Whitten had perfected the title of said Pease, as provided in said-rule, we have agreed to report and do report that the said Whitten shall recover of said Pease the sum of thirteen hundred dollars and eighty-four cents, debt or damage, and costs of court and of reference, &c., and this is in full of all matters and thipgs referred to us by the annexed rule.” This report was accepted and judgment entered thereon. Subsequently, on March 25, 1848, the plaintiff paid certain taxes assessed against the defendant in the town of Parsonsfield, in the years 1842 and 1843, upon the land where he lived, under the impression that said taxes were an incumbrance ; which taxes were not known to the referees at the túne of the hearing before them, and consequently, not considered in making up the award.
The first question submitted to us, is whether this action, which is assumpsit for money had and received, and for money paid, laid out and expended, can be sustained under the agreement between the parties, to refer the suit pending in this court, in September, 1846.
The merits of a judgment can never be impeached or questioned in a counter agtion, by the judgment debtor, either directly or collaterally. Whitcomb v. Williams, 4 Pick. 228; Weeks v. Thomas, 21 Maine, 465.
A judgment upon a report of referees, who adjudicated matters legally submitted to then- determination, is equally valid as when founded upon a verdict of a jury.
By the contract of submission, in the case at bar, the defendant was bound to make a perfect title to the plaintiff in the estate referred to therein. The referees were empowered by the parties in that contract to determine, whether that title was made perfect. After this should be shown to their satisfaction, they were authorized, by the submission, to consider and adjudicate upon other matters between the parties. To *119entitle the defendant to an award in his favor, for claims preferred by him against the plaintiff within the scope of their agreement, it was required that the title of the plaintiff should be perfect, in the judgment of the referees. Upon this point, the defendant would be expected to adduce the evidence of title to the referees. At the same time, the plaintiff had an opportunity of showing the existence of attachments and other incumbrances; and generally any defect of title in himself. Whether the title of the plaintiff was defective or otherwise, was an issue distinctly and fully raised by the submission. It was before that tribunal alone, mutually chosen by the parties, that the question of title was to be submitted. In pursuance of the agreement, that question was heard by the referees, and their judgment was, that the defendant had perfected that title in the plaintiff as provided in the rulo ; they made report accordingly and judgment was rendered thereon. In the judgment, the finding the title perfect in the plaintiff was an essential element. It was the basis of the award of a sum in damages in favor of the defendant. If evidence had been offered before the referees, that the taxes against the defendant w.ere outstanding and unpaid, it was for them to determine whether or not, under all the facts they constituted an incumbrance; if they should consider that it was an incumbrance, the defendant might have removed it by discharging the taxes in season for the referees to proceed further under the submission. How far the discharge of them would affect the damages to be awarded to the defendant, cannot now he known, and it is entirely unimportant that the inquiry should now be made.
The present action can be maintained only upon the ground, that the judgment of the referees was erroneous on the issue of title ; not upon the facts as they were exhibited in evidence before them, but as actually existing. If the title was really perfect, as the referees found, the plaintiff does not contend that he has a valid claim against the defendant. If the unpaid taxes were in fact an incumbrance upon the land, the case shows, that this was not made known to the referees. It *120might have been material evidence for the plaintiff upon that point, and he could have presented it. It was omitted, and the referees decided the point upon such proof as was offered. The judgment was rendered upon a report when all matters submitted were heard ; and determined by the evidence which the parties chose to introduce. The most that can be said for the plaintiff is, that in the report, which was the foundation of the judgment, a sum of money was awarded to the defendant, larger than it would have been, if the plaintiff had presented the same evidence, which he now relies upon in support of the present action. The judgment is conclusive as long as it remains. It cannot be affected in any manner, by the evidence relied upon by the plaintiff. To give it effect in the mode attempted, would be a substantial impeachment of this judgment, although the evidence is offered in support of another action.
The question which we have examined has been considered upon the hypothesis, that the taxes paid by the plaintiff were legally assessed and constituted an incumbrance upon the land; and that this incumbrance was not made known to the referees at any time before they made their report. Whether the taxes were an incumbrance or not, no opinion is given.
Judgment for the defendant.