ON PETITION FOR REHEARING.
WILLIAM A. LEE, J.Counsel for respondent, in his brief and application for a rehearing, earnestly contends that the decision in this case is contrary to the law of the case as announced in the former opinion, Williams v. Sherman, 35 Ida. 169, 21 A. L. R. 353, 205 Pac. 259, that it is fundamentally unsound, and that it will unsettle title and property rights heretofore considered settled.
*502In view of the apparent candor of counsel in this contention, we deem it advisable to make a further statement of the principles of law upon which the decision is based, and which we regard as controlling as to the issue involved. We' disclaim any purpose to modify or in any manner qualify the rule of law so frequently approved by this and other courts, that where upon an appeal of a cause the law with reference to any question presented by such appeal is declared, it remains the law of that case upon any subsequent appeal, or the other equally well-settled rule referred to, that the judgments of courts of general jurisdiction may not be impeached by collateral attack, but that they import absolute verity.
With regard to respondent’s contention which has been urged upon former appeals of this case, that an entryman on a government homestead entry may alienate the same, and which is again strenuously insisted upon, we think the question is sufficiently discussed in Williams v. Sherman, supra, for as was said in Wilcox v. Jackson ex dem. M’Connel, 13 Pet. 498, 10 L. ed. 264, Congress is vested by the constitution with the power of disposing of and making needful rules and regulations concerning the public domain of the United States, and has declared that its patent is necessary to pass a complete title, and whenever the question in any court, state or federal, is as to whether title to land which had once been the property of the United States had passed, the question must be resolved by the federal law; otherwise, the laws of the state would be paramount to those of Congress. This being true, it follows that the decisions of the federal supreme court are conclusive where they have passed upon the question, as we think they have in the decision cited.
With regard to the contention that the law' of the case as announced in the former opinion has not been followed, it is sufficient to say that all the opinion referred to holds is that where lands are described in foreclosure proceedings by legal description, this court cannot take judicial notice of the fact that such lands are a part of the unsurveyed *503public domain, nor can such fact be shown after judgment by the affidavit of persons who are parties to the action, but such fact must be shown by competent evidence. It is further held that the production of the official records of the government is a proper way of showing such fact, and that when it is made to appear by proper evidence in a proper proceeding that a court has assumed jurisdiction to decree the sale of unpatented public lands to satisfy the indebtedness of private individuals, such decree and order of sale is void, and no rights are acquired under it.
Where courts are without jurisdiction of the subject matter upon which they assume to act, their proceedings are absolutely void. They constitute no justification, and all persons concerned in executing such judgments are in law trespassers. (Elliott v. Piersol, 1 Pet. 328, 7 L. ed. 164; Lessee of Hickey v. Stewart, 3 How. 750, 11 L. ed. 814; 1 Black on Judgments, 2d ed., sec. 218; Ex parte Gardner, 22 Nev. 280, 39 Pac. 570; 7 R. C. L. 1042.) A court which is competent to decide its own jurisdiction may determine that question at any time in the proceedings of the cause, whenever that fact is made to appear, either before or after judgment. (Town of Wayne v. Caldwell, 1 S. D. 483, 36 Am. St. 750, 47 N. W. 547; 15 C. J. 852, secs. 171, 174; 1 Black on Judgments, 2d ed., sec. 218; 7 R. C. L. 1042, sec. 75; Green v. Creighton, 10 Smedes & M. (Miss.) 159, 48 Am. Dec. 742.)
A defendant may waive or cure a defective service of process, but if the want of jurisdiction goes to the subject matter of the action, it cannot be waived, and the judgment being void, it is the duty of the court to recognize its want of jurisdiction over the subject matter even when no objection is made, and to decline taking further action whenever such want of jurisdiction is made to appear. (1 Black on Judgments, 2d ed., sec. 217; 7 R. C. L. 1042, sec. 75; Freeman on Judgments, sec. 120; Freer v. Davis, 52 W. Va. 1, 94 Am. St. 895, 43 S. E. 164, 59 L. R. A. 556; Conant v. Deep Creek etc. Co., 23 Utah, 627, 90 Am. St. 721, 66 Pac. 188.)
*504The general rule is that the presumption in favor of the jurisdiction of superior courts may be overcome only by recitals in the record showing affirmatively that the court was without jurisdiction. But this presumption is frequently limited to jurisdictional questions which arise by reason of a want of jurisdiction as to the person, which may generally be waived. (Blain v. Dean, 160 Iowa, 708, 142 N. W. 418; Heatherly v. Hadley, 4 Or. 1.) But because jurisdiction over the subject matter of the action can never be waived and cannot be acquired by consent, there are numerous authorities which hold that want of jurisdiction over the subject matter may be shown by evidence dehors the record. (15 C. J. 832, sec. 149; 1 Black on Judgments, 2d ed., sec. 217; Freeman on Judgments, 4th ed., sec. 120; Pennywitt v. Foot, 27 Ohio St. 600, 22 Am. Rep. 340; Dow v. Johnson, 100 U. S. 158, 25 L. ed. 632; Ferguson v. Crawford, 70 N. Y. 253, 26 Am. Rep. 589.)
Counsel for respondent urges, however, that this is not a contest between respondent and the government, that the government is not a party to this action and is not complaining, and admits that if patent never issues, respondent will have no claim to the land in question. Surely counsel does not intend to urge that it is necessary for the government of the United States to intervene in every contest between private parties wherein title to its public domain is being asserted by one of the parties. The trust deed executed by appellant E. II. Sherman and Grace A. Sherman, then his wife, in 1906, to the State Savings Bank of Butte, Montana, to secure'an indebtedness, when the grantors had neither title nor color of title to this land, conveyed nothing whatever to the grantee. Upon the attempted foreclosure of this void mortgage some ten years later, the holder of this mortgage apparently concealed from the court the fact that it was government land by giving merely its legal description; such an imposition practiced upon the court would not confer upon it jurisdiction to decree the sale of the same, nor would such sale pass to the purchaser *505any title whatever. We think that if the fact that these premises were unpatented, government land was first shown by competent evidence in the proceedings had below for the issuance of a writ of assistance, it was then the duty of the court to refuse to exercise further jurisdiction and deny the writ. It has-been frequently held that the jurisdiction of the court in the original cause is open to question on an application for a writ of assistance to enforce the decree rendered therein, and if this is wanting, the merits may be investigated on the application. (5 C. J. 1323, citing among other eases: Howard v. Milwaukee etc. Ry. Co., 101 U. S. 837, 25 L. ed. 1081; Terrell v. Allison, 21 Wall. 289, 22 L. ed. 634; Steinback v. Leese, 27 Cal. 295; Mills v. Smiley, 9 Ida. 317, 76 Pac. 783; Peters v. Young, 122 Mich. 484, 81 N. W. 263; Ball v. Bidge Copper Co., 118 Mich. 7, 76 N. W. 130.)
In 2 E. C. L. 739, sec. 13, under the title of “Writs of Assistance,” it is said that: “The defendant cannot in his answer renew the contest as to title which has already been decided, or set up any new matter upon which he has been concluded by the decree.....This rule, however, does not preclude the defendant from raising the question of jurisdiction of the court.”
As said by Mr. Justice Field in Terrell v. Allison, supra: “A writ of assistance can only issue against parties bound by the decree, which is only saying that the execution cannot exceed the decree which it enforces.”
If this principle of law is applied to the instant case, it may be conceded that the foreclosure proceedings concluded the appellant Edward H. Sherman and Grace A. Sherman, then his wife, and effectually foreclosed all title or color of title which they may have had to these lands in 1906, which, as we have seen, was no interest whatever. The service in the foreclosure suit being constructive, the action was therefore one in rem (Pennoyer v. Neff, 95 U. S. 714, 24 L. ed. 565), and therefore the decree could not affect appellant Sherman and his present wife with relation to the interest which they now claim by virtue of their homestead *506entry and proof of residence, which has earned for them the final receipt which entitles them to a government patent. Therefore the respondent’s contention that this is not a contest between himself and the government is without merit, for the reason that the government having accepted appellant Sherman’s homestead entry and upheld the same in every contest brought regarding it, and then issued its final receipt, he is entitled to assert against the respondent’s claims any defense which the government might interpose.
Appellant, in resisting the issuance of this writ, offered record evidence of the highest and most conclusive char-acter, namely certifications of the records of the government, that he was occupying said premises as a homestead entryman, and thereby asserting title directly from the government. His title has not been, and cannot be, challenged in any court outside of the tribunals provided by the acts of Congress.
While it may be contended that this court may not step aside from the strict line of its appellate jurisdiction to consider the fact of the decisions of the federal courts, nevertheless there are cases which hold that it may be done, particularly where it is necessary to avoid a conflict of jurisdiction. (Sharon v. Sharon, 79 Cal. 633, 22 Pac. 26.) In that ease, Paterson, J., specially concurring, said, in referring to a decision of the same question by the federal court: “These decisions are official acts of the judicial department of the United States. The matters therein decided are matters of notoriety. The verity of such matters is not disputed, and we are as much bound to notice them as we are the laws of nature and the acts of the legislature,” construing the third subdivision of the California code provision which is the same as oúr C. S., sec. 7933, and provides that courts may take judicial notice of judgments and decrees of the federal court that affect the subject matter of the action before the state court. (See, also, County of Dakota v. Glidden, 113 U. S. 222, 28 L. ed. 981; United States v. Schooner Peggy, 1 Cranch, 103, 2 L. ed. *50749; Yeaton v. United States, 5 Cranch, 281, 3 L. ed. 101; Anderson v. Radley, 3 N. J. L. 1034; People v. Sichofsky (Cal. App.), 208 Pac. 340.)
It appears from a case entitled United States against S. M. Nixon, Earl Nixon and John C. Robinson, indicted for conspiracy to oppress citizens in the free exercise and enjoyment of their rights in violation of section 9 of the Penal Code, that in the United States district court for the district of Idaho this respondent and his codefendants were indicted by the federal grand jury for having conspired, confederated, combined and agreed to injure and oppress Edward EL Sherman, by trespassing upon the same lands as are included in this homestead entry, wherein it is recited that the said Sherman had lawfully entered said lands under a homestead entry in accordance with the laws and statutes of the United States. Upon a trial of the said cause, the respondent S. M. Nixon was found guilty on October 14, 1922, after the appeal of this case was filed in this court, and said Nixon was fined $2,500 and sentenced to serve a term in jail. We do not deem it necessary to predicate the reversal of this cause upon that judgment, but refer to it by way of answering respondent’s contention that the government is not complaining about his action, and to point out how futile it would be for this court to affirm a judgment of the lower court which directs the sheriff to remove and expel appellant and his family from this homestead entry, in the face of a decision of the federal court holding respondent to be a criminal trespasser in seeking to recover possession of this homestead entry.
We therefore adhere to our conclusion that the mortgage executed by E. H. Sherman and Grace A. Sherman, then his wife, in 1906, in so far as it pretended or attempted to affect the NE. % of sec. 13, T. 15 N., R. 42 E., B. M., which was a part of the unsurveyed public domain of the United States, to which and in which the grantors had neither title nor color of title, conveyed to the grantee no interest whatever and was a nullity; that the subsequent proceedings had to foreclose said premises, by the receiver of the *508said State Savings Bank, together with the subsequent order of sale and attempted sale thereunder, were void and of no force or effect whatever, the court not having jurisdiction of the subject matter because of it being the property of the United States government; that the application for a writ of assistance under said void decree and sale, sought in the instant case to dispossess appellants E. H. Sherman and Sina E. Sherman, his wife, who occupied said premises under a valid homestead entry, was a proceeding in which they could challenge the validity of said decree of foreclosure and sale of the premises thereunder; that when in the course of such proceedings they established the fact that they occupied said premises under and by virtue of a valid homestead entry that had been allowed by the government of the United States, and when it was shown that said premises so homesteaded by them were a part of the public domain of the United States, by competent evidence — that is, by certified records of the federal government — they were entitled to interpose any defense to the issuance of the writ of assistance in support of their right of possession that the government might set up, they being, subject to its paramount title, subrogated to the rights of the government to challenge the validity of any former proceedings in the state court that in any manner attempted to invalidate or cloud the government’s title; and that respondent’s interference with their possession, after they established the validity of this homestead entry, was a naked trespass without color of authority.
The application for a rehearing is denied.
Budge, C. J., and Dunn, J., concur.