This case is within the principle of Kinnier v. Kennier (45 N. Y., 535). It was there held that, although a decree of divorce had been obtained by collusion and fraud, a person subsequently marrying one of the divorced parties could not avail himself of such fraud to obtain a judgment of nullity. “ This decree,” said Church, Ch. J., “was binding upon the parties to it within this rule (laid down by Story in his Equity Jurisprudence, section 887). No fraud is alleged by either against the other, and neither could assert that it was hot a valid judgment, as they 'were both equally guilty of the fraud. .(Bish. on Marriage, § 706.). It effectually divorced the parties to it, and their marriage was no longer in force in any legal sense. The plaintiff in this action has not been defrauded, nor is he injured by it. The plaintiff was entitled to marry a marriageable person, and though she may not have been in other respects all he *492anticipated, or all that was desirable, yet she was competent to marry, because her former marriage was not then in force, and, being competent, it is of no legal consequence to the flai/ni/iff how she Hecame so. Conceding fraud, as alleged, he cannot avail himself of it.”
The present defendants were divorced by a judgment of the Courf of Common Pleas. The court had complete jurisdiction. Of that, there is no question. The proceedings and decree are-all perfectly regular and valid upon their face. But the present plaintiff goes behind all this. "What he asserts, upon evidence dehors the record, is, that the judgment was obtained by collusion, fraud and false testimony. lie was not, however, defrauded thereby. Nor, in fact, was any one in pai-ticular. The fraud was not upon individuals, but upon the law and the court. No one has a strict right to the vacation of such a judgment. Certainly not the parties thereto, who are inpcuri deUcto ; nor strangers to the record, who are not affected thereby. The court, upon which the imposition has been practiced, may deal- with its own judgment as it sees ft. It may institute an independent inquiry, and, upon being satisfied as to the fraud, may vacate the judgment of its own motion. So, upon its attention being called to the fraud by any proper person or in any proper manner. The court will, however, since the matter is entirely under its control, carefully consider the effect of its action, and will not hesitate to retain the decree if the rights of innocent parties would be injuriously affected by the vacat/wr. Whatever relief may ultimately be afforded to the plaintiff, resulting from any possible action of the Court of Common Pleas with respect to its judgment, as to which we need not speculate, it is entirely clear that- the present action cannot now be sustained.
The order denying the plaintiff’s motion for judgment must, therefore, be affirmed.
Davis, P. J., and Daniels, J., concurred.Order affirmed.