In this case, the plaintiff claims a right in equity to redeem certain real estate which has been taken and set off on execution by the defendant. The right claimed was taken *138on a second execution in favor of the plaintiff, and sold to him in pursuance of the Rev. Sts. c. 73, § 48.
The case depends upon the validity of this sale. The objection to its validity is, that the judgment, on which the plaintiff’s execution issued, was void ; as when his original writ was served, the defendant in that suit was not residing within the Commonwealth, and had no notice of the action ; and that the plaintiff nevertheless took judgment against him at the first term, in contravention of the Rev. Sts. c. 92, § 3.
That a void judgment may be impeached by plea and proof, is very clear ; but the plaintiff’s counsel contends that the judgment in his favor is not void, but is voidable only, and is valid until reversed by writ of error. It is generally true, no doubt, that an erroneous judgment is to be avoided only by a writ of error ; but this rule of law does not apply to cases where a party has a right to impeach a judgment, and yet has no right to reverse it by a writ of error. If, for instance, a judgment be obtained by fraud and covin between the parties, with the intent to defeat the title of a third party, the latter may plead the matter in avoidance of the judgment. Fermor's case, 3 Co. 77. Veale v. Gatesdon, W. Jon. 91. So if a debtor suffers judgment to be recovered against him by collusion, for the purpose of having, his property taken in execution, with the intention to delay or defraud his creditors, a creditor may avoid the judgment and execution by proof of the collusion between the parties to the judgment, although the judgment is voidable only, it being valid and binding between the parties. Pierce v. Jackson, 6 Mass. 244. And this was unquestionably the law, as well before as after the statute of 13 Eliz. c. 5. Cadogan v. Kennett, Cowp. 434.
Although the judgment in favor of the plaintiff, in the present case, was not recovered by collusion with his debtor, or with any fraudulent intention, yet we think the defendant has a right to avoid it in the same manner; because he .is neither party nor privy to the plaintiff’s judgment, and is not entitled by the rules of law to reverse it by a writ of error. This was so decided in *139Warter v. Perry, Cro. Eliz. 199, and in Randal’s case, 2 Mod 308 ; and the same principle is laid down in Com. Dig. Er ror, D ; and in 5 Dane Ab. 225. This rule of law does no appear, in any case, to have been controverted, and it seems reasonable and just, that where a judgment is recovered contrary to law, and prejudicial to a third party, he should have a right to avoid it.
Bill dismissed