The counsel for the plaintiff concedes to the fullest extent the position that a court of equity will not interfere to make partition while the legal title is in dispute, but will leave the parties to their legal remedies first to settle the question of title. Such was the decision of this court in Deery v. McClintock, 31 Wis., 195. But the counsel insists that it does not sufficiently appear from the record that an undetermined legal controversy exists in respect to the title; but on the contrary he claims that the record evidence which was introduced on the .trial showed that the question of title had been conclusively.settled between the parties so as to estop them from further controverting it. In the first place he relies upon the record in the partition suit between .the grantor of the plaintiff and this defendant, wherein all questions of title and of possession were, as he says, put in issue and conclusively determined in that action. But the defendant, in his answer and in his proof, attacks the validity of the record in the partition suit. He claims that he had no notice nor any knowledge whatever of that proceeding; that the court never acquired *147jurisdiction over liim by service of process ; and that the judgment therein was a gross fraud upon his rights. These aré surely most serious objections to that record ; and, as it seems to us, there is no ground for saying that the defendant is estopped by anything therein appearing from litigating those questions. If the integrity and rectitude of that record are impeached, it is evident it can conclude no one. The questions, therefore, in respect to its validity should be first settled in some appropriate action, before a court of equity is called upon to make partition. But it is further insisted that the court should have tried in this action the question whether the partition record was voidable for fraud, or for any other reason, and not compel the parties to bring another suit to settle that question. Whether the defendant was served with process or had any notice of the pendency of the partition suit, in view of the direct conflict in the statements of Mr. Sleeper and the defendant upon that point, would seem to be matters most appropriate for the consideration of a jury; and the advantages of a trial at law to determine such controverted questions of fact are too obvious to need any remark. All these questions, together with the alleged fraud in the-prosecution of that action, should be determined in some legal proceeding brought for that purpose.
But it is objected that these questions in regard to the validity of the partition record are no longer open for examination, .because they were adjudicated in the action for a specific performance, the record of which was offered in evidence. The action for a specific performance was between the same parties as the partition suit, and was commenced the same day, or the day after the latter action is claimed to have been instituted.It was brought by the present defendant against the plaintiff’s grantor to enforce the specific performance of a contract for the conveyance of eight-elevenths df this same land of which partition is sought in this case. The result of that action was, that the court adjudged that the plaintiff therein was entitled *148tó a specific performance of the contract. During the pen-dency of the suit for specific performance, the defendant Wm. W. Grillett, by a supplemental answer, set up the judgment in the partition suit at the December term of the circuit court for 1865, a sale of the premises in that action, and a deed of conveyance to him executed by the sheriff at such sale, as a bar to the suit for specific performance. What evidence was given in support of the matters set up in the supplemental answer — if any such was in fact given, — does not appear. The court however made, among other things, the following finding: “ That proceedings in partition were commenced and conducted by the said defendant against said plaintiff as alleged in his supplemental answer, and that it appears from the record thereof that the court in which they were had, had full jurisdiction of that case, and that the jurisdiction of said court and the record of its proceedings have not been impeached either by showing want of jurisdiction or for fraud. The summons in that action was in fact served on the said plaintiff. The plaintiff did not appear in that action, and his equitable rights under said contract were not in anywise submitted to that court, and he is not barred from maintaining this action by anything appearing in that record.”
Now the counsel for the plaintiff relies upon this part of the finding in the action for a specific performance, in support of the position that the very objections now taken to the partition record were then made and overruled by the court. The court in that case, it is said, explicitly decided that the summons in the partition action was served upon the defendant in that action, and that the record in such suit had not been impeached, either by showing want of jurisdiction or for fraud. These issues, then, it is claimed, are no longer open to litigation, and the parties and their privies are estopped from further calling them in question.
To this argument the counsel on the other side reply, that the effect of every judgment as an‘estoppel is restricted to such *149. matters as were in issue and might have been litigated in the action. The main and vital question in issue in the action for a specific performance was, whether, upon the facts alleged and denied, the plaintiff was entitled to have the contract specifically performed. Any other matter than this was a mere immaterial and collateral issue. Whether the court acquired jurisdiction in the partition suit, or whether its proceedings in that suit were impeachable for fraud or want of jurisdiction, was not an issue in the action for a specific performance of the contract, nor in any way involved in the question whether the plaintiff was entitled to the relief he sought in that suit. In the determination of the cause before it, the court had no occasion to pass upon the validity of the partition proceeding; the finding of facts above given was quite unnecessary and upon an incidental issue, and is therefore not binding upon the parties. It seems to us that this answer is entirely concl usive and decisive upon the point made. For we understand the rule of law upon, this- subject to be as stated by Earl, C., in Woodgate v. Fleet, 44 N. Y., 1-13: “ A judgment is conclusive upon the parties thereto only in respect to the grounds covered by it, and the law and facts necessary to uphold it; and, although a decree, in express terms, purports to_ affirm a particular fact or rule of law, yet if such fact or rule of law was immaterial to the issue, and the controversy • did not turn upon it, the decree will not conclude the parties in reference thereto. (The People v. Johnson, 38 N. Y., 63).” See also Coit v. Tracy, 8 Conn., 269.
The circuit court, in finding that the plaintiff herein was not entitled to the relief claimed, must have deemed that there had been no adjudication of the validity of the partition record, and that while it had, in the action for a specific performance, affirmed the fact that the court had jurisdiction in that action and that its proceedings had not been impeached for fraud, yet this did not conclude the parties in reference to these matters. It is very apparent that the court considered these facts *150quite immaterial in the action for a specific performance ; for it granted the plaintiff the relief sought, while affirming the existence of these facts. The controversy did not turn upon them, and therefore the plaintiff in that action might not have considered it necessary to controvert them, even if able to disprove them. These findings, therefore, in the specific performance suit, being upon a collateral and immaterial matter, and the judgment in the action not resting upon them in any way, it is obvious that they cannot conclude the parties upon those questions. And this is rendered still more apparent by the clause in the finding and judgment in that action which reserves the right to the parties to settle their claims to the remaining three-elevenths of the land in any subsequent suit.
We therefore think the judgment of the circuit court in this case was correct, and must be affirmed.
By the Court. — Judgment affirmed.