Dissenting Opinion.
Howard, C. J.(Dissenting.) — While agreeing with the greater part of what is said in the principal opinion, I yet find myself unable to join in the conclusion reached by the majority of the court as to the force and effect of the. decree rendered in the partition suit. That decree, as I think, was binding upon the appellant as well as upon all other parties thereto, and was a complete estoppel against any right on her part to bring this action to quiet her title to land there set off to appellee.
The appellant and the appellee, Daniel E. Cathcart, are children of William Cathcart, deceased. This action was brought by her to quiet her title to a part of the lands owned by her said father at the time of his death. There are seven children of William Cathcart, and the share of Daniel E. Cathcart, being the undivided one-seventh of the real estate of his said father, or eleven acres, as set off in partition, is the land here in controversy.- This land appellant claims was conveyed to her by her said brother by an unrecorded deed, previous to the partition suit; but he claims that the land was set off to him in said partition.
The court finds specially that in 1893, Daniel E. Cathcart conveyed to appellant his said undivided one-seventh interest, but that the deed therefor, though delivered, was never recorded; that, in September, 1896, in a partition suit, to which the appellant and *483the appellee Daniel E. Cathcart, together with all the other owners of the said lands of William Cathcart, deceased, were made parties, it was alleged in the complaint that this appellant owned three-sevenths interest in said land, instead of fonr-sevenths, and that the appellee Daniel E. Cathcart owned one-seventh; that this'appellant and the said appellee were duly summoned in said suit for partition, but each made default; that the court found the allegations of the complaint to be true, and ordered said lands partitioned and set off in severalty, as stated and prayed for in said complaint; and that the land in dispute here was, in said action, set off to the appellee Daniel E. Cathcart, and the partition so made, confirmed and ordered made effectual by the court, and no appeal has been taken from said judgment. As conclusions of law, the court found that the appellant never owned in severalty the particular land'here sued for, and, the partition record being against her, she is now es-topped from suing in ejectment for the eleven acre tract.
Appellant seems to occupy an inconsistent position. She claims the eleven acres, as set off by metes and bounds in the partition suit. But in the partition proceedings the eleven acres were set off to her brother Daniel, and not to her. Her remedy, if any wrong were done her, would seem to have been to appear to the partition suit, and assert her claim under the deed from Daniel. Having failed to appear there, and having failed to appeal from the judgment there entered, or to bring any direct attack against such judgment, it must be, as the court concluded, that she is estopped from making claim to the eleven acres there set off to her brother.
It is- said that the title to the land in controversy was not put in issue by the partition suit. The record, *484as- it seems to me, shows that the title then held by each of the parties was in issue. The complaint, alleged that she was the owner of three-sevenths, in value, of her father’s land, instead of four-sevenths, and that her brother was the owner of the one-seventh now claimed by her. She did not appear to that suit, but, by her default, admitted that the allegations of the complaint were true, as, indeed, the court also expressly found. Whatever ownership she then had in the land, was in issue, and before the court for determination; and it was adjudged that she was the owner of three-sevenths only, in value, and the same was accordingly set off to her. If the judgment so entered were not conclusive, the partition suit would be but an idle proceeding.
It is true that title, or, rather, the particular nature and duration of a title, are not in every case in issue ' in a partition suit. Whether the title is a fee simple, a life estate, a fee for life, a fee-encumbered with a lien, or is one held in trust, may not always be put in issue by the pleadings, and so may not be determined in the action. “The decree in partition,” as said in Elston v. Piggott, 94 Ind. 14, “operates only upon the title held at the time the suit was instituted.” After-acquired titles are not affected. Freeman Co-Ten. (2d ed.) section 532; Kitts v. Willson, 140 Ind. 604. But provided only, at the time of the partition, one has title and the right of possession to an undivided interest in land, the same may be set off to him in severalty. Shaw v. Beers, 84 Ind. 528.
In the case at bar, however, the nature of the title claimed is not in doubt. The eleven acres in controversy were set apart to Daniel E. Cathcart as the equivalent in value of his undivided one-seventh inter-. est as heir of his father. The appellant’s claim is that three years previous to the partition a deed had been *485made to her by him for said one-seventh interest. There was,therefore,before the court, the simple question of the then ownership of the land, and the right to the possession of the same; and the judgment on the issue so made must be conclusive. Appellant does not pretend that her title to the land, or her right to its possession, is different now from what it was then. But appellee then had both title and the right to possession, or else the judgment of the court must go for naught. Exactly the same question then decided camnot be here again brought up for decision.
In Isbell v. Stewart, 125 Ind. 112, partition of lands inherited from a first husband was made between the widow and children, the second husband being also joined as a party. The court ordered the land sold, and the proceeds distributed according to the interests of the parties in the land, except that the widow’s portion was put in charge of a trustee, to- pay the income to her and her husband during her. life, after which her share was to be distributed among the children. On her death the husband sought an order to have one-third of his wife’s share paid to Mm. It was held that the judgment in partition was conclusive as to the interests of the parties, and could not be thus collaterally attacked or modified. “We are not willing,” said the court, “to extend the doctrine of such cases as Avery v. Akins, 74 Ind. 283; Utterback v. Terhune, 75 Ind. 363, and Miller v. Noble, 86 Ind. 527, to such a case as this, for we think those cases and the cases following them restrict the effect of a judgment in a partition suit qMte as much as can possibly be done under the provisions of our statute.” ' And the court adds, quoting from Freeman on Co-Ten., section 530: “The rule that a judgment is conclusive upon all the issues determined by it, is not the less applicable to judgments in partition than to judgments in any other *486form or kind of action.” See also Brown v. Grepe, 135 Ind. 4, and Irvin v. Buckles, 148 Ind. 389.
It is said that the appellant and appellee were both defendants in the partition suit, and that, while the issues as between the plaintiff and the defendants in that suit were finally determined, it does not follow that the rights of the defendants as to one another were also determined. And we are referred to cases where an action is brought on contract against two or more defendants, and where such defendants are not precluded afterwards, by independent actions, from determining which of such defendants were principals and which only sureties. As to the cases of this kind, the statute has expressly authorized action for trial of suretyship. Section 1226, Burns’ R. S. 1894 (1212, R. S. 1881).
But it may be admitted that if,' in any case, the pleadings do not involve a determination of the rights and interests of the defendants as to one another, there is nothing to prevent the bringing of another action to determine such rights and interests. It is simply a question of former adjudication; and if in the original action the issues afterwards sought to be determined were not, and could not be, decided, then the bringing of the subsequent action cannot be held to be a collateral attack upon the first judgment. Thus, in Jones v. Vert, 121 Ind. 140, there had been an action for foreclosure of a mortgage of real estate, and one of the defendants had sought, by answer, to set up a vendor’s lien as against the plaintiff in foreclosure. It was held that the judgment there entered was no bar to an action afterwards brought by the holder of the vendor’s lien to foreclose the same against her codefendants. It is plain that this ruling was correct. While the right of the holder of the vendor’s lien, as against the plaintiff in foreclosure, was in *487issue in the first action, and was there determined, there was in that action no issue as to the rights of the defendants among themselves in relation to such vendor’s lien. Moreover, it is not necessary that the complaint to foreclose a mortgage should state the nature of the liens claimed by the several defendants thereto. It is sufficient' to state simply that they claim some title or interest, in the property subordinate to the rights of the plaintiff.
In partition, however, it is .different; the statute does require that the complaint shall set forth “a description of the premises, and the rights and titles therein of the parties interested.” The then existing rights, titles, and interests of all the parties in and to the land to be partitioned are therefore put in issue by the very pleading prescribed by the statute. Section 1201, Burns’ R. S. 1894 (1187, R. S. 1881). So, in McCarthy v. McCarthy, 66 Ind. 128, a complaint in partition which “gave a description of the land, and set forth the rights and titles therein of the parties respectively,” was held to be a compliance with the requirements of the statute. And in Shaw v. Parker, 6 Blackf. 345, the court said: “The order for a partition in such case should ascertain and declare the respective proportions of the common owners of the premises.” In support of this last decision was cited the strong case of Lease v. Carr, 5 Blackf. 353, in which Dewey, J., with unanswerable argument, set forth the nature and scope of a decree in partition, making the partition “firm and effectual amongst the parties thereto forever.” In Wright v. Nipple, 92 Ind. 310, it was said, in like manner, that an interlocutory judgment in partition “settles and determines the rights of the parties in the common property, and upon these questions it is final and conclusive.” See further Van Fleet Col. Attack, sections 153, 155, 628, 631, 704, and 726.
*488In addition, the question here is not whether the court might have made a different decree, not whether it might have set off to the defendants in the partition suit all their, land in one parcel, subject to a future partition suit, to be brought by them. No doubt this could have been done. But that is not the question before us. The question to be decided in this action is whether the court, having jurisdiction of the persons and the subject-matter in the partition suit, was authorized to make the decree which was actually made, and whether the appellant as a party to that decree, having failed to appeal therefrom, or to take any action to set it aside, may. now make this collateral attack upon it.
In Missouri, as in this State, the statute requires that the complaint for partition shall set forth the rights and titles of all persons interested in the premises sought to be divided. Under this statute, it was said, in Forder v. Davis, 38 Mo. 107, as cited in Freeman on Co-Ten. (2d ed.), section 531: “The judgment of partition establishes the title to the land which is the subject of the partition, and, in an action of ejectment upon adverse possession, or an adverse title existing at the date of the partition, it is final and conclusive at law upon all the parties to the record, and upon all persons holding under them afterwards. ***** The plaintiff might have asserted his adverse title in the partition suit, or pleaded it in bar, and, if decided against him, he had his remedy by appeal or writ of error. The judgment must be taken as conclusive here, that no such defense was made, or that, if made, it was decided against him. Not having asserted his claims there, they were wholly barred by law.”
And Mr. Freeman very pertinently adds: “It is, perhaps, unfortunate that judges so often remark that *489partition confers no new title, but only divides that which the parties previously possessed, because the remark justifies the inference that a judgment in partition has little or no effect upon the title. The truth is that a judgment in partition is as conclusive as any other. It does not create or manufacture a title, nor devest the title of anyone not actually or constructively a party to the suit; but it does operate by way of estoppel; it prevents any of the parties from re-litigating any of the issues presented for decision, and the decision of which necessarily entered into the judgment; and it devests all titles held by any of the parties at the institution of the suit.”
Appellant’s title, at and long before the date of the partition suit, was the same as that now claimed by her. There was then an adjudication against her as to that title, and I think that she should now be estopped from making this collateral attack upon the judgment to which she was then a party.
McCabe, J., concurs in the dissenting opinion.