I concur in the foregoing opinion, but as the question is one of very grave importance, I wish to add, *468that while it is not to be denied there are numerous decisions of most respectable courts sustaining another rule, in my judgment the conflicting decisions are based upon insufficient and unsatisfactory reasons! The prior decisions of this court have settled the law in this state to be, that an officer’s return of service on original process may be impeached in a direct proceeding before and after judgment, where the return states facts (as in this case) which do not come within the personal knowledge of the officer. Bond v. Wilson, 8 Kas. 229; Chambers v. Bridge Manufactory, 16 Kas. 270; Hanson v. Wolcott, (ante, p. 207.) The new question now involved is, whether this principle shall be applied in actions in the nature of ejectment, where the plaintiff seeks to sustain his title by a sheriff’s deed based upon a judgment rendered by a justice of the peace on default, when there was in fact (notwithstanding the return of the officer) no service of summons, nor any waiver thereof. The ablest of the opinions, holding adverse views, concede they violate all principles of natural justice, but attempt to fortify their forced conclusions on the plea of public policy. Now, in this state, it is unnecessary for a plaintiff, in an action to recover the possession of real property, to allege how his estate or ownership is derived. All he need do is to state and prove he has a legal or equitable estate in the property sued for. Likewise, the defendant can plead or set forth his defense in as general terms. He need only deny generally the plaintiff’s title; and without allegations or notice of fraud in the execution of the contract, deed, or conveyance, on which the plaintiff relies, the defendant may offer evidence under his answer, and surprise and successfully destroy the title. Even tax deeds, valid upon their face, may be attacked and impeached by evidence aliunde, without the pleadings pointing out any defect. In a word, under a general denial, we have already held, that in actions of this nature the defendant may show, by any legal evidence which he may have, that he is the owner of the land in controversy. Hall’s Heirs v. Dodge, 18 Kas. 277. If our code has authorized, upon pleadings of such general terms, evidence of so broad a quality to be presented, I see no rea*469son to deny the right to impeach in this suit a judgment of the character that Bartlett obtained against Jane Hicks Brown before a justice of the peace in 1860. The fact that it is prima facie and presumptive evidence of its truth, is a sufficient advantage to the plaintiff resting upon it; and the party affected thereby, having no notice by the pleadings that it would be used to sustain any issue, would be, it seems to me, more greatly prejudiced by a denial of the right to controvert and disprove it, than the plaintiff would be if called upon to sustain the jurisdiction of the justice when that jurisdiction is attacked with the proof that Jane Hicks Brown was not within the state at the time of the pretended service. I see no valid reason for placing a defendant under this disadvantage against a judgment thus obtained. The fairness and the justice seem in favor of the right to impeach and annul the judgment.
Under the federal statutes, the plaintiff, being a citizen of another state, and the defendants citizens of Kansas, either party could have removed the suit before trial to the United States circuit court for this district. If the defendants had •taken advantage of this statute authorizing such removals, under the decisions of the federal courts it seems to be settled that the pretended judgment could have been successfully impeached by the defendants in that court. Thompson v. Whitman, 18 Wall. 457; Knowles v. Gaslight and Coke Co., 19 Wall. 58; Earle v. McVeigh, 1 Otto (U. S.) 503; Shelton v. Tiffin, 6 How. 163; Webster v. Reid, 11 How. 437; Elliott v. Piersoll, 1 Pet. 328. See also, Pennoyer v. Neff, Sup. Ct. of U. S., Feb. 1878, 6 Cent. L. J. 252.
If we now hold that the defendants cannot obtain the same rights under our practice in our own courts, as in the federal courts held in the state, or if we remit the defendants to other modes of redress than awarded them in the district court, we deprive our own courts of some authority and power, and restrict their procedure upon grounds of policy unknown to federal practice. We would thus tend to swell the litigation in the federal courts, whose extensive and encroaching juris*470diction is already a subject of complaint with some of the profession, and is viewed by many as periling, not only the importance, but the existence of our state courts. In my view, not only do the principles of natural justice, but likewise the true principles of policy, considering the provisions of our civil code and the prior decisions of this court, sustain the opinion of my learned brother.