SEPARATE CONCURRING OPINION.
FOX, J.The record in this cause presents a number of questions for. our consideration. However, there is one disclosed which is most vital and overshadows all other propositions involved, and its correct solution ends this controversy.
This proposition may be thus stated: On the ©ne hand it is insisted that the sheriff’s return of process is conclusive upon all the parties to the action, and the only remedy afforded the party injured, as a result of such false return, is against the sheriff and his sureties upon his bond, unless the plaintiff had knowledge of such false return, or in some way. participated in the fraud perpetrated by the officer; in that event, equity will furnish a remedy. On the other hand, it is insisted with equal earnestness that equity will assume jurisdiction and afford a remedy, in all cases where it is made to appear that the party to the action had a meritorious defense, and that the judgment was rendered upon a false ieturn of service of process by the officer; and it is urged that this is the correct rule, even though the plaintiff and his privies were absolutely ignorant *626of the falsity of the return, and in no way participated in the procuring of such return, or the fraud resulting from the making of it.
An able and exhaustive analysis of all the authorities bearing upon this question has been made by two of the learned and esteemed judges of this court, and the views expressed and conclusions reached are so sharply and pointedly in conflict, I trust it will not be deemed inappropriate to briefly give some expression to my views in concurring in the affirmance of the judgment in this cause. While the correctness or incorrectness of the analysis of the decisions of the courts in other jurisdictions may materially aid us in reaching a correct conclusion, it by no means solves the proposition confronting us; nor would my concurrence with either of the learned judges in the analysis of the cases be a solution of the legal problem. We are still confronted with a wide divergence ■ in the views of learned judges and courts of high standing; hence, we must, at last, find a solution of this important question after careful and full consideration by adhering to the safer and wiser rule, and one that would best ' comport with equity and good conscience, and from which the least injustice would result.
In this State, in law cases, from a very early period in the history of this court, it was ruled that the return of service of process by the sheriff was conclusive upon the parties to the action, and it is somewhat significant -that in nearly all the cases, from Hallowell v. Page, 24 Mo. 590, to Feurt v. Caster, 174 Mo. 297, it was expressly pointed out that the remedy of the party injured by reason of the false return, was against the sheriff upon his bond. With the exception of McClanahan v. West, 100 Mo. 309, the case at bar is the only one that has ever reached this court involving the proposition now before us; it might be said that the uniform expression of this court, indicating the remedy against the sheriff upon his bqnd, was construed by the *627profession as the only one, hence the absence from this conrt of snits in equity involving the proposition might be to some extent accounted for. However, we will say that the absence from this court during its entire history of equity suits involving the question now being discussed, would not justify the conclusion that the profession of this State recognized the correctness of the doctrine that the sheriff’s return in the original case was conclusive upon the parties in an action in equity to set aside a judgment for the reason that the return was false. This is merely referred to as a part of the history of litigation of this character.
In McClanahan v. West, supra, while it was not expressly alleged in the petition that the return of process upon one of the defendants in the original case was false, it was alleged that the decree in.the original case was fraudulent and void, and there is no escaping the conclusion that plaintiffs, upon the allegations in the petition, offered parol evidence to show that Nancy, one of the defendants in the original case, was not served with process, and it was ruled that this testimony was inadmissible. There was no objection urged to this testimony that there was no allegation in the petition upon which to predicate it, or that the allegation that “the decree was fraudulent and void” was too general to admit of the testimony; but doubtless it was offered under such general allegation, and the announcement of the conclusions by the learned judge indicates very clearly the ground upon which he based his reasons for the ruling. Here is what was said in that case: “But it is unnecessary to rule the point now, for the obvious reason that there is no tendency in the testimony adduced by plaintiffs to show fraud in the proceeding or concoction of the judgment, nor of any connection of the defendants therewith. This being the case, parol testimony was wholly out of place to show that plaintiff Nancy had not been served with pro*628cess in the partition suit. And this is true notwithstanding that'the judgment in that suit is silent as to the acquisition of jurisdiction by service" of process upon her. A domestic judgment, rendered by a court of general jurisdiction, cannot be impeached by the parties to it merely because the record is silent as to the acquisition of jurisdiction. Such judgment is equally as conclusive on the parties thereto, whether it recites, or whether it fails to recite, that jurisdiction has been acquired.” [L. c. 320.]
It is apparent from that case that the parties were proceeding on the theory that they could show that Nancy was not served with process, for the reason that the record was silent upon the subject of acquiring jurisdiction of the person, by due service of process. But that by no means tends to lessen the force of the rule announced; it but emphasizes it, for it was there held that the judgment being one rendered by a court of general jurisdiction, even in the absence of any evidence of due service of process, other than that imported by the judgment itself, was equally conclusive on the parties thereto, whether it recites or fails to recite that jurisdiction has been acquired.
It thus follows that this court has spoken upon the subject now under consideration. It is apparent that the doctrine announced in that case cannot stand, if we now adopt the rule that the sheriff’s return of service of process in the original case is not conclusive in an action in equity, to set aside the judgment upon the ground of the falsity of such return.
It must be conceded that to limit the remedy of a party to his or her action against the sheriff upon his bond, may, in some instances, entail hardship. It may be said that it is grossly inequitable, where the sheriff and his bondsmen are insolvent and unable to respond in damages for injuries resulting from a false return, to deny the remedy in equity; but would it not be more so to adopt a rule which permitted a recovery for the *629perpetration of a fraud in the nature of a false return, from a party who not only did not in any manner participate in the fraud, hut who. was absolutely ignorant of the falsity of the return? Officers authorized to execute process are required to execute bonds for the faithful performance of their duties. Where they make false returns the parties injured have a remedy. If the sheriff or his bondsmen are insolvent and unable to respond in damages, the hardship is not the result of the failure of the law to provide a remedy, or the application of the doctrine that the return of the officer is conclusive.
Where the officer makes a false return and the party plaintiff has knowledge of it, or in any way participates in the perpetration of the fraud, courts of equity will assume jurisdiction and afford relief, for the reason that that would be deemed fraud in the concoction of the judgment.- On the other hand, if an officer makes a false return and the plaintiff does not participate in any way in such fraud, and is ignorant of the falsity of the return, then, in my opinion the safer rule Is, that the return of the officer should be treated as conclusive, not only in law eases, bnt as well in proceedings in equity to set aside a judgment on the ground of such false' return. The parties seeking such relief in courts of equity should not be permitted to contradict the return of the officer in the original case; but should be required to seek their remedy against the sheriff and those who stand for his official conduct, his sureties.
That the authorities are'conflicting upon this proposition, there can be no dispute; that was doubtless ascertained by Wagner, J., in Stewart v. Stringer, 41 Mo. l. c. 404, where he says: “The courts of some of the States have held that a sheriff’s return is merely prima facie evidence of the facts therein stated; but the law is firmly' settled in this State, that a defendant cannot controvert the truth of the sheriff’s return. If *630the return of a sheriff to a process is regular on its face, it is conclusive upon, the parties to the suit, and the remedy for the party injured is an action against the sheriff for a false return. ’ ’
The unvarying rule of the common law. is that the return of the officer is conclusive and has been followed by many courts of this country of high standing. I shall not undertake to discuss or point out upon which side of this proposition the weight of' authority rests. I must be content with giving expression to my conclusions, which are predicated upon that line of authorities which, in my humble judgment, furnishes the most satisfactory reason for the adoption of the rule.
To adopt the rule that courts of equity, upon the showing of a meritorious defense and a false return of service of process by the officer, would set aside judgments and sales of property made under them, •notwithstanding all the parties to the judgment are innocent of participating in any fraud in procuring it, would materially lessen the value and force of such judgments, and the purchaser of property under such judgments, regular though they may appear in every detail, would be left in doubt as to the nature of his title, which uncertainty would continue to surround his title until relieved by the expiration of the statutory period of limitation in which the judgment debtor could institute his suit in equity to annul the judgment and set aside the sale made under it. Many land titles are based upon execution and partition sales in pursuance of judgments and decrees by default, and the injurious effects of the adoption of the rule indicated upon sales of that character are apparent. It would materially lessen the value of property, interfering with its ready sale, and introduce an entirely new feature for the consideration of title examiners, who are so often applied to for guaranty of titles.
While, I repeat, isolated instances of hardship and injustice may result from the adherence to the doctrine *631that the sheriff’s return, regular upon its face, is conclusive upon the parties to the action, both in law cases and in equity, where it is sought to annul proceedings upon the sole ground of a meritorious defense and a false return; I am convinced that far more injurious results would follow the thrust at the integrity of judgments of courts of law by the adoption of the opposite rule.
Upon the other propositions involved in this controversy, it will suffice to say that from the disclosures of the. record in this cause, the plaintiff had her day in court in the suit against the sheriff for making a false return. She pursued the remedy provided by law, and that must be treated as a full satisfaction and compensation for the damages sustained by reason of the false return. The fact that she was only awarded nominal damages cannot lessen the force or correctness of the legal proposition, and any injustice done her in that case, if any was done, should not be attributed to the failure of the law to furnish a remedy for the injuries resulting from such false return.
The judgment in this case, upon the facts disclosed by the record before us,.is in harmony with equity and good conscience, and without expressing an opinion upon the correctness or incorrectness of the analysis of the authorities-bearing upon this subject, made, by each of the learned judges, I concur in the conclusions of Marshall, J., upon all the propositions involved in this cause, and the judgment of the trial court should be affirmed.
Gantt, J., concurs in the views herein expressed.