John A. Pence, late of Elkhart County, Indiana, died On April 13, 1918, seized of the real estate involved in this proceeding together with other lands. He left a last will and testament disposing of said lands under Item 2 thereof which reads as follows:
“ ‘All of the residue of my estate, be the same personal property, real estate or mixed, I will, devise and bequeath as follows :
“ ‘ (a) Unto my beloved daughter, Pearl L. Darr, the undivided one-half C%) of said residue in fee simple. If, at my death my said daughter should not survive me, then I will devise and bequeath the said one half of said residue of my estate to her child or children, share and share alike.
“‘(b) The other one-half (%) of the residue of my estate, I will, devise and bequeath over to my son, Samuel O. Pence, — he to have the rents, profits and income thereof during the time that he and his present wife, Fern Pence shall sustain to each other the relationship of husband and wife, and thereafter, if my said son shall survive such relationship, then over to him in fee absolute. If, however, his wife, Fern Pence should survive him sustaining to him the relationship of wife, then on his death I will, devise and bequeath said remaining one half of the said residue of my estate over in fee to my said daughter, Pearl L. Darr, and in the event of her death at said time, over in fee to her child or children, share and share alike.”
Said will was duly admitted to probate in the Elk-hart Circuit Court and on June 9, 1919, Pearl L. Darr, in consideration of a partition of their common interests, executed a deed to Samuel O. Pence conveying her interest in the land in controversy to him subject to the same conditions and provisions as attached to his inheritance under his father’s will. Samuel O. Pence and his wife Fern were divorced on November 5, 1921, *555and on January 19, 1922, he brought an action in the Elkhart Circuit Court to quiet his title to the lands described in said partition deed which are the identical lands involved in this litigation. He made his sister, Pearl L. Darr, her husband Omer, and their two children, Velma and Vera Darr, defendants thereto. The said Velma and Vera were then unmarried but subsequently became Velma Lantz and Vera Myers, who are the appellees herein. The records of the Elkhart Circuit Court disclose that service was had on all defendants and Pearl, Omer and Vera Darr appeared generally and for answer disclaimed any right, title or interest in the real estate involved. Velma, being a minor, appeared by a guardian ad litem who filed answer demanding strict proof of each and every material allegation of the complaint. Said complaint was in general terms and merely alleged that the plaintiff, Samuel O. Pence, is the fee simple owner of the lands described; that the defendants claim title to and an interest in said lands adverse to the plaintiff’s rights, which claims are without right and unfounded. Upon these issues the court, on January 31, 1922, entered a decree declaring Samuel O. Pence to be the fee simple owner of said lands and quieting his title thereto against all claims of the defendants which were adjudged to be without right and unfounded. On March 6, 1922, Samuel O. Pence remarried his former wife Fern and lived with her continuously until his death on August 28, 1952, leaving Fern, his widow, as his sole and only heir at law. Pearl L. Darr preceded her brother Samuel in death on June 6, 1944.
On October 29, 1952, the appellees brought the present suit against Fern Pence alleging that, under the terms of their grandfather’s will, the said Fern could acquire no interest whatever in the lands involved *556through her husband’s death and under such circumstances the fee simple title to said lands passed to them, their mother Pearl Darr being then dead. Wherefore they ask that their titles be quieted and set at rest as against any and all claims of the defendant Fern Pence. Before this case was put at issue Fern Pence died and the appellants were duly substituted as parties defendant. They answered in four paragraphs the third and fourth of which went out on demurrer and although such ruling is assigned as error no point of it is made in the appellants’ brief and we therefore treat the matter as waived. The first paragraph of answer is in conformity to Rule 1-3 and the second pleads the judgment of January 31, 1922, in bar of this suit. No reply was addressed to this paragraph of answer. Upon trial of these issues the court found for the appellees and entered an appropriate decree from which this appeal stems.
Although the appellees filed no pleading asserting fraud in the procurement of the judgment of January 31, 1922, the court permitted them to introduce evidence, over pertinent objections, having no probative value other than to impeach said judgment for fraud in its procurement and for which purpose it was obviously offered. This was error in two particulars. First, where fraud furnishes the ground for any type of relief it must be set up by special plea alleging facts constituting fraud before evidence tending to prove the ultimate fact will be admitted. MacAfee v. Bending (1905), 36 Ind. App. 628, 76 N. E. 412. Second, it constituted a collateral attack on the judgment of January 31, 1922. Where the invalidity of a prior judgment is sought to be shown in a subsequent suit by matter extraneous to the record, such attack is collateral and cannot be made *557by a party to the former record. City of Greensburg v. Zoller (1901), 28 Ind. App. 126, 60 N. E. 1007, 3 Ind. Law Journal 566. There seems to be an exception to this rule where the second suit is for the express purpose of vacating or voiding the prior judgment for fraud in its procurement. Such a suit is regarded as a direct attack even though prosecuted by a party to the former record and' such record shows no infirmities on its face. Cotterell, Administrator v. Koon (1898), 151 Ind. 182, 51 N. E. 235. It is obvious that the present case does not fall within this exception.
The Elkhart Circuit Court is a court of general jurisdiction. It had jurisdiction of the subject matter of the quiet title action of 1922 and the record affirmatively shows it had jurisdiction of the parties. Under such circumstances its judgment, even if tainted with fraud, is merely voidable and remains binding on all parties until set aside by a direct proceeding for that purpose. Owen County Council v. State, ex rel. (1911), 175 Ind. 610, 95 N. E. 253; Welch v. Capital Paper Co. (1921), 76 Ind. App. 416, 132 N. E. 313. Its judgment is not void unless the infirmity that makes it so appears on the face of the record. Clark v. Hillis (1893), 134 Ind. 421, 34 N. E. 13; Larimer v. Krau (1914), 57 Ind. App. 33, 103 N. E. 1102, 105 N. E. 936; White v. Bradfute (1914), 56 Ind. App. 708, 104 N. E. 60, 104 N. E. 123. We find no infirmities on the face of the record of said judgment and it necessarily follows that it was not subject to collateral attack as a void judgment.
The appellees made two defenses below against the judgment of January 31, 1922, as a bar to this action. First, they say that, as the beneficiaries of an executory devise, they acquired absolutely no assertable interest in the land involved in said *558quiet title suit of 1922 until Samuel O. Pence died and then only in the event Fern Pence survived him as his widow and in the further event that their mother Pearl Darr was then dead. That these contingencies occurred long after the judgment upon which the appellants rely and necessarily such judgment is no bar to the assertion of rights subsequently acquired. Second, they say said judgment was procured by fraud and therefore void and of no binding effect on anyone. In the absence of special findings, we cannot say which of these contentions prompted the court’s decision and as evidence in support of the fraud issue was wholly improper and its admission erroneous we must assume that the error was harmful.
Judgment reversed and cause remanded with instructions to sustain the appellants’ motion for a new trial.
Royse, J., dissents with opinion.