21 Barb. 9 | N.Y. Sup. Ct. | 1855
The plaintiffs instituted this action to set aside a report of commissioners in partition and .a judgment confirming it, in a suit in the late court of common pleas of the county of Suffolk, in which the late Stephen Griffing was plaintiff, or petitioner, and two of the plaintiffs in this action and the late Nathan Corwithe, whose share in the land in controversy belongs to the other three plaintiffs, with others were defendants, on the grounds that the lands allotted to the Corwithes, and some other defendants, were not included in the territory described and intended in and by the petition for partition, and were not held in common, or at all, by the parties to that suit, but were held and owned by an adverse claimant; and that the illegal allotment made by the commissioners was procured by Stephen Griffing, who was present and pointed out the boundaries as assumed by the commissioners, although it was known to him that such boundaries included, on the east, land which was not designated in the proceedings in the partition suit; or, at any rate, that such last mentioned land was held by an adverse claimant; and that he procured an assignment
The defendant Edgar Griffing alone answered, He alleged in his answer, that the land included in the partition suit was truly located by the commissioners, and he insisted that the plaintiffs were barred from obtaining any relief, by the statute of limitations. The answer also contained a general denial (in effect) of any mistake or fraud, and alleged that since the decision made in the partition suit, the parties thereto, and those claiming under them, had held the lands in severalty and occupied them pursuant to the allotment. The action was tried before me, without a jury, at the Suffolk circuit, in May, 1855, when the following facts were proved, and are accordingly found by me.
In the year 1838 the late Stephen Griffing presented a petition to the court of common pleas of Suffolk county, praying for a partition between himself and the present defendants, Edgar Griffing, Stephen E. Griffing and Harvey Halsey, the late Shephard Halsey, the present plaintiff, Gordon Corwithe and William Corwithe and the late Nathan Corwithe, of “ that certain lot, tract or piece of land situate in the town of Souths ampton, in the county of Suffolk, being lot number thirty-one in the last division of Quogue Purchase, extending from the south country road to the middle of the plains, (so called,) the said tract being bounded southerly by the south country road, westerly by the land of the said Stephen Griffing, northerly by the middle of the plains, and easterly by the land then or late of Stephen Wright.” The parties to the suit then held the said land described in the petition as tenants in common. The actual easterly boundary of the lot as then held and owned by the said parties, was at and upon a ditch made by one Stephen Wright, who at the time owned and possessed the adjoining land on the east, commencing on the south country road and extending some distance to the north and a line extending from said ditch, and upon the same course, to the northeast corner of such lot. A judgment was subsequently entered in that
The question of law upon this statement of facts is, whether the allotment made by the commissioners, and the judgment upon it, should be annulled. The time has long since elapsed when the judgment could have been set aside for irregularity, or reversed upon the merits, by any proceeding in the original suit. If the plaintiffs are entitled to any redress, it must be through the intervention of this court as an equitable tribunal. Such intervention is invoked on two grounds; first, that the judgment of the Suffolk common pleas was obtained by fraud; and second, that such court, in rendering the judgment, exceeded its jurisdiction.
There is no doubt but that a judgment, either of an equitable or legal tribunal, obtained by fraud, may be, in effect, vacated by a court of equity. (Munn v. Worrall, 16 Barb. 221, and the authorities there cited.) But the difficulty on this point in the case is, that fraud is not sufficiently alleged in the complaint ; nor, if it had been, would it have been made out by the evidence. It was not alleged nor proved that Stephen Griffing knew that the lot did not extend as far east as the allotment went. Upon the principle which he assumed, the eastern boundary adjusted by tho commissioners would have
But if the plaintiffs are correct in the point that the court of common pleas exceeded its jurisdiction, the judgment was a nullity, and as the lands allotted to the defendants or those under whom they claim have not been held in severalty for a period of twenty years, it is not too late to assert and maintain their injured rights. The suit in partition was, as the plaintiffs’ counsel justly remarked, on the trial, in rem. In such cases the jurisdiction of the court (particularly as it is in a special statutory proceeding) was confined to the subject matter, set forth and described in the petition. There is no principle of law or justice which could or should extend it any further. The petition announces to the parties defendants that a partition is demanded, of the land which it describes. The defendants act upon that supposition. If the lands and the estates of the owners are correctly described, no resistance is usually made to the application. In this case the defendants signed a cognovit, acknowledging the correctness of the allegations contained in
In many instances where a court exceeds its jurisdiction the judgment is simply void and of no effect, and the interposition of a court of equity is not necessary to prevent its operation. That, however, applies only to cases where the defect is manifest upon the record. Where it is not, and it is necessary to resort to exterior evidence to show it, as in this case, the judgment is a cloud upon the title to real estate, which can be dissipated only by a court of equity; and in such cases the injured party has a right to invoke the interference of such court for his protection.
The plaintiffs in this case ask, in addition, that this court will now order a partition between the parties. That cannot be done in this suit, nor do I think that it should be attempted until the
It must be decreed that the allotment made by the commissioners in partition, and the judgment of the court of common pleas of Suffolk county confirming it, are null and void and of no effect.
Ho costs are awarded in this suit, and it must be declared that the decree shall not so operate as to affect the payment of the costs in the court of common pleas.
Subsequently the parties appearing before Judge Strong, he' made the following decision in reference to the costs of this cause.
■ S. B. Strong, J. I was not present when the appeal in this action was argued at the general term, and had no voice in its decision, nor was I aware of its requisitions until after I had delivered my opinion. I have now been favored by the presiding justice with a copy of the opinion of the court, on the appeal. And I perceive by it that it was adjudged that the costs of such appeal were to abide the event of the suit. As the suit has been eventually decided against the then respondent Edgar Griffing, he must, pursuant to the decision at the general term, which is of course obligatory upon me, pay the eosts of the appeal. As the opinion at the general term in effect decided what I considered on the first trial to be, and what I think now were, the principal questions in the controversy, the parties should have acquiesced in it, and none of them should have rendered necessary another expensive trial. The second trial was caused by the persistence of the defendant Edgar Griffing, and he must also pay the costs of that trial. In other particulars each of the parties must bear their own costs.
As no decree has yet been entered, these directions are to have the same effect as if they had been incorporated (in lieu of what I directed as to the costs) in my original opinion.
S. B. Strong, Justice.]