| Vt. | Jan 15, 1851
The opinion of the court was delivered by
The only question remaining in this case is, whether the decree of the probate court, affirmed in the county court, partitioning the land in dispute between the plaintiff and defendant,- as devisees in remainder after the estate of Judith Randall was ended, will conclude the defendant from showing, that no such estate, as was partitioned, in fact existed at the time.
We think, that decree will have no effect of that kind. The power of the probate court, in regard to partition, is limited to very narrow bounds. It only extends to cases of heirs and devisees. And in those cases, that court has no jurisdiction of the question of the title of the land, but only of the mode of partition, assuming that title existed in the intestate, or testator. The partition, so far as the court have jurisdiction, is conclusive, — that is, to the matter of division among the heirs, or devisees, of whatever estate exists, which they have a right to have thus divided. And if, in making such division, any one or more of the heirs should be excluded from his share, as was done in one case in Orleans county, in regard to the half blood of the ancestor, the- decree is nevertheless conclusive,
But beyond that the decree has no effect. That court has not, like the county court in ordinary cases of partition, power to receive a plea denying the title of the petitioner and try the issue thus formed. If it had, the question of title would undoubtedly be concluded. But it has nothing whatever to do with any such inquiry. The question of estate and title is assumed, and the proceeding is for the purpose of dividing whatever estate, or title, exists. If none finally exist, the proceeding goes for nothing. It is merely hypothetical. It is statutory, limited and exclusive, and, within its appropriate sphere, conclusive. But if the assumed basis fail, the effect of the decree fails also. '
The decree is purely in ran, and, to the extent of the jurisdiction, it binds all concerned, whether notified, or not. But it can have no effect in personam, in matters not within the jurisdiction of the court, in regard to any one, whether notified, or not, or whether they appear, or not. These circumstances are never important, in regard to the conclusiveness of judgments, whether in rem, or in personam.
If this title had been conveyed to a stranger, who had had no notice of these proceeding in the probate court, no one would perhaps claim, that his rights were concluded by a decree of partition, or distribution, among those claiming as devisees, or heirs. And the mere accident, that this land ■ was conveyed to one of the persons named in the will, as devisees in remainder, can make no difference. The partition only concludes his title under the will, and not any title, which he might, have as purchaser, and over -which the court had no power or control whatever.
Judgment reversed and ease remanded.