84 Ind. 71 | Ind. | 1882
Appellant instituted this action to compel partition of real estate, alleging in his petition that he is the owner of an undivided one-third part thereof, and that the appellees are husband and wife, and own the remaining two-thirds as tenants by entireties.
The judgment in the first action concludes the appellant,, and the court did right in overruling the demurrer to appellee’s answer. In his complaint in that action the appellant asserted the appellee’s title to be a right in fee, and recovered ajudgmentsustaininghis averment, and he can not collaterally attack that judgment. The decree in the first case is not void as to the husband, whatever it may be as to the wife. A judgment in partition is valid as to the parties served with process, although, of course, invalid as to those not served. Waltz v. Borroway, 25 Ind. 380; Dwiggins v. Cook, 71 Ind. 579. The fact that Elizabeth Scott was not a party does not invalidate the judgment as to her husband and co-appellee, who was a party and who joined issue with the appellant.
Counsel argue that the first judgment is a nullity, because the title was in the husband and wife as a joint and indivisible one, and that, unless both were in court, no judgment could be rendered affecting the rights of either. The fallacy of this argument is manifest. As against the judgment decreeing the husband to be the owner of two-thirds and appellant the owner of one-third in fee of the land, the latter has no right
Judgment affirmed.