ments, sec. 334; Davis v. Davis, 61 Me. 395; Murray v. White, 58 Vt. 45; Granger v. Clark, 22 Me. 128; Boston &. W. Corp. v. Sparhawk, 1 Allen, 448; 79 Am. Dec. 750; Demerit v. Lyford, 27 N. H. 541; Krekeler v. Ritter, 62 N. Y. 372; Weiss v. Guerineau, 109 Ind. 438; Callahan v. Griswold, 9 Mo. 775; Mason v. Messenger, 17 Iowa, 261. From these and many other authorities that could be cited, we take the law to be, that a judgment of a court of this state, having jurisdiction over the subject-matter and the parties, cannot be questioned collaterally for fraud aliunde the record, by the parties or privies.

The case relied upon by the respondent as announcing a contrary doctrine is Mandeville v. Reynolds, 68 N. Y. 528. This was an action on a judgment, the defense to which was based upon a satisfaction of the judgment of record, and upon an order of court ratifying that satisfaction. The plaintiff offered to show that the entry upon the docket and the order was obtained by fraud and collusion. The court held that such evidence was competent, and in the opinion there are statements to the effect that a judgment obtained by fraud could be attacked collaterally. This decision was made under the reform code of procedure of the state of New York, which permits equitable defenses to be pleaded in actions at law, and the court says: "The court acts upon the matters involved in the action, now, in a double capacity: as a court of law and a court of equity. As a court of equity, it meets the questions of the validity of the judgment, not as one of law, but as of equity, and takes hold of the facts offered to it, not as a collateral attack upon the judgment, but as a direct assault, which, by the changing nature of the suit and trial, has become the main question, and legitimately before it for trial." In this state, the distinction between proceedings at law and in equity is still maintained: Burrage v. Bonanza G. & Q. M. Co., 12 Or. 169. Authorities under the reform codes of procedure are therefore not applicable here.

We have so far treated this question on the theory that the evidence shows the decree to have been obtained by fraud, and our views as to the law render it unnecessary to examine the evidence; but in passing, we deem it proper to say that we cannot agree with counsel for respondent in their construction of the testimony. We think the evidence signally fails to show that the decree was obtained by fraud or collusion. It is also claimed that the stipulation in the partition suit was entered into by plaintiff's attorney without her knowledge

or consent. This claim is not sustained by the testimony. It is true, plaintiff says she knew nothing about the proceedings in the suit; but the attorney who appeared for her testifies that she was informed of and consented to every step taken therein, and the referee who made the partition says that she was present when he was examining the premises for the purpose of partitioning the same, that she knew what he was doing, and was consulted about the matter.

It is also claimed the decree is void because the partition was made by only one referee, and not three, as provided by statute. At most this was but an irregularity, and cannot be inquired into in this suit: Cole v. Hall, 2 Hill, 625; Kinnier v. Kinnier, 45 N. Y. 535; 6 Am. Rep. 132.

It follows, therefore, that the decree of the court below must be reversed, and a decree entered here in favor of defendants.

JUDGMENT-CONCLUSIVENESS 07. A domestic judgment of a court of general jurisdiction, upon a subject-matter within the scope of its power, is so conclusive that evidence aliunde will not be admitted to contradict it: Wilkerson v. Schoonmaker, 77 Tex. 615; 19 Am. St. Rep. 803, and note. A judgment of a court of general jurisdiction is conclusive upon every other court until reversed: Haines v. Flinn, 26 Neb. 380; 18 Am. St. Rep. 785, and note; Turner v. Staples, 86 Va. 300; National Bank v. Lester, 73 Tex. 542; Sabrinos v. Chamberlain, 76 Tex. 625.

JUDGMENT-COLLATERAL ATTACK FOR ERROR. A judgment cannot be collaterally attacked because of error in issuing an execution thereon: Estate of Hanika, 138 Pa. St. 330; 21 Am. St. Rep. 907, and note. All irregulari. ties in the exercise of a court of general jurisdiction are cured by final judg ment, and it cannot be collaterally attacked: Apel v. Kelsey, 52 Ark. 341; 20 Am. St. Rep. 183, and note; Fischer v. Holmes, 123 Ind. 525. JUDGMENT-WHEN CONCLUSIVE IN A COLLATERAL PROCEEDING. - A judgment is conclusive on all defenses which could have been presented by the exercise of due diligence: Hobby v. Bunch, 83 Ga. 1; 20 Am. St. Rep. 301, and note.

JUDGMENT-COLLATERAL ATTACK FOR FRAUD. -A sheriffs return, though false, cannot be impeached in a collateral proceeding to avoid a judgment authorized thereby: Thomas v. Ireland, 88 Ky. 581; 21 Am. St. Rep. 356, and note. In a collateral attack on a judgment, evidence of fraud not found on the judgment roll will not be received to avoid the judgment, though the fraud was in obtaining jurisdiction: Williams ▼. Haynes, 77 Tex. 283; 19 Am. St. Rep. 752, and note. A sentence or decree is conclusive upon all parties, unless fraud or mistake be proved: Tehan v. Maloy, 45 N. J. Eq. 68.

CO-TENANCY -EFFECT OF POSSESSION BY ONE CO-TENANT. — The possession of one co-tenant is the possession of all: Page v. Branch, 97 N. C. 97; 2 Am. St. Rep. 281, and note; McGee v. Hall, 26 S. C. 179; Benefield v. Albert, 132 Ill. 665; McClure v. Colyear, 80 Cal. 378. Entry of one co-tenant is entry of all: Hudson v. Coe, 79 Me. 83; 1 Am. St. Rep. 288, and note.

COLLATERAL ATTACKS UPON JUDGMENTS. The definition of a collateral attack given in the principal case, while it is not, so far as we are aware, supported by any authority, may, we think, be accepted as being as nearly cor rect as a general definition can be; but, like many other general definitions, it is of little or no aid in determining such special cases as are involved in doubt sufficient to require particular consideration. It seems too obvious to require mention, that a proceeding to annul, modify, or correct a judgment is a direct proceeding. It is pointed directly at a judgment, and if it is successfully maintained, the judgment, or some part of it, must succumb to the attack and cease to exist. But there have been many attempts to annul, modify, or correct judgments which have failed, and must again fail, if made under like circumstances, and many collateral attacks which have succeeded, and must again succeed, under similar conditions. Therefore, the question most worthy of attention is not, What is a collateral attack? but is, When may an attack, though collateral, be made with success?

When a judgment of a court of record is offered in evidence, it may appear, either from the judgment itself, or from the record of which it is a part, that the court did not have jurisdiction of the subject-matter of the action, or of the person of the defendant, or was without power to grant the relief which it undertook to grant, and therefore the judgment must either be denied all effect, or denied effect as to such portion of it as the court had no power to render: Freeman on Judgments, secs. 117, 120. The same result follows when a judgment of a court of special or limited jurisdiction is offered in evidence, and the subject-matter was not within the jurisdiction of the court, or it does not affirmatively appear that the court acquired jurisdiction over the parties against whom it rendered judgment: Freeman on Judg. ments, sec. 517; Palmer v. Oakley, 2 Doug. 433; 47 Am. Dec. 41; Horan v. Wahrenberger, 9 Tex. 313; 58 Am. Dec. 145; Cooper v. Sunderland, 3 Iowa, 114; 66 Am. Dec. 52; People's S. B. v. Wilcox, 15 R. I. 258; 2 Am. St. Rep. 894. In these cases there is no attack upon the judgment, either direct or collateral. That which was offered as a judgment appears, on inspection, not to be what it was claimed to be, and no necessity arises for attacking it in any manner.

A motion to set aside a judgment falls within the definition given in the principal case of a direct attack, but the rules by which it is to be determined are sometimes those applicable to direct, and other times those applicable to collateral, attacks. If the motion is made during the term at which the judgment was rendered, the judge may grant it for any reason and upon any evidence which to him seems sufficient, and his action will not be reviewed by the appellate court: Freeman on Judgments, sec. 90; Bolton v. McKinley, 22 Ill. 203; In re Marquis, 85 Mo. 615; Underwood v. Sledge, 27 Ark. 295; Volland v. Wilcox, 17 Neb. 46; Fraley v. Feather, 46 N. J. L. 429; State v. Sowders, 42 Kan. 312; Blum v. Wettermark, 58 Tex. 125. If, on the ●ther hand, the motion is made under a statute authorizing it to be granted, if made within a time and for a cause specified in such statute, it may well be regarded as a direct attack if made within such time and for one of such causes. Therefore the moving party is not bound by the record, and, notwithstanding its assertions to the contrary, may establish by competent extrinsic evidence the truth of the facts on which he bases his claim to relief: Freeman on Judgments, sec. 109; McKinley v. Tuttle, 34 Cal. 235; Mosseaux v. Brigham, 19 Vt. 457; Gay v. Grant, 101 N. C. 206. With respect to mere errors and irregularities of proceeding or decision not specified in

the statute as grounds for relief, the motion is doubtless controlled by the rules applicable to collateral attacks, and such errors and irregularities should be regarded as no longer open to consideration.

If a motion to set aside a judgment is not made during the term at which it was rendered, nor within the time and upon a ground specified by statute, the attack is still direct, if it be true that all proceedings instituted for the express purpose of annulling a judgment are direct attacks upon it; but the authorities do not agree as to whether the moving party is subject to the rules governing direct attacks or not. If the motion is upon the ground that the judgment is void, it may be entertained irrespective of the lapse of time; and if, from an inspection of the judgment roll, it appears that the judgment is a nullity, all courts agree that it should be set aside on the ground that it is not, in contemplation of law, a judgment, and that to permit it to stand on the records of the court as a judgment is liable to result in an abuse of the process of the court, and to occasion innocent persons to place a delusive reliance upon it: Freeman on Judgments, sec. 98; Winslow v. Anderson, 3 Dev. & B. 9; 32 Am. Dec. 651; Pantall v. Dickey, 123 Pa. St. 431; People v. Greene, 74 Cal. 400; 5 Am. St. Rep. 448; Olney v. Harvey, 50 Ill. 453; 99 Am. Dec. 530; Ladd v. Mason, 10 Or. 308; Milla v. Dickson, 6 Rich. 487; Hanson v. Wolcott, 19 Kan. 207; Baker v. Barclift, 76 Ala, 414. As to when a judgment is void in this extreme sense is a question upon which the courts cannot agree. The better rule, upon principle, is, we think, that the nullity of a judgment of a court of record, from whatever ground it may arise, should be apparent from an inspection of the judgment roll. If not confined to evidence found in such roll, the motion to vacate the judg ment should at least not be granted upon oral or other testimony not upon file in the action, and of the evidence of which an examination of all the records, files, and official memoranda connected with the cause imparts no notice: People v. Harrison, 84 Cal. 607; People v. Goodhue, 80 Cal. 199; Pettus v. McClannahan, 52 Ark. 55. But the majority of the decisions, as we un. derstand them, are in conflict with this rule, and permit a motion to vacate ■ judgment as void for want of jurisdiction to be entertained and granted at any time, if it appears to the court, from the evidence offered to it, though not found in the record, that the court did not acquire jurisdiction over the defendant, either because he was not served with process and did not appear in the action: Shuford v. Cain, 1 Abb. 302; In re College Street, 11 R. I. 472; Cotton v. McGehee, 54 Miss. 621; Peltus v. McClannahan, 52 Ala. 55; or, if his appearance was entered, that such entry was made by an attorney acting without authority: Yates v. Horanson, 7 Rob. (N. Y.) 12; McKelway v. Jones, 17 N. J. L. 345; Kenyon v. Schreck, 52 Ill. 382; Latimer v. Latimer, 22 8. C. 257; Vilas v. Plattsburg, 123 N. Y. 440; 20 Am. St. Rep. 771; Bradley v. Welch, 100 Mo. 258; Winters v. Means, 25 Neb. 274; 13 Am. St. Rep. 489; and it has been held that on such a motion the return of the proper officer showing the service of process on the defendant may be contradicted and disproved: Hanson v. Wolcott, 19 Kan. 208; Carr v. Commercial Bank, 16 Wis. 50; Heffner v. Gunz, 29 Minn. 108; Stancill v. Gay, 92 N. C. 455; Parker v. Spencer, 61 Tex. 155; Vilas v. Plattsburgh, 123 N. Y. 40; 20 Am. St. Rep. 771.

So far as the cases, or any of them, affirm that a motion to vacate a judgment interposed after the time specified by statute is a direct attack thereon, and may therefore be supported by evidence not admissible on a collateral attack, we think them erroneous. In some of the states there is no doubt that a judgment, whenever and wherever relied upon, may be met and over

come by extrinsic evidence showing to the satisfaction of the court that the tribunal pronouncing such judgment was without jurisdiction so to do, and that the judgment must, therefore, be disregarded and void. Where such is the law, it may be that a motion to vacate a judgment as void for want of jurisdiction, made at any time, may be sustained by extrinsic evidence; but even in these states, it would seem to be safer to leave the question of jurisdic tion, where it is to be determined upon such evidence, to be decided in some action or proceeding the trial of which may be more formal, and the means of ascertaining the truth more adequate, than upon the hearing of a motion. But where the general policy of the law is to protect judicial proceedings from collateral assault, and to assure innocent purchasers that they may rely thereon, unless jurisdictional vices and infirmities appear from an exam. ination of the record, it seems strange that a party should, by a mere motion, without any formal pleadings and without a regular trial, be able, after failing to resort to the remedies provided by statute, to have a judgment against him vacated, and the titles resting thereupon left without support. Conceding that the case is one in which the judgment ought to have been set aside as between the parties upon a reasonably prompt application, and that the moving party ought still to be granted relief, the circumstances may be, and often are, such that equitable terms should be imposed upon him; and such terms can be better regulated and enforced by an independent equitable action than upon proceedings by motion. Notwithstanding these considera. tions, there are, as we have already stated, courts which deem their authority to vacate judgments on motion as being inexhaustible, and which treat such motion, whenever made, as a direct proceeding in the hearing and determining of which evidence outside of the record is received and acted upon.

Irregularity is always a ground upon which a judgment may be attacked by motion to set it aside, and it has been said that a judgment is irregular whenever it is not entered in accordance with the practice and course of proceeding where it was rendered: Dick v. McLaurin, 63 N. C. 185; Davis v. Shaver, 1 Phill. (N. C.) 18; 91 Am. Dec. 92; Graf v. M. & M. Trans. Co., 18 Md. 364; Mailhouse v. Inloes, 18 Md. 329; Browning v. Roane, 9 Ark. 354; 50 Am. Dec. 218; Walters v. Walters, 132 Ill. 467; Knott v. Taylor, 99 N. C. 511; 6 Am. St. Rep. 547; Knox Co. Bank v. Doty, 9 Ohio St. 506; 75 Am. Dec. 479; Bowen v. Tory Mill Co., 31 Iowa, 460. But generally courts will not vacate their judgments on account of irregularities unless the application is promptly made, and the irregularity appears to have been prejudicial to the applicant: Stancill v. Gay, 92 N. C. 455; Jones ▼. 8. F. S. Co., 14 Nov. 172; Roberts v. Allman, 106 N. C. 391; Freeman on Judgments, sec. 97. In many of the states a judgment may be attacked upon motion to vacate it, for fraud in its procurement, though the application is made after the lapse of the term, and is based solely on extrinsic evidence: McIntosh v. Commission13 Kan. 171; In re Fisher, 15 Wis. 511; Dial v. Farrow, 1 McMull. 292; 36 Am. Dec. 267; Taylor v. Sindall, 34 Md. 38; Pyett ▼. Hatfield, 15 Lea, 473; Olmstead v. Olmstead, 41 Minn. 297; Allen v. McClellan, 12 Pa. St. 328; 51 Am. Dec. 608; Edson v. Edson, 108 Mass. 590; 11 Am. Rep. 393. But we judge the safer practice is to require relief to be sought by a suit in equity: Syme v. Trice, 96 N. C. 243; Sharp v. Danville, M. & 8. W. R. R., 106 N. C. 308; 19 Am. St. Rep. 533. In chancery the power of the court to discharge the enrollment and open the decree never terminated, unless there had been a regular trial on the merits. A decree may, therefore, where the chancery practice prevails, be, in effect, attacked and set aside, by showing by any competent evidence that it was not based on a trial on the merits, that it is

ers,