
    Thomas O. Enos vs. Thomas Smith and Richard Bigelow.
    A judgment without notice and without the appearance of the party against whom it is rendered, is a nullity, and may be shown to he so even when it comes collaterally in question.
    Where the grantor in a deed is sued for a breach of his covenant of warranty, and the alleged breach consists of the recovery of dower in the land conveyed by an order of the probate court, it is clearly competent for the grantor to show that the land embraced in his deed was not subject to the dower allotted out of it, and to preclude him from such defence is error.
    ERROR, from the circuit court of Adams county; Hon. Charles C. Cage, judge.
    This was an action of covenant brought by Thomas Smith and Richard Bigelow, partners under the name and style of Thomas Smith & Co., against Thomas 0. Enos, to the May term, 1840, of the circuit court of Adams county. The declaration avers that Enos, by deed executed on the 17th day of May, 1832, conveyed to Thomas Smith & Co. “all those two certain lots and houses, and lots of ground in the city of Natchez, on South Cross street, between First and Second streets, fronting eighty feet on South Cross street, and on the east side thereof, and running back one hundred and sixty feet, and all improvements thereon, being the same property conveyed by the sheriff of Adams county to James C. Wilkins on the day of March 1832, and by the said Wilkins to said Enos on the same day,” and covenanted to warrant and defend the same and every part and parcel thereof against the claims of all persons claiming the same either in law or equity. The breach assigned in the declaration was, that at the time of the sealing and delivery of the deed, and long before, a certain Anna McComas owned and possessed a dower interest in all the above described premises; that on the 13th day of April 1833, she filed her petition in the probate court of Adams county, praying for an allotment of dower in said houses and lots,.to which petition the said Thomas Smith & Co. were made parties defendants ; that at the June term of the said probate court in the year 1833, an order was made directing the sheriff to lay off and allot to said Anna her dower'; that one third part of the said premises was accordingly allotted to her, and the plaintiffs totally removed and expelled therefrom, and the said Anna and her grantees had remained in possession of the same ever since. Wherefore the plaintiffs aver the said Enos hath failed to keep and perform his covenants contained in. said deed, &c. To this declaration the defendant filed fpur pleas; first, that he did not covenant to warrant the said described premises and every part thereof; second, that he did not convey to the said plaintiffs the said property described in their declaration ; third, that the plaintiffs were not ousted by said Anna, in pursuance of an order of' said probate court upon her said petition ; and fourth, that he did not convey said premises and warrant the same as stated in said declaration. To the first, second and fourth pleas the plaintiffs demurred, because they each amounted to a plea of non est factum, and neither was sworn to. The court sustained the demurrer, and gave the defendant leave to answer over. The record does not show what disposition was made of the third plea, it does not appear to have been demurred to nor issue taken on it. By leave of the court, the defendant after the demurrer to his first, second and fourth pleas had been sustained, filed three additional pleas ; first, that the plaintiffs had notice, at the date of their deed from the defendant, of said Anna McComas’s claim to dower, and that the same was not covered or included in said covenant; second, that the plaintiffs were not ousted by a paramount title; and third, that Anna McComas did not recover possession of any part of said premises by the judgment of any court of competent jurisdiction; and her possession was therefore tortious, and not a breach of the covenant in ■ the declaration mentioned. The plaintiffs demurred to the first of the last named pleas, because it contained no answer to the declaration, was argumentative and double, and not entitled of any term, and took issue on the second and third. The demurrer to the first plea was sustained by the court, and a judgment of respondeat ouster awarded, but the defendant refused to answer over again. On the trial the plaintiffs read to the jury a transcript of the record of the probate court of Adams county, on the petition of Anna McComas for an allotment of dower in the above described premises; which shows that she filed her petition in the probate court at the May term, 1838, averring that she was the widow and relict of Josias H. McComas, who died seized and possessed of the above-mentioned houses and lots; that she had never relinquished her dower in the same, and praying to have her dower allotted to her, &c.; that upon the petition of Thomas Smith & Co. they were made defendants to, and permitted to answer the petition of Anna McComas; their answer denies that she is entitled to dower in the said premises, and avers that on the 28th day of February, 1830, the said Josias H. McComas and Anna McComas, by deed duly executed, conveyed said houses and lots to Thomas O. Enos, and said Anna thereby relinquished all her right to dower therein; and 1hat the probate court rendered a decree in favor of said Anna, and ordered her dower to be allotted and laid off to her. The record further shows that Thomas Smith & Co. filed a bill of exceptions to said decree and order of the probate court, on the ground that the said Anna had not given sufficient notice of her said application for dower, the only notice given being by publication in a newspaper; that an appeal was prayed and granted from said decree to this court, and afterwards by this court, upon motion dismissed. This record was the only evidence adduced by the plaintiffs. The defendant’s counsel then offered to prove that the said decree of the probate court was irregular and void, because the notice required by the statute to be given upon applications for dower was not properly given, and was not presented to the probate court so proved and authenticated as to authorize said decree; but the court would not permit the proof to be made, and decided “ that the defendant could not introduce any evidence to show that the said decree of the probate court was irregularly made, but that the same was final and conclusive, and binding on the rights of the defendant Enos.” To the ruling out of .which evidence, and to the opinion of the court deciding that no evidence could be admitted to question the regularity of said decree assigning dower, the defendant excepted. The jury returned a verdict in favor of the plaintiffs for one thousand three hundred and thirty-seven dollars and seventy-seven cents damages, and judgment was entered accordingly, to reverse which the defendant brought the case to this court by writ of error.
    
      Van Winkle and Potter, for plaintiff in error.
    The ruling of the court that the probate record was “ final and conclusive and binding on the rights of the defendant Enos,” and that he could not even show its invalidity, was clearly erroneous; plaintiffs were bound to prove an eviction by title paramount, and the record was no evidence to show that fact. Noke’s case, 4 Co. Rep. 80; Kirby v. Hansaker, Cro. Jac. 315. Enos had no notice of the proceedings for dower, wherefore the record was not proof as against him, to show an eviction, and charge him upon his covenant. Hamilton v. Cutts, 4 Mass. 353; Williams v. Wetherbee, 4 Aik. 329.
    The petition for dower, set forth in this record, does not show that dower was claimed of the same lots conveyed by Enos, and therefore the record was not “conclusive” to show a decree for dower out of those lots. The probate record shows a mere decree for dower, but no part allotted and set off for dower, no possession delivered to the dowress ; it was therefore no proof of eviction.
    The third plea, first pleaded, denies an eviction under any order on said petition for dower; the second plea on respondeat ouster, denies that plaintiffs were ousted by title paramount; the last plea pleaded that they were not ousted by judgment of any court of competent jurisdiction. These were the issues to the jury, and the probate record must have been offered to prove one or more of them; that is, to prove an eviction under the decree for the allotment of dower or. an eviction by title paramount. Instead of being conclusive on the rights of Enos, as the court charged, the probate record was not evidence to prove, and did not tend to prove, any one issue in the cause.
    
      R. W. Gaines, for defendants in error.
    The only question is as to the ruling of the court below, that the decree of the probate court was conclusive. I am aware that some of the recent decisions of this court (not reported,) have a strong bearing against this opinion of the court below, but it appears to me somewhat difficult to reconcile these cases with others reported in Howard and 1 S. & M. In 5 How. 736, this court decided that the decrees of the probate court on matters confided to its jurisdiction, are conclusive, and cannot be set aside except for fraud. That they are obligatory in every other court until reversed, see also, 1 How. 450; and 1 S. & M. 527. Here the jurisdiction of the court was unquestionable, and the notice required by the statute, H. & H. 352, was given. I refer also to 3 How. 205.
    There is no exception to the opinion of the court as to the conclusiveness of the decree. The court will find this to be the fact in examining the bill of exceptions. The only exception is “ to the opinion of the court deciding that no evidence could be admitted to question the irregularity of said decree assigning dower.” This could not be done according to the decisions to which reference has been made. The case referred to in 4 Mass. 350, only decides that an eviction may be proved by parol. It does not decide that the judgment of a court of competent jurisdiction, may not be evidence of the same thing, and I imagine there is no authority for the position that sucha judgment can be impeached by parol testimony except for fraud.
    The bill of exceptions does not embody the testimony in the cause. For aught that appears there was ample evidence before the jury to prove the seizin of McComas, the husband of the widow, and every other fact necessary to sustain the judgment.
   Mr. Justice Clayton

delivered the opinion of the court.

This was an action of covenant brought by the defendants in error, against the plaintiff in error, for breach of warranty in regard to certain real estate. The alleged breach consisted of the recovery of dower in the premises by an order of the probate court of Adams county. Upon the trial the plaintiff in error offered to prove that the order of the probate court allotting the dower, was irregular and void, because of the want of notice of the application. The court below, decided that the defendant could introduce no testimony to show that the decree of the probate court was irregularly made, but that the same was final and binding and conclusive upon his rights.”

A judgment without notice, and without appearance of the party is a nullity. It may be shown to be so, even when it comes collaterally in question. In this case, however, it appears affirmatively by the record, that notice by publication had been given. • Objection to the sufficiency of this notice was made in the probate court, and the objection there overruled. An appeal was taken from that decision to this court, and the appeal was dismissed. The point in the case was therefore settled, so far as the parties to that proceeding were concerned. But according to the repeated adjudications of this court, the circuit judge went too far, when he held the decree of the probate court to be final and conclusive upon the rights of Enos. Farmers and Merchants Bank of Memphis v. Tappan and wife, 5 S. & M. 112; Holloman v. Holloman, Ib. 559; and James and wife v. Rowan and wife, 6 Ib. 393. It was clearly admissible for him to show that the land out of which the controversy grew, was not subject to the dower of Mrs. McComas, and it was error to preclude him from such defence. Although this was an incidental decision of the circuit judge, yet it was made the ground of exception, and had the effect to exclude all testimony as to the liability of the land to the dower right of Mrs. McGomas.

For this error the judgment will be reversed and the cause remanded for another trial.  