
    Lessee of Peter Fowler et al. v. B. B. Whiteman.
    Where, under the statute of February 23, 1835 (Swan, 701, old ed., note a),. the court of common pleas ordered publication as to non-resident defendants, weekly, for six consecutive weeks, of the pendency, objects, and prayer of the bill, and “ that a copy of such paper, containing said notice, be directed to the place of residence of said defendants, if known,” a subsequent finding in the decree, “that all the defendants are non-residents of the State1 of Ohio, (and) that notice has been given them by publication in due form of law, prior to the October term of this court, a. d. 1835,” imports that the former order had been complied with.
    Such finding of the court can not be collaterally impeached.
    It is well settled, that where the defendant, in an ejectment, has acquired the-possession, honestly and peaceably, under color of title, of the land in controversy, he may show an outstanding title in a stranger, and it will be a good defense, except in those cases where the plaintiff is entitled to the-possession, although the naked legal title may be in another; as in many cases of trust.
    Error to the court of common pleas of Hamilton county.
    The action below was one of ejectment.
    The plaintiff proved that Isabella Hill, widow of Peter Hill, inherited, in 1810, from her brother, Timothy Trimble, deceased, one-seventh of one-half of the land in controversy. Isabella Hill, who-died in 1827; left four heirs at law, of whom the heirs of Sarah, who was one of Isabella’s children, and wife of Charles Eowler (and who died in 1820, before her mother’s decease), represent the interest of their mother, Sarah. The plaintiff’s lessors are the descendants of Sarah Eowler, Peter and Nathaniel Eowler being, children, and Sarah M. Scott being' a grandchild, the sole heir at law of Isabella, wife of John E. Scott, a daughter of the deceased,. Mrs. Eowler.
    *It was also proved that Isabella Hill, and her said children and grandchildren, resided in the State of New York, as well before as after the death of Timothy Trimble.
    Upon the trial below, the defendant offered in evidence:
    1. A power of attorney, dated September 16,1812, duly executed and recorded January 7, 1813, whereby Thomas McNeal, Nathaniel P. Hill, and James King (administrators and nephews of Timothy Trimble) authorized Ralph Phillips to sell and convey the whole of the land.
    2. A deed from the same parties, by R. Phillips, their attorney, to N. Longworth, for the same land, dated January 7, 1813.
    3. The record of the decree in chancery, in the court of common pleas of Hamilton county, Ohio, in the case wherein Nicholas Longworth was complainant, and the plaintiff’s lessors and others, heirs at law of Timothy Trimble, deceased, were defendants. This record is set forth in the case of Buchanan v. Roy’s Lessee (ante, p. 258), and it need not here be repeated.
    4. A deed from N. Longworth to M. P. Cassilly, for the land described in the consent rule and plea, dated November 4,1830 ; and,
    5. A deed from Cassilly to the defendant in error for the same property; all of which were admitted by the court.
    The defendant also proved, by Thomas Cooper, that, in 1812, Phillips was on the land endeavoring to sell it to Longworth; that it was at that time wild and unsettled; and that it was worth, in 1813, about eight dollars per acre; and that, in 1813, one Agnew purchased a portion of the land of Mr. Longworth at five dollars per acre, and, after having made an improvement on his land, he gave it up to Mr. Longworth, rather than make the payment of the purchase money at that price.
    After the defendant had rested his case, the plaintiff offered testimony tending to prove that notice was not, in fact, given as ordered by the court; but the court rejected the evidence as incompetent.
    *The court was requested by plaintiff’s counsel to charge the jury as follows :
    1. If they believe that the premises described in the consent rule, and as to which issue was joined in this case, were not in pos•session of Nicholas Longworth at the time he filed the bills set ■out in the record given in evidence by the said defendant in this ■case, but that he had at that time sold and disposed of all his interest, and title in the then the said record and ceedings do not constitute any outstanding title in Nicholas Long-worth, and said premises were not affected by said record and proceedings.
    
      2. That the only interest which the decree and proceedings referred to above operate to convey, was the interest of the plaintiffs as heirs of Timothy Trimble; and that no interest of the plaintiffs as heirs of Isabella Hill, as proved in this ease, passed by virtue of the decree.
    These charges were refused by the court, and the jury was instructed that the record of the decree and proceedings in chancery constituted a bar to the plaintiff’s right to recover in the case, in the absence of proof of a subsequently acquired title by the lessors-of the plaintiff.
    The plaintiff excepted to the admission of the deed and power of attorney before mentioned—the record in the chancery cause and the testimony of Cooper. He likewise excepted to the rejection of the evidence offered to show that notice was not given, as-ordered by the court in the chancery cause, to the refusal to ehargeas requested, and to the charge as given.
    This cause was argued by Messrs. Gholson and O. M. Spencer, for plaintiff in error, and by Ball and Pugh, for defendants in-error.
    Not having been furnished with full notes of the argument on. some of the points, none of the citations made on these particular questions are here given. On the question, however, whether the-finding of the court of common pleas, in the chancery cause, that notice had been given as ordered, is conclusive, it has been deemed, proper to take from the arguments of counsel what follows:
    
      *Mr. Gholson.—The law in force át the time of the filing of the bill in the case of Longworth v. The Heirs of Trimble, and which continued in force until the termination of that case, was the act of February 23, 1835. Swan’s Stat. 701, note a.
    
    Under that law, all the defendants being non-residents, what was necessary to give the court jurisdiction over their persons so as to-justify a decree divesting them of their property ? It is clear that they were entitled to notice, but the manner in which it was to be-was to be an order of the court. If no such. ■order was made, there could be no jurisdiction. So, perhaps, if a mode were' prescribed contrary to the principles of natural justice; but any reasonable mode being prescribed, a compliance ■with it would operate as a notice, substituted under the directions ■of the statute, for personal service of process.
    The court did make an order, and no complaint is made that tho mode prescribed was unreasonable; the objection is, that it is not .pursued. The record shows that it was not pursued. Evidence was offered to show that it was not pursued, but that, on the contrary, a material part of the mode prescribed (that requiring a ■copy of the publication to be sent to the residences of the defendants), was not complied with ; or only complied with by sending one to that defendant whose interest it was to suppress all knowledge of the pendency of the proceedings from tho other defend■ants. This evidence was rejected, on the ground that the court had decided on the question of its own jurisdiction, by finding expressly in its decree, the fact that i£ notice had been given by publication in due form of Jaw.”
    Two questions now arise, which it is proposed to examine. 1. Is •the finding of a court, as to what are usually called jurisdictional facts conclusive, or only prima facie evidence of its jurisdiction? .2. Admitting, as a general rule in Ohio, that the finding of a court that it has acquired jurisdiction, by giving notice in the manner prescribed, estops any inquiry into that fact, does the rule apply in this case, in view of the law as it then stood in connection with the ^finding of the court in the form in which it appears in the record ?
    1; The general question, whether the finding of a court in favor ■of its own jurisdiction is conclusive, is one of great interest, and one on which there is a conflict of authority. It has been decided by tho late court in bank in the affirmative, and we now ask this ■court to review those decisions.
    We respectfully submit that decisions of any of the United States, as to points resting on the elementary principles of the common law, and involving general principles of right and justice, conflicting with decisions of other states, or of the Supreme Court of the United States, can never be considered settled, but will, and •should, from time to time, be re-examined, until a uniform rule be established; and it is by a fair and candid review and examination that the true rule will be ascertained and become uniform. Many citizens of our great country have important rights in states, other than that of their residence. To claim for the tribunals of those states a right to cut off, by an arbitrary finding contrary to the truth, and, of course, without even a chance for any hearing, those rights, is a serious and important claim. It is one as to which a reciprocity should exist, and if declined by any of the states, it should only be asserted by others, on the clearest and most cogent principles of necessity and policy; for, like every estoppel precluding an inquiry into truth, it is founded in apparent injustice.
    To allow any tribunal to usurp a jurisdiction, which does not rightfully exist, in fact, by an assertion entered on its record, is not only unjust to those prejudiced by the act, but it is unsanctioned by any proper deduction of logic or reasoning. This question was considered some years ago, in a case decided in the State of New Tork, and the argument, in the opinion of the court in that case, against the conclusiveness of any finding as to jurisdictional facts, seems to us to be conclusive, and, as we believe, has never been answered.
    We quote from the opinion :
    
      “ But it is strenuously contended, that if other matter may be pleaded by the defendant, he is estopped from asserting *anything against the allegation contained in the record. It imports perfect verity, it is said, and the parties to it can not be heard to impeach it. It appears to me that this proposition assumes the very fact to be established, which is the only question in issue. For what purpose does the defendant question the jurisdiction of the court ? Solely to show that its proceedings and judgments are void, and therefore the supposed record is not in truth a record. If the defendant had not proper notice of, and did not appear to the original action, all the state courts, with one exception, agree in opinion that the paper introduced as to him is no record; but if he can not show, even against the pretended record, that fact, on the alleged ground of the uncontrollable verity of the record, he is deprived of his defense by a process of reasoning that is, to my mind, little less than sophistry. The plaintiffs in effect declare to the defendant: The paper declared on is a record, because it says you appeared, and you appeared because the paper is a record This is reasoning in a circle. The appearance makes the record uncontrollable verity, and the record makes the appearance an unimpeachable fact. The fact which the defendant puts in issue (and. the whole current of state court authority shows it to be a proper issue), is the validity of the record, and yet it is contended that he-is estopped by the unimpeachable credit of that very record, from disproving any one allegation contained in it. Unless a court has-jurisdiction, it can never make a record which imports uncontrollable verity to the party over whom it has usurped jurisdiction, and he ought not, therefore, to be estopped by any allegation in that record from proving any fact that goes to establish the truth of a, plea alleging a want of jurisdiction.
    “ To say that the defendant may show the supposed record to be a nullity, by showing a want of jurisdiction in the court which made it, and. at the same time to estop him from doing so, because-the court have inserted in the record an allegation which he offers to prove untrue, does not seem to me to be very consistent. Under the operation of such a rule, a court could always sustain its iurisdiction if it had any solicitude *to do so ; or rather the party who had the benefit of its decision, and who by the practice of most tribunals is intrusted with making the record, would not fail, to put it beyond the power of his opponent to show a want of jurisdiction.” Starbuck v. Murray, 5 Wend. 157, 158, 160.
    The record under consideration, in the case of Starbuck v. Murray, was that of a judgment of a court of a sister state; but there-is no difference in the principle involved, and in the language of the learned annotator to Phillips on Evidence : “ The same may be-said respecting any judgment, sentence, or decree. A want of jurisdiction in the court pronouncing it, may always be set up when it’is sought to be enforced, or when any benefit is claimed under it; and the principle which ordinarily forbids the impeachment or contradiction of a record, has no sort of application to the case.” 3 Phil, on Ev., Cowon & H. Notes, 801, note 551, and cases cited. See also, to the same effect, Bloom v. Burdick, 1 Hill,. 130; Wright v. Douglass, 3 Barb. S. 0. 575; 20 Yt. 65; 11 How.. 449.
    In a recent case in New York, the same principle is strongly reaffirmed, and the general rule and the only exceptions to it clearly stated. In the case of Wright v. Douglass, 10 Barb. S. C. 97, 111, reference having been made to the opinion of Judge Bronson, in Bborn v. Burdick, 1 Hill, 138, 143, the court proceed to say: “"It is denied by the counsel for the plaintiff that want of jurisdiction. can be shown, collaterally, to defeat a judgment of a court of general jurisdiction. The true rule, however, is that laid down in the-opinion just cited—that in a court of general jurisdiction, it is to be presumed that the court had jurisdiction till the contrary appears ; but the want of jurisdiction may always be shown by evidence, except in one solitary case, to which I shall soon advert. Starbuck v. Murray, 5 Wend. 148; Mills v. Martin, 19 Johns. 33; 3 Wend. 267; 1 Saund. 73-75; 4 Cowen, 292; 6 Wend. 447. But when the jurisdiction depends on a fact that is litigated in a suit, and is adjudged in favor of that party who avers jurisdiction, then the question of jurisdiction is judicially ^decided, and the judgment record is conclusive evidence of jurisdiction, until set aside or reversed by a direct proceeding by appeal or a writ of error. Bell v. Bagley, 12 Pick. 272, 582, 583.” In another case, Broadhead v. McConnell, 3 Barb. S. C. 175, 185, the same ruléis laid down, and it is there said, following the train of reasoning used by Judge Marcy, in Starbuck v. Murray: “As the validity and conclusiveness of the decision must depend on the authority of the court to make it, the decision can not be conclusive evidence of that authority. This would be making the decision on the subject of jurisdiction conclusive evidence of authority to make the-decision. It would be saying that the court had jurisdiction to decide, because it had decided that it had jurisdiction.”
    In the recent case of Harris v. Hardeman, 14 How. 334, the remarks of Judge Marcy, quoted above, are also cited with approbation, and copied into the opinion of the court. And it would seem, in the language of another court, that- “the right to attack a judgment on the ground that the tribunal jmonouncing it was not invested with jurisdiction and authority, that it was inoperative and void, as being coram non judice, is undoubted with respect to-domestic and foreign judgments.” Bank of United States v. Merchants’ Bank of Baltimore, 7 Gill, 415, 430.
    There are some strong remarks bearing directly on this subject, made by Bronson, C. J., in Oakley v. Aspinwall, 4 Oomst. 513.
    He there says: “ When the courts of any state render a judgment against one who was not a citizen of that state, and was not. brought into court, the judgment is held absolutely void everywhere else, although it may have been expressly authorized by the-legislature of the state where it was rendered.” Starbuck v. Murray, 5 Wend. 148; Holbrook v. Murray, lb. 161; Harrod v. Baretts, 2 Hall, 302; Wilson v. Niles, lb. 338 ; Steele v. Smith, 7 Watts & Serg. 447; Hannon v. Taylor, 2 Yt. 65; Ewer v. Coffin, 1 Cush. 23 ; Hall v. Williams, 6 Pick. 232.”
    * “ I doubt whether such a judgment is of any force in the state where it was rendered. Under our form of government, it is questionable, to say the least, whether the legislature can in any case, without an express license from the people, authorize a judgment which shall operate in personam against a defendant who neither appeared nor was in any way served with process.”
    
      “ That state must not boast of its civilization, nor of its progress in the principles of civil liberty, where the legislature has power to provide that a man may be condemned unheard.”
    Can it be that the power, which it would not be competent for the legislature to grant, may be effectually exercised by the insertion in the entry of the judgment or decree of a few words, which, it is well known, arc inserted as a matter of form, and without any inquiry on the part of the court, by “the party who had the benefit of its decision, and who by the practice of most tribunals is intrusted with making the record.” 5 Wend. 160.
    The giving to the insertion in the record of a court of general jurisdiction of a finding that notice has been given or a publication made, the effect of an estoppel, and placing it on the same footing as a judgment or a decree on the points in issue, in a case whore there is jurisdiction of the cause and parties, is a violation of several established principles and maxims of the law.
    The jurisdiction of a court of general jurisdiction need not be shown. It is always presumed. An assertion of it by express terms in the record is unnecessary, and according to the well-known maxim should avail nothing : “ Expressio eorum quce tacite insunt nihil operatur.”
    
    Such a finding is a work of supererogation, from which neither credit nor profit should be derived.
    The jurisdiction of a court of special jurisdiction must appear; it is not presumed. When the facts necessary to give jurisdiction to such a court are stated in its record, it its placed in the same position which a court of general jurisdiction occupies without any such statement. The error is, to suppose that a court of general jurisdiction is placed in a better *p°sM°n by.doing that which is only required of a court of special jurisdiction. 7 Gill, 430; 18 Com. 9.
    
      The question whether an absent defendant has been notified by a publication, is, from its very nature, not a matter in issue in the cause. “ The principle upon which judgments are held conclusive upon the parties, requires that the rule should apply only to that which was directly in issue." “ It is only to the material allegations of one party that the other can be called to answer ; it is only upon such that an issue can properly be formed ; to such alone can testimony be regularly adduced; and upon such an issue only is judgment to be rendered. A record, therefore, is not held conclusive as to the truth of any allegations, which were not material or traversable; but, as to things material and traversable, it is conclusive and final.” 1 G-reenl. Ev., sec. 528 ; 15 New Hamp. 16.
    If the court, however, shall maintain, as a general rule, that the finding by a court that publication has been made, can not be controverted in a case where publication is sufficient to authorize the the court to act, we proceed to inquire:
    2. Whether the rule, will be found to apply on an examination of the record in the case of Longworth v. The Heirs of Trimble, and in view of the .law as it then stood ?
    Eor a brief period, embracing, however, the time of commencing and concluding the case of Longworth v. The Heirs of Trimble, there was no law prescribing a publication of notice or any other particular mode of bringing into court, a non-resident party. The law then required that the court should prescribe the mode in each particular case. If there be such an order, and then a finding by the court that it has been complied with, it might be said that the general rule, which is claimed to have been adopted in Ohio, would apply. To ascertain this, we ask the examination by the court of the record in the case of Longworth v. The Heirs of Trimble.
    The journal entries show that the court directed the mode of notifying the defendants, all of them being non-residents. This mode embraced two essential requisites. 1. A publication of a notice showing the pendency, objects, and prayer of *the bill in some newspaper of general circulation' in Hamilton county; 2. That a copy of the paper containing the notice should be directed to the place of residence of the defendants, if known.
    The finding of the court, which is relied on as an estoppel in this case, is in these words: “ The court find that all the defendants are non-residents of the State of Ohio, that notice has been given them by publication, in due form of law, prior to the October term of this court, a. d. 1835.” What is the fair interpretation of this language? Oousider the circumstances. Shoi’tly before the suit was brought, there was a law in force prescribing the mode in which publication should be made. A publication in due form of law would have been a most clear and aj)t expression, had that law continued in force. It had, however, been repealed, and there-was no due form, of law. What is the conclusion ? The court acted on the supposition that the suit had been brought before the repeal of the law, and without reference to the order directing the mode of giving notice. The mind, then, of the court, never acted on the question whether the order had been complied with.
    This conclusion is strengthened by the consideration that the journal entry, showing the order of the court as to the mode of giving notice, forms no part of the final record. It has been found, since the making of the final record, on the journal, and brought as evidence into this case.
    To escape the conclusion that the court never passed on the. question whether the terms of the order, directing how jurisdiction might be acquired, how notice should be given, were complied with, it is said that the due form of publication which had been prescribed by law, and that prescribed by the order, were the same. What, then, becomes of the requisition that a copy of the paper should be sent to the place of residence of the defendants, if known ? To meet this requisition, there should have been a finding, either that the copies had been sent to the defendants, or that, the place of their residence was unknown. The finding, most unquestionably, does not meet this point—it is an essential point, which can not in justice be rejected.
    *The requisition, that a copy of the paper containing the-statement of the pendency, object, and prayer of the bill should be-sent to the defendants, was more likely to cause actual notice than any other mode which could be adopted short of an actual service-of process.
    If, then, there be no finding, and of'course no estoppel, the only question which can arise is whether the court is prepared to say that so important a requisition may be dispensed with. We have already called the attention of the court to the authorities by which strictness is enforced in cases of this description, but we need not ask for a strict rule. Any fair substantial compliance with the order would have embraced the sending of the copies to the defendants. It is what any fair, reasonable man would, do, And expect to have done. It is a means prescribed to give notice •which can not be dispensed with. Moore v. Stark, 1 Ohio St. 272.
    The question whether it was done is not shown by the record to have been passed on by the court? It must then be open to ■evidence; and evidence was offered in the court below, and rejected. This we claim to be error, and we insist that on this ground, if on no other, the judgment must be reversed.
    Mr. Pugh, for the defendant in error, made the following points And citations:
    Had the court jurisdiction of the person?
    It is said that this was a statutory proceeding; but that is a mistake. The language of the act passed February 23, 1835, as well as that of the act passed March 14, 1831 (Swan Stat. 701), denies •any such view.
    The method of giving notice was statutory, but so would the •service of a subpena have been. Swan Stat. 669, 700.
    Lawkins v. Lackey, 6 Monroe, 70, an order of publication .against a non-resident is a process like a writ of subpena against a resident.
    *Lessee of Paine v. Moreland, 15 Ohio, 444; Daniels v. Lessee of Stevens, 19 Ohio, 238; Lessee of Morgan v. Burnet, 18 Ohio, 535; Lessee of Newman v. The City of Cincinnati, 18 Ohio, 331.
    These last two cases to the point that this was not a statutory ■proceeding.
    The court theu had jurisdiction of the subject-matter, jurisdiction to give notice, and, necessarily, jurisdiction to decide upon the .sufficiency of the notice.
    The decree finds the fact of notice, and can not be collaterally impeached.
    Lessee of Boswell v. Sharp, 15 Ohio, 466, 467; Kay v. Watson, 17 Ohio, 30, bill of review; Lessee of Irwin v. Smith, Ib. 243; Lessee of Newman v. The City of Cincinnati, 18 Ohio, 330; Lessee of Morgan v. Burnet, Ib. 546, 547. See also Lessee of Moore v. Stark, 1 Ohio St. 369.
    There is a distinction between cases where jurisdiction depends on the appearance of the party, and those where the court has jurisdiction over the cause, and the right to direct how the party shall be brought before it.
    Was it necessary that a copy should be sent?
    That is no part of the giving of the notice under the order.
    It was a matter of abundant caution, and the court could subsequently dispense with it. So that, if not sent, the court dispensed with the requirement in the final decree.
    Can Mr. Riddle’s affidavit be used to impeach the record—prove want of notice ?
    Sargent v. The State Bank of Indiana, 12 Howard, 381, 384; Lessee of Morgan v. Burnet, 18 Ohio, 545.
    The statute did not require that proof of publication should either be filed or preserved—so that the court will presume other proof to support the decree.-
    The case of Green v. Breckinridge, 4 Monroe, 541, is not applicable, because there the statute required the proofs to be filed (p. 544).
    That was a bill to review and enforce the decree.
    *In addition to the cases already cited, see the following as to presumptions in favor of courts of general jurisdiction :
    Reynolds v. Stansbury, 20 Ohio, 533; Lessee of Highway v. Pendleton, 15 Ohio, 752, 753; Lessee of Parker v. Miller, 9 Ohio, 114, 115; Voorhees v. The Bank of the United States, 10 Peters, 449; Grignon’s Lessee v. Astor, 2 Howard, 319; Tidwell v. Worthington’s Heirs, 8 Dana, 77; Kilcrease v. Blythe, 6 Humph. 378; Gary v. May, 16 Ohio, 79, 80, bill of review.
   The opinion of the court was delivered by

Corwin, C. J.

This is a writ of error to the common pleas of

Hamilton county, reserved by the district court for decision by this court. The original act was ejectment by certain heirs of one Timothy Trimble against the defendant in error. Upon the trial, the plaintiff having shown a prima facia right to recover, and rested in chief, the defendant offered in evidence a duly authenticated transcript of a record of a suit in chancery in Hamilton common pleas, brought by Nicholas Longworth against the heirs of said Timothy Trimble; in*which suit Longworth, before the commencement of the action of ejectment, obtained a decree for a release to him cf the title of said heirs. To the admission of this transcript the plaintiffs objected upon two grounds :

1. That the court that pronounced the decree, had no jurisdiction of the cause stated in the hill, or of the persons therein named as defendants; and therefore the decree was void.

2. That the defendant in the ejectment was not a party, or privy, to the decree ; and therefore had no right to use it.

The court overruled these objections, and permitted the transcript to go in evidence; to which ruling the plaintiff excepted, and now assigns the same for error.

At the time the bill was filed, and during the whole pendency of the suit, the heirs of Trimble were non-residents of Ohio. No subpena was served on either of them ; but it *aj>pears, by the decree, that the court found, “that all the defendants are non-residents of the State of Ohio, [and] that notice has been given them by publication in due form of law prior to the October term of this court, A. D. 1835.”

By the statute then in force, notice to non-resident defendants was to be given in such mode as the court should direct; and, accordingly, the court had, at the June term, 1835, made the following order: “ It being shown to the court that the defendants in this cause are not residents of the State of Ohio, court order that notice of the pendency, objects, and prayer of the bill be given to the said defendants by publication, weekly, for six successive weeks, in some newspaper published and of general circulation in the county of Hamilton, and that a copy of such paper containing said notice be directed to the place of residence of said defendants, if known.”

At the October term, 1835, the following entry was made on the journal: “Due proof of the publication of the pendency of this cause being now filed, thereupon rule for answer in sixty days, and cause continued.”

At the same time a copy of the notice of the' pendency, objects, and prayer of the bill, with proof of its due publication in the Cincinnati Gazette, was filed; and also the following affidavit:

“Adam N. Riddle, being duly sworn, deposeth and'saith that the Cincinnati Gazette, the newspaper in which the above notice was inserted, was by said deponent transmitted by mail to Nathaniel P. Hill and others, defendants in said cause, to Montgomery, Orange county, New York, on the 11th July, a. d. 1835. Further deponent saith not.”

The defendant having rested in chief, the plaintiff offered testimony tending to prove that, at the time the order of June term was made, and when the notice was published in the Gazette, some of the defendants to the bill resided in New Toxic, others in Pennsylvania, aixd others in New Jersey, and that their respective places of residence were known to said Adam N. Riddle, who was Longworth’s solicitor ; but that he had seiit copies of the notice to only part of them, *and that among those to whom he had not sent, were the lessors of the plaintiff.

The object of this testimony was to show that the order of June term had not been complied with, and that consequexxtly the chancery court never obtained jurisdiction of the plaintiff’s lessors, and the decree as to them was void.

The testimony was objected to by the defendant, and the objection sustained; the court ruling: 1. That the finding in the decree, that notice had beeix given by publication, imported that the order of June term had been fully complied with ; 2. That this finding could not be impeached collaterally.

To which decision the plaintiff excepted, and now assigns it for ex’ror.

Other testimony than that above stated was given, and certain instructions to the jury asked; raising several questions that, in the view we take of the case, it is unnecessary to decide. For if the decree was valid as against the lessors of the plaintiff, and if the defendant had a right.to avail himself of it as a defense, the case was clearly against the plaintiff, and judgment was rightly rendered against him.

As to the objection that the bill in chancery showed no cause of which the court had jurisdiction, we have already, at this term, considered and overruled it, in the case of' Buchanaii v. Roy.

As to the point, that the defendant was not a party, or privy, to the decree, and therefore lrad xxo right to avail himself of it, we think it entitled to no weight. Where a person forcibly disseizes another, so that an action of forcible entry would lie, he is not permitted in such an action, or in an action of ejectment, brought by the disseizee, to maintain his possession by showing a good title in himself, much less in a stranger. And it has been held, that although the entry was not with force, yet, if the defendant is a bare trespasser without colorable claim, he shall not be allowed to defeat the action of the person having the equitable right to the possession, and adducing a prima fade legal title, by showing a mere naked legal estate outstanding in a third person.

*But it is certainly well settled that where the defendant has acquired the possession honestly and peacoabty, under color of title, he may show such outstanding estate in a stranger; and it will be a good defense, except in those cases where the plaintiff is entitled to the possession, although the naked legal title may be in another, as frequently happens in cases of trust.

Now, for aught that appears, Whiteman did acquire possession, honestly, peaceably, and under color of title, and therefore had a perfect right to use the decree in his defense.

This brings us to the main question in the case. Did the court err in ruling that the finding in the decree imported that the order of June term had been complied with, and that such finding could not be collaterally impeached? We think the court were justified in construing the language of the decree as they did; and a majority of us are of opinion that the testimony to impeach the finding was properly excluded.

It has become established by a series of decisions in Ohio, that the finding of a court of general jurisdiction upon a subject-matter properly before it, shall not be collaterally impeached, but whilst •such finding is unreserved, it is conclusive of the matter so found. A party to such finding or decree conceiving himself prejudiced thereby, must resort to some one of the various modes provided by the law, for appeal, review, rehearing, or impeachment. Lessee of Boswell v. Sharp, 15 Ohio, 466; Lessee of Irvin v. Smith, Ib. 242; Lessee of Newman v. The City of Cincinnati, 18 Ohio, 330; Lessee of Morgan v. Burnet, Ib. 546.

We see no reason to disturb the rule established by these cases, but, on the contrary, are of opinion that'it is founded in good policy, and that a due regard to the solemnity of judicial proceedings requires its strict observance.

Thurman and Ranney, JJ.,

dissented, on the ground that the finding that notice had been given was not conclusive, and might be disapproved.

Judgment affirmed.  