
    Denning vs. Corwin & Roberts.
    A judgment in partition under the statute, where part of the premises belongs to owners wnknmen, in not valid, unless it appear upon the face of the record that the affidavit required by the statute that the petitioner or plaintiff in partition is ignorant of the names, rights or titles of such owners, was duly presented to the court, and that the notice also required in such cases was duly published.
    This was an action of ejectment, tried at the Sullivan circuit in October, 2831, before the Hon. Charles H. Ruggles, one of the circuit judges.
    The plaintiff claimed an undivided 458 acres of lot No. 3, in the first division of the Minisink patent, and showed title under a deed from the comptroller of the state, and also to an undivided 56 acres by purchase from owners of the same lot, and rested. The defendants gave in evidence an exemplification of a record in partition in this court, by which it appeared—that in January term, 1821, John James Stewart and Thomas Alsop presented to the court a petition stating that they were seised in fee as tenants in common of and in two several undivided parcels of land, situate, being parts and parcels of lots No. 3, and No. 20, of the first division of the Minisink patent, in manner following, i. e.: that Stewart was seised of an undivided third part of each of the lots, and Alsop of an undivided fifty-fourth part of each of the lots, and that they, the petitioners, were ignorant of the names, rights, or titles of the owners or proprietors of the residue of the lots, and could not, therefore, state the same to the court. The petition further stated that the petitioners were desirous to have the premises divided amongst all the persons interested therein, according to the acts of the legislature in such case made and provided *and prayed that the premises might be divided by commissioners to be appointed by the court, between them and the parties unknown, according to the rights of the parties. (No affidavit is set forth in the record that the petitioners were ignorant of the names, rights or titles of the parties unknown; nor is it alleged in the record that the petition was accompanied by such an affidavit.)
    
    It further was alleged in the record that the petitioners prayed for such order on their petition as is directed by the statute, and that in May term, 1821, the petitioners appeared in court, and that the parties unknown, though solemnly demanded, came not, but made default, and that thereupon the court adjudged the rights of the petitioners to he, as the same had been set forth by them in their petition, and that partition of the lands, &c., should be made between them and the parties unknown, according to their respective rights therein, and appointed three commissioners to make partition accordingly. That in February term, 1824, the commissioners made a report that they had made partition of the premises, and allotted definite portions to the petitioners, and another portion to the owners unknown, and that the court thereupon confirmed the report, and adjudged that the petitioners should recover of the owners unknown $269,25 for their proportion of the costs and charges, and that the petitioners should have execution. The judgment was signed in April, 1824, and docketed in December of the same year. The defendants also proved on the trial that previous to the partition, John James Stewart, one of the plaintiffs therein, had title to an undivided third part of the lot No. Three, and read in evidence a deed from him to the defendants, bearing date 19th May, 1829, for the whole of that lot, excepting 100 acres ; they also proved a sale by execution on the judgment for costs against the owners unknown, of that portion of the premises allotted, by the commissioners in partition to such owners unknown, and a deed, in pursuance of such sale, bearing date 15th April, 1829, from the sheriff of Sullivan to the purchaser, who, on the day of the date of his deed conveyed to the defendants. The plaintiff objected that the record in partition ought not to be received in evidence, because the requirements of the statute authorizing partitions, had not been complied with by the plaintiffs *in partition, and specified that an affidavit that the plaintiffs were ignorant of the names, rights, or titles of the owners unknown had not been made or filed, and with the consent of the defendants introduced various exemplifications and certificates, obtained from the clerks of this court, showing all the proceedings which had been had and remained on record, in the prosecution of the partition suit, from which it appeared that no such affidavit was found on file, or enrolled in the record of the proceedings in each suit; and the plaintiff further objected that the record in partition did not contain on its face enough to give the court jurisdiction; and the judge being of this opinion, a verdict was found for the plaintiff for an undivided 514 acres of lot No. 3, subject to a stipulation between the parties, that if this court should be of opinion that the proceedings in partition were regular and valid, and the record therein sufficient, and the judgment absolute and conclusive against the plaintiff in this suit, then judgment to be entered for the defendants ; otherwise judgment to be entered for the plaintiff on the verdict of the jury.
    L. Jenkins, for the plaintiff.
    The record of partition produced on the trial was a nullity ; sufficient is not shown to give the court jurisdiction. The statute requires, where proceedings are had against unknown owners of land, that the petitioner shall not only state in his petition that the parties and the extent of their interest in the land, are unknown to him, but the petition shall be accompanied by an affidavit that the petitioner is ignorant of the names, rights or titles of such persons. 1 R. L. 507, § 1. No such affidavit is set forth in the record ; there is not even on averment that such affidavit was made and filed ; and, in addition thereto, it was affirmatively shown by the plaintiff that such paper was not remaining on the files of the court. The proceedings in partition were had under the statute, in a summary manner, and in a course different from the common law; and if the statute in such cases is not strictly pursued, all is a nullity and coram non judice. Cowp. 524. The court must have jurisdiction, not only of the subject matter, but of the person, 5 Johns. R. 41; 8 id. 90 & 197; 15 id. 121; 19 id. 33 & 41; 6 Wendell, *447; and if the bringing of the party into court is dispensed with, and other proceedings are substituted, which the statute declares shall be equivalent to the bringing into court of the party, a compliance with the requirements of the statutes must be shown and appear upon the record, as much so as that, in an ordinary personal action it should appear that the defendant is in custody or duly served with process. In Jackson v. Antell, 3 Johns. R. 459, where the plaintiff showed title under a judgment in partition, the defendant had judgment on the ground, that although the owner was in possession of part of the land at the time of the partition, he had not been made a party to the suit; and a similar decision was had in Jackson v. Vrooman, 13 Johns. R. 489. In Gallatian v. Cunningham, 8 Cowen, 370, Judge Wood-worth, in delivering his opinion, says, that the court have no jurisdiction in executing the act authorizing partition, until the preliminary steps pointed out by the statute have been taken; tho’ he admits, when the statute requires proof preliminary to an order of the court, and proof is submitted, but defective in its character, that the proceedings will not be void, but voidable only; and that a purchase, in other respects valid, will be supported. In the present case there was •no proof whatever submitted to the court that the petitioners were ignorant of the names of the unknown owners.
    J. A. Spencer, for the defendant.
    A judgment is conclusive until reversed or set aside, and every reasonable intendment will be made in support of a record. There being unknown owners in this case, it is fairly to be presumed that the court did not grant the order for such owners to appear and show title, unless the affidavit required by the statute was presented. The record shows that such order was granted, and that at a subsequent term the parties were called and did not appear. It is not usual in records of judgments, rendered by courts of general jurisdiction, to spread out the preliminary proceedings had in the commencement of a suit. The principle that where a special jurisdiction out of the course of the common law is created by statute, the statute must be strictly pursued or all is a nullity, is applicable only to inferior courts of common law to whom new powers are given ; but it does not extend to courts of general jurisdiction, although the proceedings are to be had in a summary manner, and not in the course of the common law ; it was not necessary, therefore, that the affidavit, the want of which is now relied upon on the other side, should be incorporated into the record. The judgment in partition cannot be attacked in this collateral way. If there has been an irregularity, the remedy is by motion ; and then, if such be the fact, the defendants may show that the affidavit was duly presented, although now it cannot be found. If the judgment is erroneous, a writ of error may be sued out, or relief may be sought in equity. It is not denied that, to support a judgment, a court must have jurisdiction of the subject matter, and of the person, or what is equivalent; but it is insisted that enough is here shown to warrant the intendment that all is right. The case of Gallatian v. Cunningham, cited on the other side, supports the principle for which the defendants contend, that the judgment cannot be attacked collaterally. That was a bill in equity ; and here, if the judgment is erroneous, let the plaintiff file his bill or bring his writ of error, and the question of the validity of judgment will be directly presented. In the cases of Jackson v. Antell and Jackson v. Vrooman, the defendants came within the proviso of the act saving the rights of owners not named in the proceedings, and the decisions there cannot affect this case. Besides, the defendants here claim to be entitled to protection as bona fide purchasers, and that as such, they are not bound to show the regularity of the proceedings in judgment and execution under which they purchased. 4 Johns. Ch. R. 85. 8 Cowen, 376. 2 Scho. & Lef. 577.
   By the Court,

Savage, Ch. J.

On the part of the plaintiff, it is contended that the judgment in partition is void for want of jurisdiction in the court, the requirements of the statute not having been complied with ; and on the part of the defendants, it is insisted that it is conclusive until reversed or set aside ; that it cannot be attacked collaterally, and that the defendants, being bona fide purchasers, are entitled to protection.

*That a judgment is conclusive upon parties and privies is a proposition not to be denied; but if a court has acted without jurisdiction, the proceeding is void ; and if this appears upon the face of the record, the whole is a nullity. In Borden v. Fitch, 15 Johns. R. 141, Chief Justice Thompson says, To give any binding effect to a judgment, it is essential that the court should have jurisdiction of the person and the subject matter ; and the want of jurisdiction is a matter that may always be set up against a judgment, when sought to be enforced, or when any benefit is claimed under it; the want of jurisdiction makes it utterly void and unavailable for any purpose.” And in Mills v. Martin, 19 Johns. R. 33, Ch. J. Spencer observes, “ No lawyer will controvert the position, that to uphold and give validity to the proceedings of a court, it must have jurisdiction of the person of the defendant, and of the cause; this principle is applicable to all courts, from the highest to the lowest.”

With respect to the proceedings in partition, now the subject of consideration, there can be no doubt that the court in which the judgment was rendered had jurisdiction of the subject of partition; but to authorize a judgment of partition, the parties must be before the court, or it must be shown to the court that some of them are unknown; and this must appear by the record, where the proceeding is against owners unknown; it is a proceeding in rem, and nothing is to be taken by intendment; there is avowedly nothing like personal notice to the parties interested as defendants; they are not even named; and the right of the plaintiffs in such cases depends entirely upon the fact to be proved to the court by affidavit, that the owners are unknown. The record states that in January term, 1821, the plaintiffs presented their petition in partition setting it out; the plaintiffs state their own interest in the premises, and proceed as follows: “And your petitioners further state and show to your honors, that they are ignorant of the names, rights or titles of the owners or proprietors of the residue of the two several lots, pieces or parcels of land, with their appurtenances, and cannot therefore state the same to this honorable court,” and pray that the premises may be divided. The record then *states that at the next May term, “until which day the said parties unknown had leave to imparle and then to answer the same,” &c. the plaintiffs appear by their attorney, “ and the parties unknown, though solemnly demanded, come not, but make default,” &c. Judgment that partition be made is then entered, and commissioners appointed. The statute gives the court no jurisdiction to take any step against unknown owners, until notice has been published according to the statute. Should not the record, therefore, show that it had been made to appear to the court by affidavit, that the owners were unknown to the plaintiffs, and that such notice as the statute requires in such cases had actually been given 1 Suppose a judgment record is produced, in which the plaintiff declares upon a promissory note, and the record does not show that the defendant is in custody, or has been served with process, or a copy of the declaration, and yet the court render judgment by default; would not such a record be an absolute nullity 1 The record produced proves nothing which could authorize the court to enter a judgment against unknown owners, by which they were to be divested of their property.

In my opinion the judge decided correctly, and the plaintiff is entitled to judgment.  