
    SUPREME COURT.
    Elizabeth Jordan, appellant, agt. John C. Van Epps, respondent.
    
      jDivorce—can a decree of, he attached, coUaterallyt—Dower—inchoate right of, can he determined and cut of hy partition suit.
    
    An inchoate right of dower can be determined and cut off by partition suit.
    A woman whose dower has not been admeasured may be made a party defendant in a partition suit; and if she be made a party to such suit, under an allegation that she is entitled, or claims to be entitled, to dower, the decree is conclusive as to her homestead right.
    A judgment rendered by a court having power lawfully conferred to deal with the general subject involved in the action having jurisdiction of the parties, although against the fact or without the facts to sustain it, is not void as rendered without jurisdiction, and cannot be questioned collaterally.
    A purchaser under a sale in partition is protected against all irregularities in the judgment, or in the proceedings upon which it was founded, which do not affect the jurisdiction of the court over the subject-matter or the parties.
    Can a decree of divorce be attacked collaterally by a party to such decree as against a third person ? Quiere.
    
    
      Fourth Department, General Term, January, 1880.
    Appeal from a judgment of Monroe county court entered in favor of defendant, October 16, 1878, upon the verdict of a jury — of nonsuit by direction of the court, and from an order of the special county judge of Monroe county denying a new trial thereof.
    This is an action of ejectment by plaintiff to recover an alleged dower interest, as the widow of one Christopher Jordan, in one acre of land in Rochester, Mew York, against the defendant, a purchaser under a partition sale. Summons was served on defendant October 26,1877; complaint, " ■ -oher 15, 1877. It alleges marriage of plaintiff October 28, 1850; the death of her husband, Christopher Jordan, March 14, 1876; conveyance by Christopher, March 18, 1852, of the premises in question, in which plaintiff did not join, and prays that the defendant deliver up the “undivided one-third” part of the described premises. Issue was joined by the service of defendant’s answer November 27, 1877: (1.) It denies the date of plaintiff’s marriage. (2.) Pleads in bar a divorce July 8, 1858, of her husband from plaintiff on the ground of adultery. (3.) Partition suit and deed thereunder, by which defendent came into and retains possession, the plaintiff herein being a party to the partition suit. The action was tried April 26,1878, before Monroe county special judge and a jury. A verdict for defendant was given under direction of the court. Upon motion a new trial was denied October 14, 1878. Plaintiff’s exceptions relate to the admission of the judgment roll of plaintiff’s divorce, the judgment roll of partition, on the ground that they were “ immaterial, incompetent and irrelevant,” and to plaintiff’s rejected offer to impeach, collaterally, the divorce of plaintiff’s husband from her.
    Facts Pkoveu.
    Plaintiff and Christopher J ordan were married October 28, 1850; that said Christopher, at the time, was owner in fee of the premises in suit, and in possession at the time of his subsequent conveyance of them; that, March 18,1852, he deeded them to George W. J ordan (a brother), in which conveyance the plaintiff Elizabeth did not join; a demand of defendant, who had made improvements since his partition deed, under which, among other things, he claimed title; that Christopher Jordan died March 14, 1876; that plaintiff and Christopher cohabited, after their marriage, up to the time they separated and he obtained a divorce from her; that they had trouble and separated about the time of the divorce, and afterwardsshe came back; that thereafter they occupied different rooms; that there was litigation in surrogate’s court, after Christopher’s decease, in which another woman claimed to be his wife; that on July 8, 1858, said Christopher obtained a divorce in blew York supreme court (Monroe county) from Elizabeth (the plaintiff and appellant here) on the ground of her adultery; that the judgment roll therein is regular on its face and shows personal service of summons on said Elizabeth, her answer, testimony on her behalf before the referee trial, report and decree, and that she was represented by counsel who contested in her behalf at all stages of the case; that there was a partition suit of the premises in question, to which suit Elizabeth (appellant here) was a party, by personal service upon her, April 3,1868, of the summons therein, and that, under the decree therein, defendant Van Epps was a purchaser and took possession of the premises under the referee’s deed therein. The judgment roll in the partition suit showed that it extended from February 3, 1868, until March 3, 1876; that two reports of referees therein were made; the first one was a nullity for the proceedings were all dismissed and a trial de novo afterwards had, in which referee Mr. Dunning made a second and final report, in 'which he finds that Christopher obtained from said Elizabeth said divorce above mentioned and allows her no dower on said petition. Judgment of partition was accordingly entered March 3, 1876, the premises sold to Van Epps (respondent here) and sale confirmed; that said Elizabeth Jordan appeared and unsuccessfully opposed the confirmation of said partition sale against said Van Epps; that she also tried to vacate said sale on her alleged claim of dower, and was defeated at supreme court special term.
    
      Fanning <& Williams, for respondent, made and argued the following points:
    I. Assuming the decree of divorce to be regular and valid the law is well settled that it bars the right of dower. The statute clearly is penal and bars all dower for a divorce for adultery (Bingham on Real Estate, page 648 ; Scribner on 
      
      Dower, 2 vol., p. 515; Willard on Real Estate, p. 70; Bishop on Marriage and Divorce, vol. 2, secs. 706-708; Schouler on Domestic Relations, p. 185; Hitts agt. Pitts, 13 Abb. [N. S.], R. , 272; S. C., 44 How., p. 264; S. C., 52 N. Y., 593; Schiffer agt. Pruden, 7 Jones & Spencers’ Superior Ct. R., 167; S. C., 64 N. Y., 51; Cropsey agt. Ogden, 11 N. Y. 228 ; Reynolds agt. Reynolds, 24 Wend., 193-198; Wait agt. Wait, 4 Barbour R., 192; S. C., 4 Comstock, 95, cited Kade, agt. Lauber, 48 How., p. 382; 5 Wait’s Sup. Ct. Practice, 710 ; 3 R. S. [Banks & Bros. 6th ed.], p. 157, sec. 61; 2 R. S. [Banks & Bros. 6th edi], p. 1120, sec. 188).
    II. The divorce could not be collaterally impeached by Elizabeth Jordan in this action, as against the defendant Van Epps, either for fraud of Christopher Jordan or irregularity. A third person might perhaps attack it, but a party to the action could not attack or question as against a third person (Freeman, on Judgments, sec. 33; 2 vol. Phillips on Ev., 80; People agt. Downing, 4 Sandf., 192; People agt. Townshend, 37 Barb., 521; Bush agt. Sheldon, 1 Day R. [Conn.], 170; McCraney agt. McCraney, 5 Iowa, 232-250; Greene agt. Greene, 2 Gray [Mass.], 361—367; Steen agt. Bennett, 24 Vermont, 303; Bishop on Marriage and Divorce, 2 vol., sec. 760; Herman on Estoppel, 159; Amory agt. Amory, 3 Bissell, 266; Granger agt. Clark, 22 Maine, 128; Davis agt. Davis, 61 Maine, 398; Martin agt. McLean, 49 Missouri, 361; Farrington agt. Bullard, 40 Barb., 513; White agt. Merritt, 7 N. Y., 353; Ray agt. Ronley, 4 T. & C., 431; Romain agt. Garth, 5 T. & C., 361; Krekler agt. Ritter, 62 N. Y., 373; 2 Best on Evi. [ Wood’s Notes], 1064 [739 marginal page] ; Casoniebal agt. Jerome, 58 N. Y. 316-321; Bragg agt. Loris, 1 Wood Ct. U. S., 209-211; Ross agt. Wood, 8 Hun, 185; Allen agt. Martin, 10 Wend., 301; Hahn agt. Kelly, 34 Cal. R., 391-402; Weston agt. Haynes, 49 Missouri, 263; Waltrick agt. Friedman, 71 N. Y., 601; Welles agt. Thornton, 45 Barb., 391; Pease agt. Whitten, 31 Maine, 117; Ross agt. Wood, 8 Hun, 185; 
      Watson agt. Watson, 47 How., 240; S. C., 1 Hun 267; Smith agt. Ramsey, 15 Nat. Bk. Reg., 448; Ray agt. Rowley, 1 Hun, 614; Sheldon agt. Stryker, 21 How., 329-332; Ferguson agt. Crawford, 7 Hun, 25; Brown agt. Nichols, 45 N. Y., 28; Spaulding agt. Baldwin, 31 Ind., 376; Bates agt. Spooner, 45 Id., 489; Winston agt. Hayes, 49 Missouri, 263; Bradner agt. Howard, 19 Albany Law Journal, 159; Lawrence agt. Hunt, 10 Wend., 81; Colvin agt. Colvin, 2 Paige Ch., 386; Cropsey agt. Ogden, 11 N. Y, 228-236).
    III. The plaintiff, Elizabeth Jordan, was estopped from questioning the divorce of Christopher (Brown agt. Balder, 3 Lansing, 284-290; De Riemer et al. agt. Cantillon, 4 John.’s Ch. R., 85 ; Bustard agt. Yates, 4 Dano [Ky.], 447).
    IY. The partition suit is a bar to this action. The plaintiff’s right of dower in the premises was directly adjudicated in that action, and denied. It was in issue and passed upon. Yan Epps being a purchaser under that decree can avail himself thereof. (Brevoort agt. Brevoort et al., 70 N. Y. 140; Howell agt. Mill, 56 N. Y., 226; Castle et al. agt. Noyes, 14 N. Y., 329 ; Casoni et al. agt. Jerome, 58 N. Y., 316, 321; 2 Best on Evi. [ Wood’s Notes], 1064 [739]; Freeman on Judgments, sec. 304; Herman on Estoppel, p. 98, sec. 92; Scribner on Dower, vol. 1, p. 331; Tanner agt. Niles, 1 Barb., 561; Jackson agt. Edwards, 6 Paige, 337; S. C., 22 Wend., 517; Mead agt. Mitchell, 17 N. Y., 210-217; Wright agt. Dunning, 46 Ill., 211; Clemens agt. Clemens, 37 N. Y., 72; Bloomer agt. Sturgis, 58 N. Y., 176; Blakely agt. Calder, 15 N. Y., 617; Whittemore agt. Shaw, 8 N. H., 393; Emberry agt. Conner, 3 Com., 511; Pentz agt. Kenster, 41 Missouri, 447-450; 5 Wait’s Pr., 116 and 182; Moore agt. Mayor, 8 N. Y., 110; Ehle agt. Brigham, 7 Barb., 494; Jenkins agt. Fahey, 18 Alb. Law Jour., 157; S. C., 7 N. Y. Wkly. Dig., 148 ; Wright agt. Dunning, 46 Ill., 281; Carter agt. Nichols, 42 N. Y. 26; Winston agt. Haynes, 46 Missouri, 263; Gerard’s Abstract of Titles, p. 622; Spaulding 
      agt. Baldwin, 31 Ind, 376; Dorsey agt. Thompson, 37 Maryland, 26-45 ; Secombe agt. R. R., 23 Wallace, 109-118; Woods agt. Lee, 21 Louisiana Annual R., 585; McCahill agt. Equitable Co., 26 N. J. Equity, 531-636 ; Yaple agt. Titus, 41 Penn., 195; Lawrence agt. Hunt, 10 Wend., 81; Kingsland agt. Spaulding, 3 Barb. Ch. R., 241; Brickhead agt Brown, 5 Sandf., 135; 1 Greenleaf on Evi., sec. 189; Whittlesey agt. Frauts, 1 N. Y. Wkly. Dig., 403; Dwight agt. St. John, 25 N. Y., 203-205; Stone agt. Flower, 47 N. Y. 566).
    
      Daniel Wood, for appellant
   Talcott, P. J.

This is an appeal from the judgment of the county court of Monroe county for the defendant, on the verdict of a jury and from an order denying a new trial in the case.

The action is ejectment for dower. The plaintiff having proved the seisin of her late husband, the possession of the defendant and her demand of dower in the premises rested; whereupon the defendant introduced and proved two judgment records, in the supreme court of this state.

(1.) A judgment in an action for a divorce instituted by Christopher Jordan, the late husband of the plaintiff, charging the plaintiff with various acts of adultery to which action the plaintiff appeared and defended, and which finally resulted in a decree of divorce a vinculo, on the ground of the adultery of the plaintiff, the record of which was filed July 8, 1858, in the office of the clerk of Monroe county where the parties then resided, and which judgment was conceded to be in all respects regular on its face.

(2.) A judgment roll in partition, in a suit wherein the said Christopher Jordan was plaintiff, and the said Elizabeth, the now plaintiff, one of the defendants under the decree, in which latter case, the premises in question were sold to the defendant in March, 1876. It appears that the partition suit was commenced in 1868, but by reason of various delays was protracted, and resulted in a final decree for the sale of the premises in March, 1878. The proof of this judgment in partition was objected to by the plaintiff’s counsel, on the ground that it was irrelevant, incompetent and immaterial.” The objection was overruled, and the judgment in partition, and the subsequent proceedings thereon were received in evidence, and the plaintiff excepted. The plaintiff’s counsel also makes various objections to the effect of the judgment in the action for divorce, which was conceded to be regular on its face, claiming that as the plaintiff’s inchoate right of dower was vested in her before the decree, and before the alleged act of adultery took place, such decree could not operate retrospectively to bar her dower.

The counsel for the plaintiff also offered, in substance, to prove that the entering of the decree in the action for the divorce was fraudulent as against the plaintiff, who, as was alleged, continued to reside with the said Christopher Jordan, as bis wife, for many years after the said decree was obtained, and down to the time of his decease. In the disposition which we propose to make of the case, the various objections raised to the validity of the decree of divorce will not be considered, as we see no reason to doubt but that the decree in the action of partition and the sale under the same to the defendant is a bar to the plaintiff’s action to recover the premises in question, which constituted the land sold under the decree and under which sale and purchase the defendant claims title.

The judgment record in the action for partition is not set out at length, but instead thereof, the case contained various recitals referring to the contents of that judgment record. From this circumstance it is difficult in all respects to fully understand all the proceedings in the partition suit, but as the appellant made up the bill of exceptions and has caused to be inserted therein these various detached recitals instead of the entire judgment record in partition, it will be assumed that the judgment in partition was in all respects regular, so far as any question relating to the jurisdiction of the court is concerned.

The complaint in the partition suit avers, that the defendant Elizabeth Jordan claims an ineTwate right of dower in said premises, as never having signed any deed or conveyance of said premises, which were conveyed by her husband Christopher Jordan in 1852, to George W. Jordan, in which conveyance she did not join.”

This roll contained, among other things, “ proof of service of summons and notice of the object of action on Elizabeth Jordan (plaintiff herein), personally, on April, 1868,” and averred that the premises of which partition was sought were subject to the inchoate right of dower of the said Elizabeth Jordan, and that she failed to appear, or to put in any answer to the complaint, and that none of the defendants, except certain infants had appeared or answered, who appeared by guardian ad litem and answered, and the action was referred to a referee, who made a report which was confirmed by the court, and a decree was entered thereupon on the 26th of June, 1875. This decree states that Christopher Jordan (the plaintiff in the partition suit) is entitled to one undivided one-tenth part of the premises, and Elizabeth Jordan (the now plaintiff) to an inchoate right of dower in the one undivided one-tenth of said premises, and the decree provides that after the payment of certain sums for costs and debts, the referee pay to the plaintiff, Christopher Jordan, and Elizabeth Jordan, one-tenth thereof.”

This, we suppose, refers to the referee who was, by the said decree, directed to make a sale of the said premises under the decree which was entered June 26, 1875. It seems that the first decree was opened or set aside in September, 1875, in order to bring in new parties to the action in place of some who had died pendente Ute leaving minor children, and by the order vacating first judgment any or all of the defendants were permitted to serve answer. A supplemental complaint was filed, and certain of the defendants put in answer, and a guardian was appointed for the infant defendants who put in the usual general answer, but Elizabeth Jordan did not appear or answer. The answer of the adults to the supplemental complaint denies none of the allegations of the complaint; a second reference then took place to the same or a new referee who found, among other things, that the said Christopher Jordan, before the commencement of the partition suit, “procured, in due form of law, an absolute decree of divorce, dissolving the marriage contract between the said plaintiff and said Elizabeth Jordan.” The second report of the referee was confirmed March 1, 1876, and says nothing about the right of dower of said Elizabeth.

On the confirmation of the said second report the “ usual decree of partition was made,” which also ordered a sale of the premises, and directs that the referee, on the sale, shall execute a deed, and- the purchaser shall be let into possession on production of the said referee’s deed.

The counsel for the defendant then put in evidence the deed of the referee on the sale in partition, which purports to convey the whole premises described in the complaint in this action to the defendant. The deed recited the judgment and decree in the partition suit and the order directing the referee to execute the deed. It appeared that, after the sale in partition, Sarah B. Gaskins, one of the defendants in that suit, and Elizabeth Jordan (the now plaintiff) made a motion to set aside the sale in partition, and to order a resale.

This motion was heard at a special term of this court, on the 3d day of August, 1876, and appears to have been founded upon the judgment roll and all the papers in the partition suit, and, also, upon the affidavits of Sarah B. Gaskins and said Elizabeth Jordan, and the n ow plaintiff’s attorney. What the grounds of the said motion were, it does not precisely appear, but, among other things, it would seem that the plaintiff in this suit still claimed a right of dower in the premises, and asked some kind of relief as to herself, founded on that circumstance; Van Epps, the defendant in this suit, appeared by his counsel, and his affidavit was read in opposition to that motion, and the motion to set aside the sale and for a resale was denied, and the referee’s report of sale was confirmed.

The plaintiff’s counsel, so far as we understand his position in reference to the decree and sale in partition, seems to claim that the plaintiff’s right of dower in the premises was not contested or litigated in the partition case, and could not be, and that “ a sale in partition does not cut off or affect a widow’s dower, unless she consents, or is paid her dower interest as provided by the statute.” We do not understand such to be the law ; a brief reference to the statutes relating to the partition of real estate, clearly shows, in our opinion, that a woman whose dower has not been admeasured may be made a party defendant in such an action. It is expressly provided in 2 Revised Statutes (318, p. 412, secs. 5, 6) that she may be made a party to the partition. She may appear and answer on account of her interest, whether “ such interest be present and vested or contingent” (Id., sec. 16). We assume that the sale in this case was made upon the report of a referee and without the appointment of any commissioner.

The effect of the sale is declared by the Revised Statutes (2 R. S., pp. 377, sec. 62), which provides that the sale shall be a bar, both in law and equity, against all persons interested in such premises in any way, who shall have been named as parties in the said proceedings, and against all other persons claiming from such parties or either of them.

That it was intended that a sale under a judgment in partition should cut off an inchoate right of dower, is apparent from the provisions of chapter 177, of the act of 1840, entitled “An act for the better securing the interests of married women in lands sold under judgments or decree in partition.” Section 1 of that act provides, that in all cases of sales under judgment or decree in partition, where it shall appear that any married woman has an inchoate right of dower in any lands divided or sold, or that any person has any vested or contingent future right or estate in such lands, it shall be the duty of the court under whose judgment or decree such sale is made to ascertain and settle the proportional value of such inchoate, contingent or vested right or estate according to the principles of law applicable to annuities and survivorship and to direct such proportion of the proceeds of the sale to be invested, secured or paid over in such manner as shall be judged best to secure and protect the right and interests of the parties.”

From the statement of the judgment roll in partition which appears in the case, it seems that the right of the now plaintiff, Elizabeth Jordan, was admitted in the partition suit, and it does not appear upon what ground the decree omitted to provide for an ascertainment of the value of that right, whether by virtue of a release to her husband of such right, or' by reason of the fact of such decree of divorce found by the referee. If it proceeded upon the latter ground the omission of the court to provide for the ascertainment of the value of such inchoate right of dower, under the act of 1840, was probably error, in respect to which the said Elizabeth might have had redress by an appeal from the judgment, inasmuch as it does not appear that there was any issue in the case under which the decree of divorce was admissible in evidence, and it is possible, from the statements contained in the bill of exceptions, that this was one of the grounds on which the now plaintiff moved to set aside the sale in the partition suit. But, however this may be in fact the judgment for a sale in the partition suit was not void, but should, if erroneous, have been corrected on appeal.

A judgment rendered by a court having power, lawfully conferred, to deal with the general subject involved in the action, and having jurisdiction of the parties, although against the facts or without the facts to sustain it, is not void, as rendered without jurisdiction, and cannot be questioned collaterally (Hunt agt. Hunt, 72 N. Y., 217; Jenkins agt. Fahey, 73 N. Y. 355).

A purchaser under a sale in partition is protected against all irregularities in the judgment, or in the proceedings upon which it was founded, which do not affect the jurisdiction of the court over the subject-matter or the parties (Alvord agt. Beach, 5 All., 451; Jenkins agt. Fahey, 73 N. Y., 355).

In this case the supreme court had general jurisdiction of the subject-matter, and by its process obtained jurisdiction of the person of the plaintiff, and we think, within the meaning of the statutes before referred to and the cases above cited, the defendant acquired a valid title to the premises by the sale on the judgment in partition and the conveyance to him on such sale.

The judgment of the county court and the order refusing a new trial are affirmed.  