Browning et al. v. Smith et al.

defect of parties seems to have been made in the court below."

In support of this doctrine we also cite: Atkinson v. Mott, 102 Ind. 431; Lee v. Basey, 85 Ind. 543.

In Cord v. Hirsch, 17 Wis. 415, it is also held that the objection that the party in whom is the equity of redemption of mortgaged premises is not made a party to the foreclosure suit, must be taken by demurrer or answer, or it is waived; and on p. 421 it is said: "Such waiver is an abandonment of every objection or

*

advantage of objection arising upon that ground equivalent to a release of errors or a formal admission of record by the defendants that the parties before the court are the proper parties and all the necessary parties to a complete and formal adjudication. It is as if the Legislature had declared that henceforth it shall be deemed there is no defect of parties."

In Baker v. Hawkins, 29 Wis. 576, one Hawkins was shown by the complaint to be the owner of the property and was omitted as a defendant to the foreclosure suit. The court held the same doctrine and refused to reverse the case on the appeal of those who were parties, and cites Story, Daniell's Ch., and English authority, and N. Y. Chancery practice, showing the rule to be the same independent of statutory enactment. The Wisconsin, New York, and Indiana statutes simply declare what was already the rule. We cite to the same effect Taylor v. Collins, 51 Wis. 123.

In Williams v. Meeker, 29 Iowa, 292, it is said: A person claiming an interest in mortgaged premises, who is joined as a defendant in a proceeding to foreclose the mortgage can not object that the mortgagors are not served or in court; and, on p. 294, that "defendant failed to show any title or interest in the lands to sup

port his claim. closure."

Browning et al. v. Smith et al.

He can not object to the fore

In Semple v. Lee, 13 Iowa, 304, it is claimed that one Lee et ux. were necessary defendants. The court say, on p. 305: "It is a sufficient answer that Lee and wife do not complain. As between the complainant and the mortgagors the judgment is good. If Lee and wife do not complain, no other person or party can do so for them."

The case of Davis v. Bechstein, 69 N. Y. 440, holds that defect of parties must be taken by demurrer or answer, or it is waived.

All the authorities, both in and out of the code States, sustain this rule.

Bouvier, under "Waiver," says: "In practice it is required of every one to take advantage of his rights at a proper time, and neglecting to do so will be considered. as a waiver."

The case of Reid v. Mitchell, 93 Ind. 469 on pages 472, 473, holds that "Where it is sought to impeach or vacate the record of a judgment by the allegation of facts not apparent on its face but wholly dehors the record, such an attack upon the record of a judgment is a collateral attack. We need hardly add, nor cite authorities that the record of a judgment can not be collaterally attacked where it appears, that all the parties were before the court when the judgment was rendered, a judgment, regular and legal upon its face, is absolutely conclusive between the parties thereto, until reversed or set aside on a direct appeal."

In Earle v. Earle, 91 Ind., 27 on p. 42, it is said: "The general and correct rule, is, that a judgment by

a court of competent jurisdiction is not void, unless the thing lacking, or making it so, is apparent upon the face of the record. If the infirmity do not so appear, the judgment is not void, but voidable, *and is bind

Browning et al. v. Smith et al.

ing upon the parties to it, as against a strictly collateral attack."

In Dwiggins v. Cook, 71 Ind. 579, the court holds that "In a collateral suit, the validity of a judgment can not be called in question, because a necessary party was omitted in such suit."

In Harman v. Moore, 112 Ind. 221 (222), the rule is thus stated: "Where the record of a court of general jurisdiction, either affirmatively or by the presumptions which attach to it, shows that a judgment has been rendered against a party over whom the court had acquired jurisdiction, any attack, the sole purpose of which is to have the judgment declared void, by showing matters dehors the record, is a collateral attack and can not be made by a party to the judgment."

In Lantz v. Maffett, 102 Ind. 23, the court said: "Where it appears on the face of the record that the court had jurisdiction, the judgment can not be impeached collaterally. If the court had jurisdiction, its judgment, however erroneous, is not void, and if not void, it is not vulnerable to a collateral attack. It seems clear that the face of the record discloses a case in which the court had jurisdiction, the judgment will repel all collateral attacks. judgment rendered by a court having general jurisdiction will be upheld against a collateral attack unless it appears on the face of the record to be void."

A

The court said, in Smith v. Hess, 91 Ind. 424, that the general and correct rule is that a judgment by a court of competent jurisdictiion is not void unless the thing lacking or making it so is apparent on the face of the record. If the infirmity do not so appear, the judgment is not void but voidable, is binding upon third parties and the parties to it as against a collateral attack.

Browning et al. v. Smith et al.

We also cite, in this connection, Woolery v. Grayson, 110 Ind. 149.

Where there is jurisdiction, the parties are bound by all orders, judgments and decrees made in the cause. Meikel v. Meikel, supra.

"There can be no judicial inspection behind the judgment save by appellate power." Anderson v. Wilson, 100 Ind. 403 (407).

These rules, in our opinion, are applicable to, and conclusive of, the questions involved in the case at bar.

Browning & Sloan were made parties to the McWhinney suit, and were there challenged to assert their rights. They remained silent as to any judgment lien they might possess, when it was their duty to speak. Res judicata applies to everything that was determined in the original suit, and to everything that might have been therein adjusted.

The case of Abbott v. Union Mut. Life Ins. Co., 127 Ind. 70, is adduced as authority against the view herein expressed, and seems to be the hope and reliance of the appellants for the reversal of this cause. That case contains several features quite analogous to the one under consideration. The land in controversy in the Abbott case was owned by Kelley, who executed two mortgages on the same, one to Abbott and the other to the Union Mutual Life Insurance Company. One Huddleson acquired a tax title of the property and foreclosed it in an action against the mortgagees, Abbott and the insurance company, and against one Knight, whose interest was nowhere disclosed. Neither Kelley nor his heirs were parties. A sale was had on the Huddleson tax foreclosure, the insurance company becoming the purchaser and receiving the deed. In this opinion the court said that as Kelley was the owner of the land at the time he executed Abbott's mortgage, the presumption is that he still

Browning et al. v. Smith et al.

owned it at the time of his death, and that it descended to his heirs.

The court further said: "It seems to be quite well settled that a sale on a decree of foreclosure, where the owner of the property upon which the lien rests is not. made a party, is void."

Assuming, without deciding, that these appellants acquired title by purchase at a sale on the Browning & Sloan judgment, and have the right to redeem, still they are not entitled to maintain this action to quiet title, for the reason that the tax lien would be yet unsatisfied, and a claim superior to the judgment of Browning & Sloan. Even upon the appellants' theory, the effect of the decree in the McWhinney case was to adjudicate that McWhinney had a tax lien on various lots, including those in controversy here, for $338.53, interest and costs, superior to the lien of the judgment under which the appellants claim, and that the appellees have succeeded, in the proportion in which their several lots were assessed for taxation, to the McWhinney tax lien. It is elemental that before they can ask the interposition of a court of equity in their behalf against such lien-holders, they should either pay, or offer to pay, the superior lien against which they seek to quiet title. Until then, they have no standing in a court of equity. Shannon v. Hay, 106 Ind. 589 (593); Harrison v. Haas, 25 Ind. 281; McWhinney v. Brinker, 64 Ind. 360; Lancaster v. DuHadway, 97 Ind. 565; Rowe v. Peabody, 102 Ind. 198; 2 Am. and Eng. Encyc. of Law, 310.

For these reasons we do not think the court erred in its conclusion of law upon the facts found.

Judgment affirmed.

HACKNEY, J., took no part in this opinion.

Filed May 16, 1894; petition for a rehearing overruled Nov. 13, 1894.