Samuel Nelson

“ And the better opinion is, that no such question could have been raised by the defendants in that proceeding, if they had sought to invalidate the deed. The most that the court would have been justified in doing, in the usual course of proceeding, would have been to have stayed the suit in partition till the question could have been settled at law. The proceedings in partition are not appropriate for a litigation between parties in respect to the title. ”

“ The title was in Stewart. The decree, therefore, operating simply in rem, could only operate upon such interest or estate of the defendant as was shown in the bill, and properly the subject of the partition against them. Beyond this, it was ineffectual, either as to its direct operation, or when in question collaterally.
Proceedings of this character are allowed to conclude the rights of the absent party, only as it respects property, whether real or personal, involved in the suit, the property of the party proceeded against. They act upon the thing, and bind the party in respect to it. ”

“ The counsel for the plaintiffs, when this record of partition was offered in evidence by the defendants, objected to the admission, on the ground that the decree was void for want of jurisdiction of the court; and also for fraud apparent on the face of the proceedings. The objection was overruled. It appeared that the defendants claim title from Stewart, the grantee of McCall. ”