This is a writ of entry to recover the possession of five undivided sixth parts of the premises described in the demandant’s count. The defence is, that the tenants are solely seized by virtue of a judgment of this court on a petition for partition, whereupon the demanded premises were set off to them in severalty. The principal objection, made at the tria, of the cause, to the validity of this judgment was, that Ellen A. Preston, the wife of Royal Preston, one of the tenants in com*203mon, was under the age of twenty one years when the judgment was rendered, and that no guardian was appointed for her, as the law requires. It was contended that for this cause the judgment was not merely erroneous, but absolutely void. But the cases cited by the demandant’s counsel do not sustain the doctrine contended for. The decision in Gallatian v. Cunningham, 8 Cow. 365, has no bearing upon it. The point decided in that case was, that the sale by the guardian of a minor, which was set up in that case, was void, or was voidable, and that its validity might be impeached. It is true, that some of the remarks of one of the learned judges who delivered opinions in that, case may seem to support the doctrine maintained by the demandant’s counsel; but these remarks have no authority, beyond the respect due to the dicta of a learned judge, in which, however, we cannot concur, if they are to be understood as laying down the broad principle, that the judgment of a court, where the proceedings are not in all respects conformable to the requisitions of a statute, is void and may be treated as a nullity. We do not, however, understand the learned judge as maintaining any such principle. Such judgments are voidable by writ of error, but not void. Bac. Ab. Infancy and Age, I. 2. Co. Lit. 380 b. The question then is, whether the judgment for partition had been avoided before the conveyance from Preston and his wife to the demandant. Voidable acts by an infant, or matters of record done or suffered by him, can be avoided by none but himself or his privies in blood, and not by privies in estate ; and this right of avoidance is not assignable. Bac. Ab. Infancy and Age, I. 6. Whitlingkam’s case; 8 Co. 43.

It has been argued that the judgment was avoided by the entry on the land by the attorney of Preston and his wife ; and Penofs case, 2 Vent. 30, is cited, in which it was held that a fine levied by a married woman, she being an infant, might be set aside upon motion, because “ perhaps the husband would not suffer the bringing or proceeding a writ of error.” But this reason does not apply to the present case, as the entry, on which the demandant’s counsel relies as an act of avoidance, was authorized by the husband. It cannot therefore be pre* *204sumed that he would not permit a writ of error to oe brought for the same purpose.

In Holford v. Platt, Cro. Jac. 464, it was decided by a majority of the court, that a recovery against an infant, by default, might by the infant be avoided, in another action, by plea. But the ground of the decision was, that he was not entitled to a writ of error. Haughton, J. dissented, being of opinion that he was entitled to a writ of error. In Smith v Rice, II Mass. 507, the tenant relied on a partition made by order of the probate court, and the case was decided on the ground that a writ of error did not lie to the probate court.

These cases, therefore, do not support the doctrine now contended for by the demandant’s counsel, namely, that a party to an erroneous judgment may be allowed to impeach and avoid it by matters in fait; a doctrine clearly opposed by all the au thorities. Co. Lit. 380 b. 1 Rol. Ab. 742. Ailet v. Watless, Style, 246. The doctrine laid down or recognized in the cases cited is, that a party to an erroneous judgment, who is not entitled to a writ of error to reverse it, may avoid it, on motion, or by a plea, in a court of competent jurisdiction. So infants may avoid recognizances and statutes entered into by them, by audita querela. Bac. Ab. Infancy and Age, I. 7. But where a party is entitled to a writ of error to reverse an erroneous judgment, it cannot be avoided in any other way.

But another decisive objection to the demandant’s title is, that Preston and his wife had no right to avoid the judgment of partition. If, instead of entering on the premises, they had brought an action to recover possession, it could not have been maintained against the tenants. Preston and his wife were jointly seized in the right of the wife; but in law they are considered as one person, the wife being, as it were, merged in her husband. He had the right of possession and occupation, and to take the rents and profits to his own use. He had a freehold estate, which he might sell and dispose of, or it might be taken on execution as his property; and the purchaser or execution creditor would have a good title against the wife, during coverture, and against her heirs, if the husband should survive, *205he being tenant by the curtesy. Now it is clear that the partition is valid against the husband.

It was objected, that a parcel of land was included in the partition, to which the tenants in common had no tide But this did not render the partition void, nor indeed voidable. But if it were voidable, it could only be avoided by a writ of error. Preston, therefore, could not maintain an action to recover possession, either in his own name, or by joining with his wife. The judgment is a good bar against him; his right and title vested, by the partition, in the tenants, and they have a good' title to the possession.

Some other objections to the tenants’ title were made at the trial, which were overruled, for reasons which are satisfactory ; and in arguing the exceptions, they were not relied on by the demandant’s counsel. Judgment on the nonsuit.