
    Harriet Ballou, Resp’t, v. Charlotte Ballou et al., App’lts.
    
    
      (Court of Appeals,
    
    
      Filed October 2, 1888.)
    
    Evidence—Judgment-roll—When admissible against person not party TO THE ACTION.
    William P Ballou,the husband of plaintiff, executed an instrument, which on its face purported to be an absolute deed of certain premises to Charlotte Ballou, the wife of his brother Theodore. It expressed a consideration of $5,000, but was in fact executed upon an agreement between William and Theodore, to which Charlotte was not a party, and as security only for the performance by William of a certain trust created by Theodore in his interest only. She had no knowledge of or interest in any of these things, neither of the arrangement between the brothers, nor of the deed. It was left by William with Theodore, and was not to be delivered to Charlotte or have any effect except in the event of a failure by William to perform the trust aforesaid. It does not appear at any time to have been delivered by him or accepted by Charlotte, but it remained in the possession of Theodore, who, after twelve years, fraudulently put it on record. Nothing remained to be done by William in the execution of the trust aforesaid, and no contingency had arisen or could arise to give the deed any effect or validity. Its record was after the death of William. The premises continued in the possession of William and his son, and after the latter’s death, of his mother, the plaintiff herein, his sole heir. Plaintiff's first knowledge or notice of this deed was the year it was recorded, when she saw it in the possession of Theodore, and she commenced this suit the next year to have it annulled and cancelled. The plaintiff offered in evidence a judgment-roll in an action in the supreme court in which Harriet Ballou, as administratrix of William Ballou, was plaintiff and Theodore P. Ballou was defendant. The validity of the deed assailed in this action was directly involved in the other. Held, that the paper title in Charlotte was obtained through the procurement and the affirmative act of her husband Theodore, and in fraud of the grantor named in the deed conferring such title. That Theodore was the real party in interest, and any evidence competent against him in this action was competent against his wife, who was merely the nominal party. That she was his representative solely, and anything affecting his title in like degree impaired and destroyed the title she held for him. That the judgment was admissible in evidence.
    Appeal from a judgment of the supreme court, general term, fourth department, affirming a judgment in favor of the plaintiff, entered upon the report of a referee.
    The following is the opinion rendered at general term, which is referred to in the opinion of the court of appeals, and from which this appeal is taken.
    
      Follett, J.—This action is brought to set aside two deeds: 1. A deed from William P. Ballou to Charlotte Ballou, dated June 7, 1851, purporting to convey sixty acres of land; fifty of which is known as the Northrup farm and ten of which were purchased of one Francis.
    2. A deed from William P. Ballou and wife to Theodore P. Ballou, dated October 1, 1853. This deed conveys certain lands in the city of Utica, known as the Northern Hotel property, as to which it is conceded to be a valid conveyance. This deed also describes and purports to convey the sixty acres described in the first deed, and it is claimed that as to this parcel, the deed is a forgery.
    Theodore P. Ballou and Charlotte Ballou are husband and wife, and it appears from the evidence that she had no knowledge of the transactions involved in this issue and was but a passive instrument in the hands of her husband.
    It is not claimed that William P. Ballou acquired from Charlotte any interest in the land between the dates of the two deeds. These deeds seem to be utterly inconsistent, and at war with each other. The effect of each, as evidence is to destroy the other. No reasonable explanation of or excuse for the second deed is given, if the first was a valid and subsisting one. Nor is it seriously claimed that the second deed can stand if the first falls.
    The referee found that the first deed was given to secure the performance by William- P. Ballou of a secret trust reposed in him by Theodore P., that the trust had been performed and that the deed rested on no other consideration. The second deed was found to be a forgery. From the judgment entered upon this report the defendants appeal.
    While we can see nothing in the case that would lead us to disturb, but much that would induce us to confirm the findings of the referee upon those two controlling issues of fact, we shall not, for reasons shortly to be stated, enter upon a critical examination of the evidence bearing upon those issues.
    It nowhere appears that the case contains all of the evidence, or all bearing on the findings sought to be reviewed-on the ground that they are not sustained by the evidence. When it does not so appear, this court must assume that the evidence was sufficient to sustain the findings of fact. Dalzell v. Raw, 1 T. & C., addenda, 4; Beard v. Yates, id., 21; Perrine v. Hotchkins, 2 T. & C., 370, 374, affirmed 59 N. Y., 649; Parsons v. Coburn, 2 T. & C., 324, 329.
    Such is the rule on motions for a new trial upon the ground that a verdict is contrary to the evidence. Cheney v. N. Y. C. and H. R. R. R. Co., 16 Hun, 415.
    Under the old Code it was held (Perkins v. Hill, 56 N. Y., 87), that where exceptions were taken to the findings of fact, the court would assume that all the evidence tending to sustain them was contained in the case. But no exceptions were taken to the findings of fact by either defendant.
    
      Under the present Code, upon the trial of an action before the court, or a referee, an exception cannot be taken to a finding of fact (Code Civ. Pro., § 992), unless there is no evidence tending to sustain it, when it becomes a ruling upon a question of law, and may be excepted to. Code Civ. Pro., § 993; Mead v. Smith, 3 N. Y. Civil Pro. R., 171; S. C., less fully reported, 28 Hun, 639; Sickels v. Flanagan, 79 N. Y., 224.
    When requests to find are preferred, pursuant to section 1023, Code Civil Procedure, and the court or a referee refuses to pass upon them, the refusal becomes a question of law and may be excepted to under section 993, Code Civil Procedure.
    Charlotte Ballou preferred fifty-two requests to find facts, and seventy requests to find conclusions of law; all of which were passed upon by the referee.
    Theodore P. Ballou preferred between twenty and thirty requests, which do not appear to have been directly passed upon, though they may have been in effect in the report and in the findings made and refused, upon the request of Charlotte. Theodore P. Ballou excepted generally to the refusal of the referee to pass upon each and all of his requests, but he does not, on this appeal, point out in what respect he is prejudiced by the failure of the referee to pass upon them, and it is therefore unnecessary to enter into an examination of them. James v. Cowing, 82 N. Y., 449.
    No exceptions having been taken to the findings of fact under section 993 Code Civ. Pro., this court cannot reverse them upon the theory that there is no evidence to sustain them; and the case not showing that it contains all of the evidence, or all of the evidence bearing upon the findings sought to be reviewed, this court cannot review the findings upon the theory that they are against the weight of evidence.
    Each of the defendants excepted to all of the referee’s conclusions of law, except the first, to which neither excepted.
    The only exceptions presented by this appeal for review, are those to the conclusions of law and those taken during the trial of the case. This being so, an extended and critical review of the evidence, is unnecessary, and only such portions of it will be referred to as may be necessary to present the questions under consideration.
    It is conceded by all of the parties to this action, that prior to 1842, William P. Ballou was the owner of the entire legal estate in the land in question, subject, however, to the equit,able right of Theodore P. Ballou, under the contract of 1836, to have two-thirds of the fifty acres conveyed to him or to his appointee. Theodore P. Ballou had no interest in the adjoining twenty acres before, and ten acres after partition, purchased of Francis.
    The plaintiff claims that in 1842, the equitable interest of Theodore P. Ballou was extinguished by a contract (the consideration for which was the deed of June 20; 1842) executed between the brothers at about the date of this deed. The plaintiff was permitted to testify to two conversations between the brothers, which resulted in the deed and contract. She was also permitted to testify that Theodore*P. executed and delivered to her husband a contract in writing releasing all of his interest in the farm, which contract remained in the possession of her husband until his death; and after-wards in her possession until 1859, when she handed it, in a bundle with other papers, to Theodore P. Ballou, to enable him to collect damages for her from the state. This evidence was objected to by both defendants, on the ground that it was inadmissible under section 829 of the Code.
    The evidence discloses that Harriet Ballou was not a participant in the conversation which she narrated. Neither is she a party to the deed of June 20, 1842, or to the contract claimed to have been given in consideration of the deed, and which resulted from the conversations narrated. This rendered her competent under Cary v. White, 59 N. Y., 336.
    But admitting the evidence to have been incompetent, it is difficult to see how William P. Ballou was prejudiced by this evidence, because he alleges in his answer that Charlotte Ballou (not himself) is the owner of the premises, under the deed of June 7, 1851. The referee found that this contract was executed as testified to by the plaintiff. This finding Charlotte Ballou does not object to.
    It is stated in this point “this finding Charlotte does* not ask the court to disturb, nor does the plaintiff.” So it is quite immaterial whether the evidence was competent or incompetent, as against her. Neither is it material to examine with care the ruling of the referee in limiting the •extent of the_ denial of Theodore P. Ballou of this conversation. At folio 529, it seems that the, referee refused to permit Theodore P. Ballou to deny the evidence of Harriet Ballou upon the ground that he was,incompetent to testify under section 892 of the Code.
    But immediately afterwards the case shows that the witness was permitted to give a full and complete denial of the evidence of Harriet Ballou. And at folio 548 he denied having received, in 3859, the contract from her. We think there was no error in the referee’s ruling upon the admissibility of evidence bearing upon the alleged contract of 1842.
    The important question of fact in this case was, whether the deed of June 7, 1851, to Charlotte Ballou was executed with intent to convey the absolute title to her, and if so executed, was it delivered ?
    Harriet Ballou did not join with her husband in this deed.
    As before stated, whether the finding upon this question is sustained by the evidence, is not before this court, and it is only important to consider whether incompetent evidence was received or competent evidence was excluded, to the injury of Charlotte Ballou. It was offered to be shown in behalf of Charlotte, by her husband, upon what consideration and under what circumstances this deed was given. It was conceded that this evidence involved personal transactions with the'plaintiff’s husband, under whom and through her son, she claimed the land. •
    Charlotte Ballou, in her answer, alleges that her husband was the equitable owner of these premises, and that under an agreement between William P. and her husband, the land was to be conveyed to whoever the husband might appoint, and that under this agreement her husband designated her. This brings the husband within the prohibition of section 829, Code of Civil Procedure: “A person from, through or under whom such a party or interested person derives his interest or title by assignment or otherwise, shall not be examined, etc.”
    The wife derived her interest from her husband, by his designation of her as the grantee. Her interest is as clearly derived from her husband as it' would have been had he executed an assignment in writing to her, and thereby directed William P. to convey to her.
    The argument in behalf of Charlotte that because the referee found the interest and power of appointment of her husband under the agreement of September 28, 1836, had. been extinguished by the lost contract of 1842, therefore the husband was a competent witness for the wife, notwithstanding section 829, Code Civil Procedure, is fallacious. The competency of Theodore P. Ballou as a witness had to be determined by the claims and position of the parties as they stood at the time the evidence was offered; and the fact that the referee subsequently decided that-Theodore P. had no interests, in no way affects the question of competency.
    Charlotte maintained the position then, and down to the close of the trial, that she derived her interest from her husband under the agreement of September 28, 1836, as it. appears from her fifteenth request to find.
    In 1850 the state took part of the farm in question for enlarging the Erie canal. In 1858 (subsequent to the death of William P. Ballou) the son and widow of William P. Ballou claimed damages, and August 1, 1859, the appraisers, of canal damages awarded them $674.50. For some-reason the award was not paid, and February 4, 1861, the plaintiff' and her son gave Theodore P. Ballou a power of attorney to collect the award. May 14, 1862 (after the death of the son), Theodore P. Ballou collected from the state the award, and $101.18 interest thereon.
    
      Theodore P. Ballou refusing to pay over the sum collected, this plaintiff, as administratrix of the estates of her husband and son, brought an action against him for the recovery of the amount collected.. Theodore P. Ballou interposed as a defense the- two deeds sought to be set aside by this action. The action was referred, and the referee found in respect to the deed given to Charlotte Ballou as follows: “The only consideration in this deed was the conveyance by Theodore to William of land on a trust, as a security, for the due execution of which trust this deed was executed, to be used as a contingency which never occurred. William P. faithfully discharged all the trusts reposed in him by Theodore in relation to the lands of the latter.”
    The referee found in respect to the deed to Theodore P. Ballou (the second one sought to be set aside in this action) as follows: “On some day subsequent to the death of Theodore Ballou, and prior to January 18, 1873, the defendant added to the description of the premises included in the deed of quit claim, executed to him as above recited, on the 23d day of October, 1853, by William P. and Harriet Ballou, the description embracing the farm in question.” Or, in plain words, that this part of the deed was forged by the defendant. The judgment, was affirmed at general term and by the court of appeals. 78 N. Y., 325. This judgment was, upon this trial, admitted in evidence as against Theodore P. Ballou, but rejected as against Charlotte Ballou. Theodore P. Ballou urges that its admission was error. An inspection of the roll shows that the defenses of Theodore P. in this action are identical with the defenses interposed in the former one; and that the evidence upon which the defenses rested is the same in both actions. It is urged that because the plaintiff in this action was not a personal plaintiff in the former action, that the judgment, had it been the other way, would not have been a bar against her personally, and therefore it is not admissible in evidence or conclusive as to either. The former judgment was not pleaded in the reply served in this action, as a bar to Theodore’s defense, nor was it received as a bar, but as evidence against him.
    When the administrator and heir are different persons,_ a judgment against the administrator does not bind the heir; but the rule is otherwise when the administrator is the sole heir and represents in his own right and person every interest connected with the subject matter of the litigation. Stewart v. Montgomery, 23 Pa. St., 410.
    In Van Slyck v. Newton (10 Hun, 554), a judgment against an assignee under a general assignment declaring that he had no title to certain property, was held binding ■upon him in an action brought by himself and partners to recover the same property, and the judgment was also held to be evidence against the partners.
    The term privity, denotes mutual as well as successive rights, interests or estates in property. Goddard v. Benson, 15 Abb., 191.
    When the former action was begun and terminated, Harriet Ballou was, in her own right, the absolute owner of every interest derivable from her husband and son. She was the widow, she was the heir-at-law, next of kin, personal representative and party in possession. There was a perfect privity in estate and' interest, and she represented in her own right every interest arising from, or affected by the deeds; the validity of which was litigated in the former .action and are sought to be again litigated in this action.
    If an administrator, being the sole heir, should sue for rent and the action be successfully defended under a deed from the ancestor, it -would hardly be contended that the same person, as heir, could maintain a second action to set aside the deed, the validity of which had been established in the first action.
    The validity of these deeds was directly involved in the former action, and that question having been fully litigated "between this plaintiff and Theodore P. Ballou, the judgment-roll was properly received in evidence as against him.
    Theodore P. Ballou (so far as he makes any claim to the land in question), does so under the deed to him of October 1, 1853, from William P. Ballou, from whom the plaintiff ■derives her title. It is very clear that he was not a competent witness as to personal transactions with his brother, tending to sustain this deed.
    It is urged that the referee erred in permitting the witness Hopper, to testify that in 1852, the land which he and William P., owned in common, was divided, and each conveyed to the other, with the knowledge and approval of; Theodore P. This partition related to ten of the sixty acres, which it is alleged that William P. had the year before conveyed to Charlotte (Theodore’s wife). The inference is very strong that Theodore would not have permitted the undivided half to be conveyed to William P , if his wife was then the owner of the land. Of this Charlotte complains, but we think without any just foundation. The evidence discloses that Charlotte Ballou never, so far as is known, did an act, or spoke in reference to this land, or of the transaction .out of which this suit arises.
    The act was done on, and in respect to part of the identical land in question, and it was competent to show it as' against the wife.
    
      If the subsequent acts of Theodore P., inconsistent with the validity of the grant, are not admissible against it, then one may procure a grant to be made to another without consideration from the grantee, without the grantee’s knowledge, and by keeping the matter concealed from the grantee, may consummate the fraud in favor of the grantee by force of the rule, that his acts subsequent to the grant, are not evidence against it. It should be borne in mind that in all those matters Theodore P. was the sole actor, and so far as it appears, without the knowledge of his wife. The conveyances and contracts were procured and written by him. Rules of evidence are for the discovery instead of the suppression of truth.
    The refusal of the referee to allow the defendants, or either of them, to prove the value of the farm, and of the hotel property in 1842, was not error. This precise question was determined when this case was in the court of appeals. 78 N. Y., 329.
    It is urged that the defendants should have been permitted to show the consideration of the deed of June 20, 1842, from William P. Ballou and wife to Theodore P. Ballou, which conveyed the Northern Hotel property. This precise question was put in Ballou v. Ballou (78 N. Y., 329), and was held incompetent, as calling for a personal transaction with William P., Charlotte claiming as the appointee of her husband, it is as incompetent in her favor as in his. No error was committed in refusing to nonsuit.
    The evidence of the plaintiff and of the witness Hopper in connection with the facts inferrable from the papers in the case, and the manner and purpose for which the papers had been used, were sufficient to justify the refusal to dismiss the complaint at the close of the plaintiffs case. Afterwards the case was greatly strengthened by the evidence drawn from Theodore P.
    We think we have considered all of the material exceptions discussed by the appellants on the argument, or in their briefs; which are presented by the case as made up. In point five the defendants say: We submit th'e remainder of the exceptions without argument, asking for them an examination. The case discloses more than two hundred exceptions taken by the defendants on the trial, and to the findings and refusal to find of the referee. This court will not attempt to explore, unguided by counsel, this overgrown thicket of tangled exceptions.
    The judgment, as against both defendants, must be affirmed with costs.
    E D. Matthews, for app’lts; Edwin H. Risley, for resp’t.
    
      
       Affirming 34 Hun, 627, which is mere mem. We publish herewith the opinion of the general term.
    
   Danforth, J.

So far as material to the question presented by this appeal, the record shows that William P. Ballou and Theodore P. Ballou were brothers; that on the 7th of June, 1851, William P. Ballou executed an instrument, which on its face purported to be an absolute deed of premises known in part as the Northrup farm, but also including by description other land, to Charlotte Ballou, the wife of Theodore P. Ballou. It expressed a consideration of $5,000, but was, in fact, executed upon an agreement between William and Theodore P., to which Charlotte was not a party, and as security only for the performance by William of a certain trust created by Theodore P., in his interest only. She had no knowledge of, or interest in, any of these things; neither of the arrangement between the brothers nor of the deed. It was left by William with Theodore P. Ballou, and was not to be delivered to Charlotte, or have any effect, except in the event of a failure by William to perform the trust aforesaid. It does not appear at any time to have been delivered by him to, or accepted by, Charlotte, but, as the referee finds, it remained in the possession of Theodore P., who, in February, 1863, fraudulently put it on record. Nothing remained to be done by William in the execution of the trust aforesaid, and no •contingency had arisen or could arise to give the deed any effect or validity. Its record was' after the death, of William P. Ballou and that of his only son, which last event occurred on the 29th of April, 1862. William P. was in possession of part of the land in 1842, and of that and the residue of it in 1843, and of the whole thenceforth until October, 1854, when he died, leaving a widow, Hannah Ballou, the plaintiff, and an only child, Theodore. The premises continued in their possession until the son diet}, in 1862, leaving his mother, the plaintiff herein, his sole heir. She continued in possession down to, and at the time of, the trial. Her first knowledge or notice of the •deed from William P. to Charlotte was in 1863, when she saw it in the possession of Theodore P.

In April, 1864, she commenced this action against Charlotte only, and in 1878, amended the proceedings so as to bring in Theodore P., her husband, as a defendant. The plaintiff sought to have the deed of 1851, above referred to, and another deed set out in the complaint, annulled and canceled. As to the second deed it was found to be a forgery, and the plaintiff’s prayer as to both granted.

Each defendant appeals. As against Theodore P. Ballou the judgment is so plainly just that nothing need be added to the views expressed by the general term. Charlotte’s case differs in one respect only. She has an exception to evidence received against her objection and concerning which it is strenuously insisted by the appellant’s counsel that the general term erred. It stands on these circumstances: The plaintiff offered in evidence a judgment-roll in an action in the supreme court, in which Harriet Ballou, as administratrix of William P. Ballou, was plaintiff, and Theodore P. Ballou defendant. It was docketed June 8, 1878, and shows a recovery for $1,428.42. It was affirmed in the court of appeals, November, 1879 (78 N. Y., 325). It appears that it was offered in evidence against Theodore P. Ballou alone. It was objected to “as immateral and incompent; 2. That the matters litigated in that action are not within the issues involved in this action, nor pertinent to them; and that litigation was not betweeen the same parties as this action.”

The defendant’s objection was overruled and he excepted. As to him the evidence was clearly relevant, for it related to the matter now in controversy. After giving other evidence, the plaintiff rested, and the defendant Charlotte in her own behalf moved upon various grounds for a dismissal ■of the complaint. The motion was denied. The defendants took the case, gave evidence and defendant Charlotte rested. After some further evidence in behalf of Theodore P., he also rested, and then, I quote from the record, the following occurred: “ Mr. Risley (for plaintiff), produces and offers the judgment-roll in the case of Harriet Ballou, as administratrix, etc., against Theodore P. Pallou.

Defendant Charlotte Ballou objected thereto as immarial, incompetent and not evidence against her. The suit was commenced, tried and determined long after her deed. She was not, nor is a party, to the record.

Defendant Theodore P. Ballou moved to strike it out,, if already in, and objected to its receipt as immaterial, incompetent, and not between the same parties, it being in favor of her administratix, etc., it is not evidence for her individually, and not specially pleaded. The referee overruled the several objections of each defendant and received the judment roll, and each defendant duly exempted.

Plaintiff offered judgment roll in same case in court of appeals, entered October 24, 1879.

Objected to the same as before, on the same grounds by ■defendant Charlotte Ballou, and by the other defendant also on same grounds; and further that that roll is not admissible for any purpose on this - trial; and, if at all, or for any purpose, the only part of the roll that can, in any event, be made evidence is the judgment of affirmance; and that is not necessary or competent because the case is reported in the New York Reports, and the referee can take judicial notice thereof. The referee sustained the objections so far as only to allow the judgment of affirmance, to which each defendant duly excepted.” We think it was not incompetent as to her. Neither the roll nor its contents are set forth in the appeal book, but it seems to be assumed by the learned counsel for both parties that the validity of the two deeds assailed in this action was directly involved in each other. This assumption is most favorable to the appellant, and yet it is not enough to sustain her objection

The evidence given in answer to the plaintiff’s case, tended to show a paper title in Charlotte, but it appeared that it was obtained through the procurement, and the affirmative act of her husband Theodore P., and in fraud of the grantor named in the deed conferring such title; that her title stood on no other consideration and was, in' fact, no other than her husband’s title, and that she was merely an instrument used by him to effect a fraud; that in truth the instrument was not intended to be a deed, but a mortgage, and invalid because of the performance of the condition upon which it was given. Theodore P. was the real party in interest, therefore in the transaction examined m the former suit, and we have no doubt that any evidence competent against him in this action, was competent against his wife, who was merely the nominal party and had only such rights as he had; she was identified in interest with him. According to her answer, she was merely “designated by him to take the conveyance,” and according to the case made, her name put in it by her husband as a mere matter of convenience to himself, or more correctly stated, as a cover. She stands, therefore, as his representative solely, and anything affecting his title in - like degree impairs or destroys the title she holds for him. Carr v. Carr, 52 N. Y., 251; Gilbert v. Deshon, 107 id., 324; 12 N. Y. State Rep., 492. The judgment therefore was admissible in evidence, to be weighed with the other testimony in the case. Her relation to the property and the consequences resulting from that relation were established by other and independent evidence.

As to both defendants, we think the appeal fails, and that the judgment appealed from should be affirmed.

All concur.  