
    STEPHEN S. MARSHALL, Appellant, v. MARIA McGEE and Others, Defendants. DANIEL HURLEY, Respondent.
    
      Motion to vacate a judgment because of fraud — when it ma/y be made by one not a pa/ufy to it — when the application need not be made within two, years from, the filing of the judgment-roll— Code of Civil Procedure, sec. 1290.
    March 7,1872, the plaintiff assigned a bond and mortgage for $450, owned by ' him, to his aunt Mary Sherwood, and received from her the amount due thereon. He did not record the assignment until November 27, 1875. In July, 1874, the plaintiff commenced an action in his own name, and without the knowledge of Miss Sherwood, to foreclose the mortgage, and procuréd therein a judgment under which the premises were sold in August, 1879, to the plaintiff’s attorney for $360, being just the amount due to him for his costs. In October, 1883, Miss Sherwood assigned the bond and mortgage to one Hurley, who thereafter moved for an order setting aside the decree of foreclosure and sale, and permitting the plaintiff to amend his complaint so as to make Hurley a party to the action. The plaintiff opposed the motion, upon the ground that in foreclosing the mortgage he'had acted with the consent and approval of a brother of Miss Sherwood, Miss Sherwood being of feeble mind and incapable of acting alone, and that he had assigned the bond and mortgage to her as collateral to a loan made by her to him:
    
      Meld, that the court properly granted the order sought for.
    That the motion was not an application to set aside a judgment for “error in fact not arising upon the trial,” within the meaning of those terms as used in section 1290 of the Code of Civil Procedure, and was not barred by the fact that more than two years had elapsed since the judgment-roll was filed.
    Appeal from an order made at Special Term, setting aside for fraud the decree of foreclosure and sale entered in the above entitled action and permitting the plaintiff to amend his complaint so as to mate Daniel Hurley a p.arty to the action.
    In 1872 Stephen S. Marshall, the plaintiff, made to Miss Mary Sherwood an assignment, absolute upon its face, of a mortgage of $450; Marshall retained in his possession the said assignment, and did not record the same until 1875. In 1874 Marshall commenced, in his-own name, an action for the foreclosure of said mortgage, neither mating Miss Sherwood a party nor giving her notice of the action.
    In 1878, three years after the entry of the decree of foreclosure and sale, for and in consideration of professional service to him rendered, lie assigned in payment of tbe same tbe decree to Isaiab T. Williams. Williams being substituted as attorney for tbe plaintiff, procured an order of resale to be entered, in pursuance of wbicb tbe premises were sold to said Williams for tbe sum of $360: In October, 1883, Miss Sherwood, for a valuable consideration, duly assigned the mortgage to Daniel Hurley, who, by tbe order above mentioned, has been permitted to defend tbe foreclosure suit.
    Marshall in his affidavit, upon its face averred that there was a secret arrangement with a person whom be asserted was tbe agent of Miss Sherwood, but who is now dead, to tbe effect that tbe said assignment was merely to be collateral security for a loan of $450, tbe full amount of tbe mortgage, and that tbe assignment to Miss Sherwood was not intended to be recorded, although he confessed that tbe assignment was actually recorded shortly after the entry of tbe foreclosure decree, claiming that tbe bond and mortgage bad been assigned as collateral to a loan made to him by Miss Sherwood, and that it was not intended that tbe assignment should be recorded. He also claimed that Miss Sherwood, by reason of her infirmity of mind, was not conscious of tbe act she was doing when she assigned said mortgage to said Hurley, and that be believed it was fraudulently obtained.
    
      I. T. Williams, for tbe appellant.
    
      W. H. Van Cott, for tbe respondent.
   Barnard, P. J.:

Tbe issue made by Hurley with tbe plaintiff is one for a court or jury. On tbe 7th March, 1872, tbe plaintiff, who was then tbe owner of a bond and mortgage for $450, assigned tbe same to one Mary Sherwood. Miss Sherwood then paid tbe amount ,of tbe mortgage to tbe plaintiff. Tbe plaintiff was her nephew and did not record tbe assignment' until tbe 27th November, 1875. In February, 1874, the plaintiff commenced a foreclosure in bis own name, as plaintiff, and without tbe knowledge, as is alleged, of Miss Sherwood, wbicb resulted in a sale by judicial decree in August, 1879, and in a purchase of the propei'ty by plaintiff’s attorney for $360j being tbe precise amount of bis costs in tbe action. Tbe plaintiff, in bis opposing affidavits^ testified that tbe mortgage was assigned by him as collateral security to a loan by Miss Sherwood to him for $é50, and that she is a feeble minded and old lady who acted by her brother, who directed or assented to the foreclosure in plaintiff’s name upon the understanding that the loan was to be repaid out of the money realized from the sale. This brother is dead and the case stands therefore upon the affidavits of Marshall alone. He admits making the assignment and receiving the money. He admits keeping the papers, and that he did not record the assignment. Miss Sherwood subsequently assigned the mortgage to Hurley and he has a right to a trial. Neither he or Miss Sherwood are barred by the judgment as it stands. Neither are parties to it. The case is not one provided for or within section 1290 of the Code. The motion is not one to set aside a judgment “ for error in fact not arising upon the trial,” which is limited to two years from its recovery. An issue of fact not arising upon the trial is one which can be asserted by a party who avers infancy. (Graham’s Pr., 932.) That the judgment thereby is bad although it appears good upon a trial of the issue as made. The section does not include other than parties. There can be no error in fact as to strangers. Even if Hurley or Miss Sherwood had been made defendants and had not been legally served with process, the judgment would not have concluded them in two years under this section. This would be no error in fact, but simply a failure to obtain jurisdiction over them. The attorney who purchased at the sale got no better right than his client had to give. What that was, a trial on the merits only can determine. The order should be affirmed, with costs and disbursements.

Pbatt, J., concurred; Dykman, J-, not sitting.

Order affirmed, with costs.  