
    GEORGE H. BEYER, Plaintiff, v. JOHN S. SCHULTZE, Defendant.
    
      Constructive eviction—valid outstanding claim must be shown. Judgment roll in partition, when insufficient to establish outstanding claim. An instrument in a judgment roll must be provedas against one not apart;/, a finding or adjudication is insufficient.
    
    A purchaser at a partition sale takes all the rights and interests of the parties.
    In an action for a breach of a covenant of quiet enjoyment and warranty in a conveyance of real estate by reason of a constructive eviction (assuming a recovery can be had in such case on showing a breach of the covenants) the plaintiff must show a valid outstanding claim to some interest in the land.
    The plaintiff in such an action, to whom the premises had come from the defendant through various mesne conveyances, in order to establish a constructive eviction by reason of an outstanding claim of a widow of a deceased owner of an undivided interest, read in evidence, and relied solely on a judgment in an action of partition, brought by the owner of another undivided interest under the sale in which the defendant, through divers mesne conveyances, derived title to the premises in question. The judgment roll in that action disclosed that a former owner of an undivided interest in the land, had with his wife, conveyed such interest; that the grantee of their grantee was a party defendant to the partition action; that such former owner had died leaving his wife, (his widow) and three children; that one of the children had died not having been married; that by the issues raised, the parties ignored the widow’s title by descent, and did not intend to have any litigation concerning it; that the effect of the adjudication was, that the widow had no estate in the land; that the referee on title found that by an agreement (said to be thereto annexed, but not in fact annexed) between the widow and the grantee of the grantee from such former owner and his wife (the said widow), it was agreed that the said conveyance by said former owner and his wife although absolute on its face was a mortgage; and had previously found that each of the two surviving children of such former owner were seised in equal shares of the interest whereof such owner died seised; and further disclosed that such widow was not a party to the action.
    
      Held, that plaintiff had not by such evidence established an outstanding interest in the land in such widow.
    The fact that an instrument is contained in a judgment roll does not militate against its being proved in evidence against a stranger to the action ; but it must be proved according to the rules of evidence. A mere, finding or even adjudication that such an instrument was executed is insufficient.
    A purchaser at a partition sale, and his grantees, will take and succeed to whatever rights or interests the parties to the action have. So if a party to the action to whom a conveyance absolute on its face has been made, is in fact but a mortgagee, the purchaser and his grantees would succeed to his rights as mortgagee, and being in possession could successfully defend an action of ejectment brought by the mortgagor.
    Before Sedgwick, Ch. J., Freedman and Truax, JJ.
    
      Decided February 14, 1887.
    Plaintiff’s exception, ordered to be heard in first instance at General Term.
    The facts sufficiently appear in the opinion.
    
      
      Charles C. Nadal, attorney, and of counsel for plaintiff, on the questions considered in the opinion argued:
    I.—The defendant claims that Frey had a defence to the ejectment suit in that the purchaser at the partition sale was subrogated to the mortgage held by Jonathan Odell, and that therefore this plaintiff was a mortgagee in possession, and Mrs. Manolt could only have maintained an action to redeem, is unfounded.
    1st. This is a matter of affirmative defence, and is clearly new matter in avoidance. It was not set up in the answer, and plaintiff was not prepared to meet it on the trial. It cannot be raised now. Manolt v. Petrie, 65 How., 206 (Code Civ. Proc., § 500.)
    2d. The holder of the mortgage, Jonathan Odell, was a party to the partition suit. His mortgage was therefore extinguished and paid off.
    3rd. The court of appeals says: “ One who is only a volunteer cannot invoke the aid of subrogation. He must have paid upon request or as surety, or under some compulsion made necessary by the adequate protection of his own rights.” Acer v. Hotchkiss, 97 N. Y., 395, 403; Gans v. Thieme, 93 N. Y., 232.
    The referee paid the mortgage as the representative of the parties to the action. The payment of a mortgage on Mrs. Manolt’s share could not have been necessary for the protection of the rights of any of the other tenants in common. No case can be found in which the doctrine of subrogation has been carried so far.
    4th. But even if Frey were subrogated to that mortgage, it would have been no defence to the ejectment action. Frey was not lawfully in possession of Mrs. Manolt’s and the rule that ejectment cannot be maintained against a mortgagee in possession only applies where the possession is lawful. Madison Ave. Bap. Ch. v. Oliver Street Bap. Ch., 73 N. Y. 83, 94; Russell v. Ely, 2 Black, (U.S.), 575.
    In Chute v. Emmerich, (99 N. Y., 342) which was an action of ejectment, the court held that the defendant was subrogated to a mortgage which he had paid off, but judgment of ejectment was rendered.
    II.—The judgment in the partition asked is competent evidence of the fact that the instrument of July 18, 1854, is a mortgage.
    1st. The defendant derives his title directly from the partition action. He claims under the judgment therein. It is a muniment of his title. He is absolutely bound by it and cannot contradict it. Manolt v. Petrie, 65 How., 206 ; Chatauqua Bk. v. Risley, 4 Den. 480; s. c. 19 N. Y. 369, 377. Barr v. Gratz, 4 Wheat., 213.
    2d. Both the parties to this action derive title from the partition action. Greenleaf on Evidence, §§ 189, 523.
    The judgment in the partition action is therefore competent evidence between the parties hereto to prove any fact determined by that judgment. Campbell v. Hall, 16 N. Y., 575, 579 ; Verplanck v. Van Beuren, 76 N. Y., 247, 257 ; Greenleaf on Evidence, §§ 523, 528.
    And this would be true even if judgment were by default or confession. Brown v. Mayor, 66 N.Y., 385, 390.
    It was only necessary for plaintiff to show that there was an" outstanding life estate in Mrs. Manolt, at the time defendant made his covenants; in doing this plaintiff is not bound to use the same evidence that Mrs. Manolt would have used in the ejectment action against Frey. What might be competent evidence for that purpose in one action, might be incompetent in the other.
    3d. But in any event the judgment in the partition action would have been competent evidence in favor of Mrs. Manolt against Frey, to prove that the instrument of July 18th, 1854, was a mortgage on the ground that it contained the solemn admission of Jonathan Odell, that it was a mortgage. 1 Greenleaf on Evidence, § 527. Booth v. Powers, 56 N. Y., 22, 33.
    Admissions of one claiming or having title to land, are admissible against one claiming under him. Chadwick v. Fonner, 69 N. Y., 404; Jackson v. Bard, 4 J. R. 230 ; Pitts v. Wilder, 1 N. Y., 525; Abeel v. Van Gelder, 36 N. Y., 513 ; Vroom v. King, 36 N. Y., 477 ; Greenleaf on Evidence, vol. 1, §§ 189, 190.
    Frey, and all the successive holders of this land, claimed under the parties to the partition action. One of those parties was Jonathan Odell, who claimed to own, under the instrument of July 18, 1854, the very interest which Mrs. Manolt sought to recover. Odell, in the partition action solemnly admitted that instrument to be a mortgage. The judgment would therefore be competent evidence in favor of Mrs. Manolt, to prove that admission as against Frey, or the defendant herein, or any one else claiming under the partition action.
    4th. The judgment would have been evidence for Mrs. Manolt also on the ground that it is recited in the deeds under which defendant claims. Jackson v. Thompson, 6 Cow., 178.
    5th. Also on the ground that it is a judgment in rem are admissible in favor of strangers. Greenleaf on Evidence, vol. 1, §§ 525, 541, 555.
    6th. Finally the defendant himself has admitted that the instrument of July 18, 1854, was a mortgage.
    The motion to dismiss, assumes and states that it is a mortgage.
    A chain of title having been shown from the partition action to defendant, it will be presumed, in the absence of evidence to the contrary, that defendant claims title under that action. Benson v. Bolles, 8 Wend. 175.
    
      John B. Whiting, attorney, and A. R. Dyett, of counsel for defendant, on the questions considered by the Court, argued:—
    I.—The plaintiff claimed that the deed from George J. Manolt and wife to Mary Lyons was, in fact, a mortgage, and that, therefore, the equity of redemption descended to the children of George J. Manolt, and that when one of these children died intestate and without issue, his mother took a life estate in his share, which was ii, but the plaintiff did not prove that that deed was a mortgage. The judgment roll did not prove this fact, because Elizabeth L. Manolt, the alleged life tenant was not a party to the action, and was not bound by the judgment, and that being so as between her and the other parties thereto, they were not bound. 28 N. Y. 290, 284; 32 N. Y. 455, 356; 19 Wend. 471, 472; Bigelow on Estoppel, 46, 47. The judgment roll was specifically objected to for that reason, and although the court admitted the judgment roll, it was admitted solely for the purpose of proving notice to the defendant that the deed was a mortgage, and not to prove the fact itself.
    II.—If the judgment roll was admissible for any purpose, except for that for which it was admitted; it is well settled that a judgment is res adjudícala and conclusive, as well upon the law as the facts, and the judgment, as already stated, decided as matter of law, that Elizabeth A. Manolt and Lewis J. Manolt, children of George J. Manolt, deceased, were each seized in fee of an undivided of the premises, and no mention is made of any life estate in Elizabeth L. Manolt. This being so, the judgment established that she had no life estate. Burkhead v. Brown, 5 Sandford, 134, pp. 148 (foot), 149, 150; Lawrence v. Houghton, 8 Johns. R. 130; 19 N. Y. 369, at p. 377, last paragraph, cited infra under Point IV.
    HI.—The purchaser of the land under the judgment through whom the defendant derived title, was rightfully in possession, in any event, of and as to the other Ar he acquired the vested remainder, subject to Mrs. Manolt’s life estate, if she had any, and as to that estate, if he did not acquire it as purchaser, he became equitable assignee of the mortgage, Miner v. Beekman, 50 N. Y. foot pp. 344, 345; 25 N. Y. 320; 47 N. Y. 261, at p. 263.
    Mrs. Manolt could not, therefore, maintain ejectment to recover her life estate, for ejectment will not lie against a mortgagee in possession. Miner v. Beekman, 50 N. Y., foot pp. 343, 344; Phyfe v. Reilly, 15 Wend. foot of pp. 253, 254.
    IV.—The plaintiff on the trial claimed that the defendant was bound by this judgment, because he claimed under it. The answer is that the defendant did not claim under the judgment. He did not offer it in evidence ; the plaintiff did, and he objected.( There was no question of his title to the land in fee, except as to a life estate in an undivided twenty-fourth of it. As his title was undisputed, with this exception, there was no reason why he should have recourse to the judgment. Certainly not to establish his title to this life estate. The judgment, as far as it proved anything on this subject, proved the contrary. The plaintiff cited the opinion of Mr. Justice Ikgraham in Manolt v. Petrie (65 How. 206, at p. 209,) but it does not appear by the report of that case which party introduced the judgment roll in evidence. Probably the defendant introduced it herself. Again, the point that the defendant was not bound by that judgment, because the plaintiff was not a party to it, and was not bound, and that estoppels must be mutual, does not appear to have been raised, and the court does not speak of it, and in the case referred to in the opinion (4 Denio, 481; 19 N. Y. 369, 377), the defendant necessarily to prove his title gave in evidence a decree determining an assignment by a judgment debtor to be fraudulent and void.
   By the Court.—Sedgwick, Ch. J.

The action was for damages for the breach of a covenant of quiet enjoyment and of warranty, in a conveyance of real estate made by defendant. It will be assumed that plaintiff showed a right to recover if he showed a breach by defendant. The alleged breach was an eviction by Elizabeth L. Manolt, as owner of a life estate in undivided part of the fee. The eviction was not actual but constructive. The plaintiff had paid certain moneys in buying Mrs. Manolt’s claim and for expenses. An ejectment suit had been begun by Mrs. Manolt against one Frey to whom the plaintiff had conveyed, but did not proceed to judgment, as her claim was bought in by Frey who was reimbursed by plaintiff. The defendant was not notified to defend the action, and therefore the plaintiff was bound to prove on the trial below that Mrs. Manolt was entitled to the interest she claimed. . The only proof on the part of plaintiff was a judgment roll in partition. A grantor, under whom defendant had taken title, was the purchaser at the sale in partition and the referee had conveyed to him. The plaintiff, on the trial below, took the position that the purchaser and his grantees were . bound by the adjudications in the partition action.

The record disclosed, as was proved by defendant here on the trial below, that one George I. Manolt, being seized in fee of A undivided parts of the premises, made a deed, which in form was one of absolute conveyance in fee of his interest, in which his wife, the Elizabeth L. Manolt above named, joined to one Mary Lyon, and that Mary Lyon conveyed, hi a similar manner, to one Odell.

George I. Manolt died, leaving surviving him Elizabeth L. Manolt, his widow, and three children, George T., Elizabeth A. and Lewis J.

Afterwards an owner of another undivided interest began the action of partition referred to.

It is manifest that if the title of Odell were absolute, then Elizabeth L., who, at the time of the conveyance in which she joined had no more than an inchoate right of dower, was not a necessary or proper party to the action of partition. On the other hand if the conveyance were a mortgage and Odell only a mortgagee, and all of the three children Avere living, if she Avere made a party she would represent only a doAver right in a surplus after payment of the mortgage. In fact, however, one of the three children had died, not having been married, and, under the statute, if Elizabeth L. had not absolutely conveyed, she took for her life the estate of the deceased child, which was -A undivided interest. She was not made a defendant. The surviving children, Elizabeth A. and Lewis I., were made defendants.

The complaint averred that the conveyance from George I. "and Elizabeth L., his wife, to Mary Lyon, and from Mary Lyon to Odell had been made and “ that they do not know, are not certainly informed, and cannot state whether the said paper writing, so purporting to be a deed of conveyance by the said George I. Manolt and Elizabeth L., his wife, as grantor therein, is as against the surviving children, heirs at law of the said George I. Manolt, or any of them, valid, binding or effectual in law or in equity, so as to have any operation in respect of the said £ part of the said real estate, etc.; and that the said defendant, Jonathan Odell, is entitled to the equal undivided ■§• part thereof, as representing the share of the said George I. Manolt, in case this court shall adjudicate that the interest of the said George I. Manolt in the said real estate and premises passed to the said Mary Lyon under deed, by virtue of the said paper writing purporting to be a deed of conveyance thereof, hereinabove mentioned, but in case this court shall otherwise determine, then and in such case the defendants, Elizabeth A. Manolt and Lewis I. Manolt, (the surviving children,) are entitled to the said last mentioned equal undivided part of the said real estate and premises in equal moieties, or such other estate and interest therein as this court shall adjudge.”

The answer of the two surviving children alleged they deny that the said paper writing purporting to be a deed of conveyance by the said George I. Manolt and Elizabeth his wife, is as against these defendants or either of them, valid or binding &c., so as to have any operation in respect of, or convey, or transfer any title to the said one-eighth part &c., and upon information and belief that the consideration expressed in the deed of George I. Manolt and Ms wife Elizabeth L., to Mary Lyon, namely $3,000, and no part of it was ever paid; that Odell paid no consideration to Lyon, but took the conveyance thereof in some manner or form in trust for the said Mary Lyon, or for the creditors of said Mary Lyon, and also with notice that the said Mary Lyon had not paid said purchase money, and these defendants claim and insist that the said Jonathan Odell took the conveyance of the said premises subject to any and whatever lien or liens and equities the same was subject to in the hands of the said Mary Lyon ;” that they “ deny that said Jonathan Odell is entitled to the equal undivided one-eighth part as representing the share of the said George I. Manolt,” and they claim and insist that “if it shall be adjudged by the court, that the fee passed from George I. Manolt to Mary Lyon * * then the same is subject to the lien and claim for the amount of the purchase money or consideration expressed “ in the conveyance to Lyon.”

It is evident that the parties ignored the title of Elizabeth L. by descent, and did not intend to have any litigation concerning it. The question related to whether Odell owned the one-eighth, or the two surviving children owned it, without question as to the life estate of Elizabeth L.

The judgment in this was that each of the surviving children was seized in fee simple of one undivided sixteenth part of the premises. The adjudication was in effect that Elizabeth L. Manolt had no estate in this one-eighth. Of course if the plaintiff should concede that she was bound by this judgment, then the interest claimed for her, passed to .the purchaser at the sale in partition. The plaintiff would be forced then to the position that asshe was not a party, the adjudication does not affecf her. There would then be no proof that the conveyance was a mortgage. To prevent this result, a certain finding is resorted to, that was made by the referee in partition. This finding is “ that by the'consent and agreement of the said Jonathan Odell and the said Elizabeth A. Manolt and Lewis I. Manolt, which is hereto annexed, it is agreed that the said conveyance above mentioned by the said George I. Manolt and Elizabeth L. his wife, to the said Mary Lyon, although absolute on its face, was in fact a mortgage on the share of the said George I. Manolt, in the premises above described, to secure the sum of $3,000.” The report also found that there was then due and unpaid upon the said mortgage, for principal and interest, the sum of $6,941.53.

Assuming that this shows that the conveyance in 1854 was a mortgage, and the conveyance of Lyon to Odell in 1854, was an assignment of that mortgage, that, does not tend to disclose in whom the equity of redemption was in 1873.

The finding did not mean to assert that such equity was in Mrs. Manolt; for earlier findings were that George I. Manolt had died leaving his widow Elizabeth L. and three children; that one of the three had died, “ and that the said other two children of the said George I. Manolt aré still living, and are parties defendant in this action, and are each seized in fee simple of one undivided sixteenth of the premises described in the complaint. And as has already been said, the judgment was in accordance with these findings.

Therefore there was no adjudication in favor of a title in Mrs. Manolt, if she were at liberty to use the proceedings in her own behalf. In fact, however, as she was not a party to the action and not bound by its proceeds ings, she could not use them against those that were parties. Remington Paper Co. v. O’Dougherty, et al., 81 N. Y. 476.

It is not necessary to deny that a record of an action may be used by one not a party to it, to establish the existence of a fact, provided the rules of evidence are observed. For example, if, which is not now determined, an agreement of Odell with the surviving children that his interest in the real estate was that of a mortgagee only, was competent evidence against this defendant, that agreement could be put in evidence although it was contained in a judgment-roll. On the other hand, a,n adjudication that he so agreed, would not be competent in favor of one not a party, much less would be a finding of fact that he so agreed, for unless it is an adjudication it is merely hearsay testimony—the declaration of the referee.

In the present case adjudications, merely, are adduced from the judgment-roll. The agreement said to be annexed is not shown in evidence. No original act or declaration of Odell is shown.

H, however, it is supposed that Odell was a mortgagee only, then in equity the purchaser at the sale and his assignees, and among them the plaintiff, would succeed to Odell’s position as mortgagee in possession. The plaintiff had that defence to the ejectment, and omitted to interpose it when he was called upon to defend Frey, to whom he had conveyed. Therefore, while there was no actual eviction there was no constructive eviction, because no right to evict Frey was shown.

The judge below correctly held that no proof had been given that Odell was only mortgagee.

The plaintiff’s exception to the direction of a verdict for defendant is overruled, and defendant is to have judgment on verdict with costs.

Freedman and Ingraham, JJ., concurred.  