
    Terence McCracken, Resp’t, v. William C. Flanagan et al., App’lts.
    
    
      (Court of Appeals,
    
    
      Filed January 30, 1894.)
    
    1. Execution—Void judgment.
    A sale of land on execution, issued upon a void judgment against the owner, in no way affects his title.
    2. Same—Deed—Title.
    A subsequent conveyance by him is just as effectual as though the judgment had never in form been entered.
    3. Same—Notice.
    Notice to the grantee, when he took the conveyance, that the execution purchaser claimed title under the sale, does not operate as an estoppel.
    4. Appeal—Former.
    Where the facts upon the second, are precisely as they were upon the first, trial, the parties are concluded by the decision on the prior appeal.
    Appeal from judgment of the general term of the supreme court in the second judicial department, entered upon an order made February 13, 1893, which affirmed a judgment in favor of plaintiff entered upon a decision of the court on trial at special term.
    The nature of the action and the facts, so far as material, are stated in the opinion.
    
      Thomas J. McKee, for app’lts; Eugene 8. Ives, for resp’t.
    
      
       Affirming 51 St. Rep., 545.
    
   Earl, J.

This is an action of ejectment to recover certain land situated in the county of Westchester. This action has been twice tried. On the first trial there was judgment for the defendants, which was affirmed at the general term. Upon further appeal to the court of appeals it was reversed, and a new trial was granted. The action was again brought to trial before a judge without a jury, and was submitted by both sides upon facts stipulated.

The plaintiff bases his title upon the following facts: Henry Kahle was seized in fee and possessed of the lands on the first day of December, 1867. On the 17th day of May, 1869, he conveyed the land to the plaintiff and Patrick Mc-Cracken. Patrick McCracken died leaving a will by which he devised his interest in the land to the plaintiff, and thus the plaintiff claims to have become the sole owner of the land. The defendants base their claim of title to the land upon the following facts: In January, 1867, an action was commenced in the supreme court by Lawrence Cartan and others against Henry Kahle, for the collection of a debt claimed to be due them from him. In that action a warrant of attachment was issued to the sheriff of Westchester county, who levied upon the land in question. At the sanie time notice of the pendency of the action and of the issuing of a warrant of attachment therein describing the land attached was filed in the office of the clerk of the county of Westchester. Kahle did not appear in that action. The summons was served upon him by publication and mailing, and not personally, without the state, in pursuance of an order granted upon an affidavit, copies of which affidavit and order are found in this record. In May, 1867, judgment was entered in the action against Kahle for upwards of $1,100, and an execution was issued upon that judgment to the sheriff of Westchester county, and in pursuance thereof he sold the land to Lawrence Cartan on the 23d day of July, 1867, and filed his certificate of the sale in the office of the clerk of the county of Westchester, on the 8th day of October, 1867. Thereafter the sheriff executed and delivered to Cartan his deed of the premises bearing date January 25, 1869, and recorded in the office of the register of the county of Westchester on the 18th day of April, 1870. Afterwards Cartan, on the 17th day of July, 1871, conveyed the land to Edward A. Flanagan, and he entered upon and took possession of it. On the 27th day of November, 1871, Flanagan conveyed the land to the defendants in this action, who thereupon entered upon and took possession of it, and have since been in continued and undisputed possession thereof.

Upon the prior appeal to this court the case came to argument in the second division, and its opinion is to be found in 127 N.Y., 493; 40 St. Rep., 180. It was there held that the affidavit upon which was granted the order of publication of the summons in the action of Cartan and others against Kahle, was insufficient to give the judge jurisdiction to make the order; that the judgment entered against Kahle by default, and the deed upon the sale of his property under that judgment were void, and that, therefore, the defendants in this action, claiming under that deed, had no title whatever to the land in dispute.

The facts upon the tidal now under review are precisely the same as they were upon the first trial, and, therefore, the parties are concluded by the prior decision. The1 precise question as to the defendants’ title was there decided which is now involved here. The court having held that the judgment was void, it had vitality for no purpose and could be assailed by any person who had an interest to assail it, or who could be affected by it. The judgment and. the sale under it in no way affected Kahle’s title, and his subsequent conveyance of the land was just as effectual as if the judgment had never in form been entered against him. We do not deem it proper to review the grounds of the former decision, and we rest our judgment thereon. It may be true that the plaintiff took his title to the land with notice of the claim of title made by the defendants and their grantors. But that no tice does not operate as an estoppel against him. He found this land in the ownership, and, as we must assume, in the possession of Kahle, and knowing that the judgment and deed under which the defendants claimed title were void, he had a right to take a conveyance of the land, and he thereby obtained a good title to it.

The further claim is made that the deed from Kahle to the plaintiff and his co-grantee was void because at the time of its execution the land was in the adverse possession of Cartan, the sheriff’s grantee, who claimed title thereto. The difficulty with this contention is that there is nothing in the case to show that at the date of the deed under which the plaintiff claims, Cartan or any other person was in possession of the land, claiming to own the same. The record does not show that the land was in the actual possession of any one until more than two years after the deed, under which the plaintiff claims, was executed by Kahle.

We are, therefore, unable to see the least ground for this appeal, and the judgment should be affirmed, with costs.

All concur. '

Judgment affirmed.  