
    Thomas Quinn, App'lt, v. Frank B. Jenks et al., Resp’ts.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed July 5, 1895.)
    
    
      1. Former, adjudication—Subject-matter.
    In an action to set aside a sale in foreclosure, to obtain an order for a resale, to set aside a judgment recovered in a former action brought by the defendant against the plaintiff upon a warranty of title and to recover damages for fraud, a judgment in the action for breach of warranty, is, as to all the issues raised therein, res adjudicata between the same parties in the subsequent action to sot aside the foreclosure sale.
    3. Courts—Co-ordinate jurisdiction.
    A court has no authority to vacate a judgment of a court of co-ordinate jurisdiction for fraud, where there is no proof that the defendant in the former action was prevented by any act or contrivance of the plaintiff therein, nor by any accident not involving his own negligence or that of his agents, from prosecuting his defense in that action.
    8. Defense—Ignorance.
    Ignorance of facts constituting a defense does not excuse a party from omitting to make the defense, unless it can be shown that he could not have • acquired the information by diligence.
    4. Mortgagor—Purchaser—Liability.
    The rule that, where a purchaser of a portion of the mortgaged premises agrees to pay the whole mortgage, he is liable to the purchaser of the remainder for the damage resulting from a failure to pay the mortgage and the consequent sale of the whole property,_ and_ that the grantees of the purchasers who have assumed the obligation will also be liable, does not apply, where the party who seeks to enforce the liability has not paid the debt.
    Appeal from a judgment, dismissing the complaint.
    
      A. P. Smith, for app’lt; W. G. Grombie, for resp’ts.
   Merwin, J.

On the 20th Juné, 1837, Jonathan and Eansom Scott, being then the owners of 150 acres of land in the town of Scott, in the county of Cortland, gave a mortgage thereon to the loan commissioners of Cortland county for the sum of $496. The foreclosure of this mortgage and the sale thereof on the 7tli February, 1888, of ñfty-six acres, a portion of the mortgaged premises, then owned by the defendant Frank B.- Jenks, have given occasion to this litigation. The purchaser at the sale was the defendant Frank L. Cuddeback, who thereupon took possession of the property, dispossessing Jenks. The latter thereafter, and on or about April 9, 1888, commenced an action in the supreme court against Thomas Quinn, the plaintiff in the present action, upon his warranty of title to William S. Jenks, the grantor of Frank B. Jenks. The action was tried in October, 1890, at the Cortland circuit, before the court without a jury, and a decision was rendered in favor of the plaintiff therein for the sum of $1,-906.19, the value of the premises at the time of the eviction, with interest and costs. Judgment in accordance with the decision was entered on January 13, 1891. The defendant therein appealed to the general term, where the judgment was affirmed in November, 1891 (Jenks v. Quinn, 61 Hun, 427; 41 St. Rep. 22), and judgment of affirmance was entered on December 4, 1891. An appeal was taken to the court of appeals on the 21st January, 1892, the return being filed March 7, 1892. The court of appeals affirmed the judgment (137 N. Y. 226; 50 St. Rep. 795); and judgment of affirmance was entered on the 13th March, 1893. On or about the 16th March, 1892, the present action was commenced, a notice of pendency being filed on the 21st March, 1893. Its object, as indicated by an amended complaint, verified July 19, 1893, is to set aside the foreclosure sale, and order a resale; set aside the judgments in the case of Jenks v. Quinn, and in the meantime restrain their collection; and recover damages of certain of the defendants. The gravamen of the complaint is fraud and conspiracy in bringing about the sale on the foreclosure of the fifty-six acres, when in fact, as the plaintiff claims, another portion should have been first sold. On the 12th March, 1867, Bansom ' Scott, assuming to be the entire owner of the 150 acres covered by the loan mortgage, conveyed the same to Charles Pardee, subject to the mortgage which Pardee assumed as part of the purchase price. On April 1, 1868, Pardee conveyed about 135-| acres to John Curtin and Daniel Curtin, subject to the mortgage which the Curtins covenanted to pay. At the same date, Pardee by warranty deed conveyed to Qeorge W. Hunt about sixteen acres, being the balance of the 150 acres, except about two acres. Nothing was said in this deed about the loan mortgage. The Curtins gave back to Pardee, on the property conveyed to them, a mortgage dated April 1, 1868, and recorded May 3, 1872, for $2,986.41, part of the purchase money. On October 2, 1871, Daniel Curtin gave to John Curtin a quitclaim deed of fifty-six and a half acres, being that part of the farm on the west side of the highway, and John Curtin deeded to Daniel seventy-nine acres, being that part of the farm on the east side of the highway. These deeds were both recorded on December 11, 1871. In the deed from Daniel to John there was the following clause: “And the party of the first part herein covenants and agrees to save the party of the second part harmless from and pay off and liquidate a certain loan mortgage of four hundred and ninety-six dollars upon the premises herein described.” The party of the first part also covenanted to pay the sum of $1,535.35 on the mortgage to Pardee. In the deed from John to Daniel the party of the first part covenanted to pay on the Pardee mortgage the sum of $1,452.95, and nothing appears to be said about the loan mortgage. . On December 8, 1871, by .warranty deed recorded December 11, 1871, John Curtin conveyed to Thomas Quinn, the present plaintiff, the fifty-six acres, and in this deed the party of the first part covenanted to save the party of the second part harmless from the loan mortgage, and the party of the second part agreed to pay on the Pardee mortgage the sum of $1,384.38. On March 8, 1873, Quinn, by warranty deed recorded February, 1, 1874, conveyed the fifty-six acres to the defendant William S. Jenks, for the consideration, as therein expressed, of $2,200, and the party of the second part agreed to assume and pay on the Pardee mortgage the sum of $1,384.32. On the 9th February, 1874, William S. Jenks gave to Pardee a mortgage on the fifty-six acres for the sum of $1,270.43, and at the same date Daniel Curtin gave to Pardee a mortgage on the seventy-nine acres for the sum of $1,321.57. These two mortgages were given to take up the mortgage given to Pardee in 1868, and covering both pieces, and that was discharged of record on February 25, 1874. The mortgage given by Daniel Curtin was assigned to the defendant William D. Hunt, and foreclosed, and upon the sale on-August 9, 1878, Hunt became the purchaser and went into possession, and so continued until .lie conveyed to the defendant Childs after the sale on the loan mortgage. On February 24, 1881, William S. Jenks, by warranty deed, conveyed the fifty-six acres to the defendant Frank B. Jenks, subject to the mortgage given in 1874 to Pardee, and then held by the defendant Isaiah Ouddeback, which Frank B. Jenks assumed and agreed to pay. This mortgage on the 7th February, 1888, was held by the defendant Frank L. Ouddeback. Upon the sale of 7th February, 1888, the fifty-six acres was first put up, and was bid off by Frank L. Ouddeback for just the amount of the mortgage, interest, and costs, thus releasing entirely the seventy-nine acres. After the sale, and on the same day, William D. Hunt, by warranty deed dated and recorded that day, conveyed to the defendant E. W. Childs the seventy-nine acres, with other property, for the consideration of $3,000, and April 1, 1890, Childs by warranty deed recorded May 27, 1890, conveyed the seventy-nine acre's to the defendants Sweeney, who now own the same. Frank L.' Cuddeback, the purchaser on the sale, conveyed the fifty-six acres to defendant Isaiah Ouddeback, by deed dated June 6, 1890, and recorded June 10, 1890, and he, by warranty deed dated 7th March, 1892, and recorded June 3,1892, conveyed the same to the defendant Anderson, who now owns the same.

In the action against Quinn on the warranty, the defendant therein alleged among other things that by the covenant in the deed from Daniel and John Curtin the seventy-nine acres became primarily charged with the whole of the loan mortgage; that the charge continued down to the time of the sale, and was known to Frank B. Jenks, as well as to Hunt, the owner of the seventy-nine acres; that Jenks was present, and took part in the sale; that the holders of the loan mortgage sold the fifty-six acres first at the request of Hunt and with the consent of Jenks, and without any objection from him, or demand that the seventy-nine acres should be first sold; and that Jenks is estopped from claiming on the warranty. It appeared on the trial that Quinn was duly notified of" the sale, and promised Jenks to be present and protect him as to the fifty-six acres; that he failed to be present on account of sickness ; that the loan commissioner sold the fifty-six acres first, under the mistaken idea that it was first liable. It was held that the failure to sell the piece primarily liable did not make the sale void, and that the purchaser acquired a valid title, and that the failure of Jenks to object at the time of the sale did not estop him from claiming on the covenant, although if he had objected the result would have been different. In the court of appeals, upon the affirmance of the judgment, importance was given to the circumstance that it was not found that Jenks hail any actual knowlddge of the covenant in the deed from Daniel Curtin, or its legal effect; and it was held that Jenks was not charged witli constructive notice from the record of Daniel's deed of the covenant therein. The present action is against the owners of both pieces at the time of the sale, and those to whom conveyances of either part have been made since. The loan commissioners are also parties. It was held by the special term (1) that upon the evidence and proofs in this case the plaintiff is not entitled to any equitable relief in this action ; (2) that at the time of the trial of the action of Frank B. Jenks against the plaintiff, Thomas Quinn, and the procurement of the judgment sought to be set aside by the plaintiff by this action, all the facts set forth by the plaintiff in his complaint herein would have been available and admissible as a defense in said action ; that the plaintiff knew all of said facts at the time, or could have acquired the information by diligent and careful labor in the preparation of said case for trial, but negligently omitted to do so, and persisted upon the defense interposed by him in said action, and prosecuted appeals from the decision rendered therein to the court of appeals, and took no action to enforce his claimed equities until after the title to both parcels of land covered by the loan mortgage had passed by sale and conveyance to other parties, who became purchasers thereof in good faith and for value, without notice of the equities which plaintiff asserts; (3) that the matters presented by the plaintiff’s complaint in this action were passed upon, presented and considered in said action; (4) that there was no fraud practiced on the trial of said action by the plaintiff, Frank B. Jenks, or any other person on his behalf or for him, in the procurement of the said judgments by which the said Thomas Quinn, defendant, was prevented from interposing or availing himself of the facts set forth in the complaint herein as a defense in said action ; (5) that there are no facts proven in this action upon which the foreclosure sale under the loan mortgage should be set aside; (6) there are no facts proven in this action upon which the judgment of Frank B. Jenks v. Thomas Quinn, or the foreclosure of the loan mortgage, ought to be set aside; (7) that this action, being an actian in equity, and Jenks being free from any fraud or intentional injury to the plaintiff, his action cannot lie against any of the defendants herein; (8) that the judgments recovered by Frank B. Jenks against said plaintiff are valid and legal judgments, and the said Frank B. Jenks, plaintiff, is entitled to enforce and collect the same.

There is evidence tending to show that before the sale the defendant Hunt claimed that the fifty-six acres was chargeable with its proportion of the loan mortgage, and that Quinn, representing that piece, had agreed with Hunt to be present at the sale and contribute its share towards the payment of the mortgage. At the time of the sale Quinn was not present. The defendant Hunt, together with Charles I. Hunt, who acted for the owners of the sixteen acres deeded to George W. Hunt in 1868, and defendant Frank L. Cuddeback, who held a subsequent mortgage on the fifty-six acres, raised the money which was paid to the loan commissioners on the sale, each contributing according to the valuation of their respective parcels. There was evidence tending to show that the sale of the fift)'-six acres fiist was not by the request of the defendant Hunt, but at the instance of one of the commissioners, he being misled by an error in a search. It is in effect found that there was no fraud or conspiracy on the part of any of the defendants, and there is evidence sufficient to sustain this view of the case. So far, therefore, as the plaintiff seeks to overturn the judgment in case of Jenks v. Quinn by reason of such alleged fraud or conspiracy, the present action has no basis.

But the plaintiff claims that an essential circumstance in the determination of the case of Jenks v. Quinn was the absence of a finding that Frank B. Jenks had actual notice of the covenant in the deed from Daniel to John Curtin, and that in the present case he has shown the fact of such actual notice.' The evidence, however, on that subject is contradictory, for Jenks testifies that he never had any actual notice of the covenant of Daniel Curtin. Be that as it may, the issue as to such notice was fully raised in the former casa, and Quinn had full opportunity to try that issue. No good reason is presented for trying it over again in this case, within the well-settled rule on that subject. In Mayor, etc. v. Brady, 115 N. Y. 599; 26 St. Rep. 340, it was held, as summarized in the headnote, that: “ No court has authority to vacate and set aside a judgment of a court of co-ordinate jurisdiction upon the ground that the contract upon which it was based was fraudulently obtained, or that there had not been an honest and fair performance thereof, in the absence of proof that the defendant in the action wherein the judgment was obtained was prevented by some act or contrivance of the plaintiff, or by some accident unmixed with negligence of himself dr his agents, from prosecuting his defense therein. The fraud which will authorize one court in a collateral proceeding to revise the judgment of another court is affraud practiced in the procurement or concoction of the judgment, by which the defendant was prevented from availing himself of some defense. Ignorance of,facts constituting a defense does not excuse the omission of a party to make it, or entitle him to the aid of equity, unless it can be shown he could not have acquired the information by diligent and careful labor in preparing the cause for trial.” In view of the law as thus laid down, we are of the opinion that the trial court did not err in holding that no sufficient reason existed for setting aside the judgments in Jenks v. Quinn as invalid.

Assuming those judgments to be valid, is it shown that the •court erred in refusing to set aside the foreclosure sale? The plaintiff, by reason of sickness, was unable to attend the sale, but he took no steps to have any one_ else appear for him. He knew immediately thereafter that the fifty six acres had been sold, and that his liability on the warranty would be enforced, and still he took no steps to set aside the sale until four years afterwards, and until, as the trial court finds, the title of both parcels had passed to purchasers in good faith for value, without notice of plaintiff’s equities. The plaintiff says, that he did not know until just before the commencement of this suit, in March, 1892, that the funds to pay the bid on the sale were raised by contribution from the owners of the other pieces in association with the purchaser Cuddeback. Still, for aught that appears, he might readily, at any time after the sale, by reasonable inquiry have found out all about it. He knew from the start the main fact, which was that the fifty-six acres had been sold,—without right, as he claimed. Instead of attacking the sale, he elected to defend the suit on his warranty.

But the plaintiff claims that the purchasers under William D. Hunt are chargeable with knowledge of the existence of the loan mortgage and of the covenant of Daniel Curtin. To this it is replied that Hunt held under a sale upon the mortgage given to Pardee, which was in renewal or substitution for a purchase-money mortgage that was prior to Daniel Curtin’s covenant, and that equitably, therefore, Hunt’s title was not subject to that covenant. It is also suggested that the deed from Daniel to John Curtin, in which was the covenant referred to, was not a link in the title of the seventy-nine acres, and so the doctrine of constructive notice ■does not apply. Acer v. Westcott, 46 N. Y. 384. The covenant was not referred to in the deed from John to Daniel. There was proof that the purchaser from Hunt, the defendant Childs, had no actual notice of the covenant of Daniel. If there was constructive notice, still he had a right to believe that the sale was legal, as it was finally decided to be, and that it operated to discharge the mortgage. He knew that his grantor advanced his proportion, and he was informed that the other owners had agreed to pay the balance. The trial court was, we think, justified in its conclusion that Childs and his subsequent grantees, the defendants Sweeney, were purchasers in good faith for value, and without notice of plaintiff’s equities. There is also evidence tending to show that the present owner of the fifty-six acres, the defendant Anderson, purchased in good faith, without any knowledge or information that the plaintiff claimed that the sale was as to the purchaser invalid.

As the case stands, we cannot properly say that the court erred in holding that the plaintiff was not entitled to equitable relief. It is not a case where there lias been no change in the situation, as in the case cited of Vilas v. Plattsburgh & M. Railroad Co., 123 N. Y. 440; 34 St. Rep. 67.

It is argued on the part of the appellant that the amount of the recovery in the warranty suit was equitably large, and that relief should be given here. On the contrary, we must assume that the amount there allowed was correct. All the facts in regard to that subject were before the court, or the defendant there had full opportunity to present them. In fact, practically all the material facts did appear, and the conclusion there arrived at cannot be reviewed here.

But the plaintiff claims that in this action lie should recover against some of the defendants damages for the improper sale of the fifty-six acres, either on the ground of fraud and conspiracy or in accordance with a suggestion to be found in the opinion delivered in Jenks v. Quinn, in the court of appeals. As no fraud or conspiracy is found, relief cannot be given on that basis. In the opinion in the court of appeals it is said: “The covenant of Daniel Curtin to pay the mortgage charged him and his land with its payment. If the same obligation devolved upon his grantee, and the benefit of it passed to the defendant, then their grantees may be liable to him upon the facts adjudged,” — citing the case of Wilcox v. Campbell, 106 N. Y. 325; 8 St. Rep. 885. In that case a purchaser of a portion of mortgaged premises, who assumed and agreed to pay as a part of the purchase price the whole mortgage, was held liable to respond in damages to the grantee of the balance of the premises, for his failure to pay the mortgage and the consequent sale of the whole property. The doctrine of principal and surety was applied.

Daniel Curtin is not a party to this action. In the transfer to William D. Hunt, no personal liability was imposed upon him to pay the mortgage in question, nor was there upon his grantees. So that the rule laid down in the WilcoxCase, and the suggestion in Jenks v. Quinn would not seem to apply. Besides, the plaintiff has not yet paid anything on his liability. Halsey v. Reed, 9 Paige, 446. The judgment against him is not proof that the debt is paid or will be. 2 Sedg. Dam. (8th ed.) § 802.

We have thus considered the main questions in the case, and all that seem to call for discussion, and we find no ground upon which we can properly base a reversal. It follows that the judgment must be affirmed.

Judgment affirmed, with costs.  