
    William M. House, App'lt, v. John L. Lockwood et al., Resp'ts.
    
    
      (Court of Appeals,
    
    
      Filed February 28, 1893.)
    
    1. Res adjudicata.
    In a former action brought by defendant’s wife against H., the present plaintiff, she claimed that a deed was executed by L. and herself to H., and that at the same time a deed was drawn by H. to her, under an arrangement by which the real estate therein described was to be reconveyed to her, and demanded the delivery of the deed. H. claimed that the last named deed was executed two months after the first and was not to be delivered until defendant L. had paid an indebtedness to H; and that the deed to Mrs. L. was delivered by her into H.’s possession for safe keeping. L. had been adjudged a bankrupt on H.’s petition. The referee found ini accordance with the claims of H., and dismissed the complaint. In this action brought by plaintiff for strict foreclosure of the first deed as a mortgage, the facts were found as claimed by Mrs. L., and plaintiff’s complaint was dismissed. Held, no error; that the former judgment was not res adjudicóla,as the_ findings of the referee as to the character of the first deed in the prior action were wholly immaterial and unnecessary, and the question as to that deed was open to litigation upon the trial of this action.
    2. Same—Evidence.
    As plaintiff failed to establish that the deed held by him was a mortgage, the bankruptcy proceedings against L. were wholly unimportant, and any error committed in reference to admitting evidence concerning them became wholly immaterial.
    3. Same.
    Upon the trial of this action defendants were permitted to give evidence, under objection, that they had previously conveyed the house to H., and that he had reconveyed to Mrs. L. Held, no error.
    
      Appeal from judgment of the supreme court, general term, first department, affirming judgment at special term dismissing plaintiff’s complaint upon the merits, and granting affirmative relief to defendants.
    
      Fdiuard G. James and N. Quachenbos, for app’lt;
    
      Austen G. Fox, for resp’ts.
    
      
       Affirming 43 St. Rep., 750.
    
   Earl, J.

J.—On the 7th day of October, 1876, the defendant John L. Lockwood had the title to certain real estate situate in the state of Illinois, but his wife, the other defendant, was the real owner thereof. On that day lie and his wife executed a deed of the property to the plaintiff, and he claims that the deed, although absolute in form, was intended as a mortgage to secure an indebtedness due from Lockwood. Subsequently, on the 7th day of December, the plaintiff and his wife executed a deed of the same real estate to Mrs. Lockwood, which he claims was never delivered. His claim is that the deed was executed at the request of Mr. Lockwood and was not to be delivered until the indebtedness of Lockwood had been discharged. The defendants claim that both deeds were drawn at the same time under an arrangement by which the real estate was to be conveyed to the plaintiff, and by him to Mrs. Lockwood, for the purpose of vesting the legal title to it in her ; that the deed to him was executed in pursuance of that arrangement, and not as a security for any indebtedness due from Mr. Lockwood, and that the deed from the plaintiff and his wife to Mi's. Lockwood was also executed in pursuance of that arrangement and was actually delivered to her, and then by her placed in his possession as her bailee for safe keeping, to be returned to her upon her subsequent demand. Thereafter, on the 29th day of December, 1876, the plaintiff presented a petition to the district court of the United States praying that Lockwood might be adjudged a bankrupt; and such proceedings were had upon that petition that subsequently, on the ÍOth day of January, 1877, Lockwood was adjudged a bankrupt, and on the 23d day of September, 1878, he received a discharge in bankruptcy from all his debts. Subsequently Mrs. Lockwood demanded from the plaintiff the deed left in his possession and he refused to deliver it to her.

Thereafter, in December, 1879, she commenced an action against him to recover the possession of that deed. She annexed a copy of it to her complaint and alleged that she was the owner of the real estate therein described ; that she left the deed with him for safe keeping; that he promised to hold it for her and return it to her wien she requested him so to do; that she had demanded it of him; but he without any cause or right refused to deliver it to her; that the deed had never been recorded and that the record title appeared to be in him ; that there was danger that unless he was restrained by an order of the court he would not record the deed, but would sell or encumber the real estate or dispose of the deed; that she was entitled to the immediate possession of the deed, and that such possession was necessary to secure to her her right and interests in the property; and she prayed judgment for the immediate recovery and possession of the deed and. for such damages as she had sustained by its wrongful detention, and for an injunction restraining the defendant from in any way disposing of the deed or conveying or interfering with' the real estate described therein. The defendant denied the allegations of the complaint, except that Mrs. Lockwood had demanded the deed from him, and alleged that the title to the real estate was in him, and that he was lawfully entitled to have and hold the same as security for the payment of upwards of §3,000; that the real estate had been conveyed to him by Mr. and Mrs. Lockwood by a deed which, although absolute in form, was intended and agreed to be given as security for the payment of the money, and he demanded judgment in his favor that Mrs. Lockwood by a day to be fixed in the judgment pay the amount due him for which the real estate was security and on default thereof that she be debarred and foreclosed of any right, title or interest in the real estate, and that the defendant have such other relief in the action as might be just. The action being at issue was referred to a referee, and he found that the deed of December 7, 1876, had never been delivered to Mrs. Lockwood as alleged in the complaint ; that it was not left by her with House for safe keeping, or for any purpose; that he did not agree to receive the same for and return it to her, and that he did not receive the deed from her at all; that the deed was executed by Mr. and Mrs. House at the time mentioned in the complaint and was retained by him in his possession, and was never delivered to Mrs. Lockwood or to any one else on her behalf; that the property mentioned in the deed had previously to December, 1876, been conveyed by Mr. and Mrs. Lockwood to House, to be held by him as security for certain moneys then owing him or the firm of which he was a member, and that the deed mentioned in the complaint was executed by House and wife for the purpose of delivery to Mrs. Lockwood when the money for which the prior deed was given to secure was paid, and that it was retained by House for such purpose, and was never delivered to her, and thqt the money for which the real estate was secured had never been paid. He found, as conclusion of law, that she was not entitled to recover against him judgment as demanded in the complaint, but that he was entitled to judgment dismissing her complaint. Subsequently, upon the report of the referee, judgment was entered against her in that action, dismissing her complaint. Thereafter, in June, 1883, this action was commenced, and the plaintiff, in his complaint, alleges the execution and delivery to him of the deed of October 7, 1876, and that the deed, although absolute in form, was intended as a mortgage. He also alleges that it was adjudged in the prior action above referred to by Mrs. Lockwood against him, that that deed was executed and delivered to him as security. The defendants deny the material allegations of the complaint and allege that the deed was executed simply for the purpose of transferring the title from Mr. Lockwood to his wife. They also allege, as a defense to the action, the discharge in bankruptcy of Mr. Lockwood from his debts. The action was brought to trial at a special term, and there the plaintiff gave evidence tending to show that he held the deed as security, and, among other evidence, he introduced the judgment record in the prior action of Mrs. Lockwood against him. The defendants proved the discharge in bankruptcy and gave evidence tending to show that the deed was executed by them to the plaintiff in pursuance of the arrangement alleged by them. After hearing the evidence the following questions were framed, under the direction of the court, for submission to a jury:

First. “Was the deed, conveying certain premises in the state of Illinois, dated October 7,1876, and executed by the defendants, John L. Lockwood and Juliet R. Lockwood, his wife, to the plaintiff, William M. House (being the deed described in the complaint), delivered to said House by said Lockwoods, or either of them, as security for the indebtedness, past, present or thereafter to arise, of said John L. Lockwood to said House, or to the firm of S. A. House & Sons ?”

Second. “ Was said deed delivered to said William M. House by the said Lockwoods, or either of them, in order that said House might and should reconvey the premises therein described to said defendant, JulietR. Lockwood.”

The parties subsequently submitted their evidence to the jury, and they answered the first question “ Ho,” and the second question, “Yes.” Thereafter the action was again brought to a hearing at a special term, and the trial judge found, in accordance with the findings of the jury, that the deed of October 7,1876, was not a mortgage; that the real estate was not conveyed to the plaintiff as security for money due from Mr. Lockwood, and that the deed was executed and delivered to the plaintiff for the purpose of transferring the legal title to the real estate through him from Mr. Lockwood to his wife; and he found as conclusions of law that the complaint should be dismissed on the merits and that the defendants were entitled to a decree adjudging that the plaintiff re-convey the real estate to Mrs. Lockwood; and that judgment was entered in pursuance of the findings. That judgment having been affirmed at the general term the plaintiff has appealed to this court. ,

The findings of fact are against the plaintiff, and unless they can be successful!}'" assailed his complaint was properly dismissed upon the merits. He contends that the prior adjudication in the action of Mrs. Lockwood against him is conclusive upon the defendants in this action, and conclusively establishes that he took the deed as security, and that although absolute in form it. is a mortgage. The important matter, therefore, in this case is to determine the force and effect to be given in this action to that prior adjudication. As the defendants claim that Mrs. Lockwood was and is the real owner of the property, they are both bound by whatever was really adjudicated in the prior action. The general doctrine of res adjuclicata is well understood. The rule is founded upon convenience and public policy. Issues which the parties have submitted to a court of competent jurisdiction and had determined are put at rest, and are not to be reopened and re-litigated; and their adjudication is conclusive in all subsequent controversies between them where the same matter comes again directly in question.

But the rule is not always easy of application, and there are qualifications to it which must be carefully noticed. The rule, with its qualifications, is very well stated in the brief of the learned counsel for the appellant in this action, as follows:

“ A judgment does not operate as an estoppel in a subsequent action between the parties as to immaterial or unessential facts, even though put in issue by the pleadings and directly decided. But it is final as to every fact litigated and decided therein, having such a relation to the issue that its determination was necessary to the determination of the issue. Whenever the same question arises between the parties, in whatever form of action, and whether involved directly or collaterally, they are forever precluded from averring and proving the fact to be otherwise.”

And the rule as thus laid down is illustrated and sanctioned in many authorities. Bigelow on Estoppel, 152, etc.; Reynolds v. Stockton, 140 U. S., 254; Jackson v. Wood, 3 Wend., 37 ; S. C., 8 id., 9; Embury v. Conner, 3 N. Y., 511; Sweet v. Tuttle, 14 id., 465; Campbell v. Consalus, 25 id., 613; People v. Johnson, 38 id., 63; Woodgate v. Fleet, 44 id., 1; Hymes v. Estey, 116 id., 501; 27 St. Rep., 555; Lorillard v. Clyde, 122 N. Y., 41; 33 St. Rep., 303; Stannard v. Hubbell, 123 N. Y., 520; 34 St. Rep., 413. In Campbell v. Consalus, there had been an action to procure the cancel-ling of a mortgage as having been paid, and the pleadings therein put in issue the fact but not the amount due, and it was determined therein that the mortgage was not paid, but that the sum of $2,754 was due thereon, and the complaint therein was dismissed. In a subsequent action to foreclose the mortgage, it was held that the adjudication was conclusive upon the parties only of the fact that something was due, but not the amount. • In People v. Johnson, it was held that a judgment was conclusive upon the parties thereto only in respect to the grounds covered by it and the facts necessary to uphold it, and that, although a decree in express terms professes to affirm a particular fact, yet if such 'fact were immaterial to the issue, and the controversy did not turn upon it, the decree will not conclude the parties in reference to such fact; that hence the record of the court in such case cannot be admitted as evidence in a subsequent suit between the parties to establish the fact thus incidentally, but not judicially established and made conclusive upon the parties. In Woodgate v. Fleet, it was held that the parties to a judgment are concluded or estopped thereby only as to the facts or law material to the issue and directly involved in the litigation.

In the prior action all that Mrs. Lockwood claimed was that she was vested with the title to the real estate by the deed of December 7, 1876; that that deed had been delivered to her, and that she had placed it in the possession of Mr. House, as her bailee, for safe keeping, and that he had refused to deliver it to her upon her demand; and the purpose of that action was to compel the delivery of that deed to her. She based no right or claim whatever upon the deed which the - plaintiff is-seeking to foreclose as a mortgage in this action. The nature, purpose and.effect of that deed was wholly immaterial in that action. It was wholly unnecessary for House to make any allegation or proof in reference thereto in that action. Hi's claim there was that the deed of December 7th had never been delivered to Mrs. Lockwood; that she had never been vested with title to the real estate by virtue thereof, and that the deed was not delivered to him as bailee to be kept for her; and the only matter necessary for him to establish in that action was. that the déed had never been delivered to her by him, as claimed by her; and the finding of fact in the report of the referee, as to. the nature and purpose of the prior deed of October 7th, was wholly immaterial and unnecessary. It played no part and served no purpose in the determination of that action, or in the judgment, entered upon the referee’s findings. It was wholly unnecessary for the plaintiff in that action to give any proof in reference to the allegations of the defendant as to the nature and purpose of the prior deed. She could have admitted those allegations to the fullest extent, and yet if .she could have maintained the .allegations in her complaint, that the deed of December 7th was delivered to her for the purpose of vesting title to the real estate in her, and then re-delivered to him for safe keeping, she could have maintained her action. The defendants can defeat this action without giving any evidence of facts which Mrs. Lockwood was required to prove for the maintenance of the prior action.

The litigation there turned upon the character, purpose and effect of the deed of December 7. Here it turned upon the purpose,, character and effect of the deed of October 7. It is quite true that in the prior action it may have been competent for House to give evidence as to the character and purpose of the deed of October 7,, as bearing upon the deed of December 7. But it has never been hold that a judgment is qn estoppel as to all the litigated facts and all the evidence which the one party or the other may choose to-introduce upon the trial of the action, however important such evidence may have been. The estoppel extends to the material facts-which are in issue between the parties to the action, and to such as necessarily bear upon, control and are essential to the adjudication made.

While the referee in the former action found that the deed of October 7th was intended as a mortgage, no relief based upon that finding was awarded, and there was no adjudication in reference-thereto, and no affirmative relief could have been given in reference thereto. In that action to recover possession of the deed of December 7th, the defendant could not, by way of counterclaim, have a foreclosure of a prior mortgage. Code, § 501.

Therefore, the findings of the referee in the prior action, as to the-character of the deed of October 7th, were wholly immaterial and unnecessary, and the question as to that deed was open to litigation upon "the trial of this action, and the conclusion reached upon conflicting evidence is conclusive upon us. The judgment, must, therefore, be affirmed, unless some material error was. committed by the trial judge in his rulings upon questions of evidence.

Upon the trial, the defendants put in evidence the bankruptcy proceedings. Those proceedings were conducted in the United States district court by a lawyer named Fay. The plaintiff claims that he employed Fay to institute and conduct those proceedings, and Mr. Lockwood claims that he was acting as his lawyer. Upon the trial of this action, the defendants were permitted to give-in evidence certain communications, oral and written, made by the-plaintiff to Mr. Fay while engaged in conducting the bankruptcy proceedings.

The plaintiff objected to the evidence of such communications, upon the ground that they were privileged, under § 835 of the-Code; and he now claims that the trial judge committed error in overruling his objection. There are two answers to this allegation of error. The bankruptcy proceedings could only be important in the action, in case the plaintiff succeeded in establishing that the deed held by him was a mortgage to secure the payment of money due him from Mr. Lockwood; and as he failed in that, and it was held that he did not hold the deed as security, the bankruptcy proceedings became wholly unimportant,and any error committed in reference to the evidence of them became wholly immaterial. But if it could be supposed that the evidence received in reference to these communications was in any way harmful to the plaintiff, a further answer is, that it does not conclusively appear that Fay was his attorney. We think the preponderance of the evidence is that he was. acting as the attorney for Lockwood. House did not institute those proceedings for his benefit, or for the benefit of his firm. He and they could gain nothing whatever by them. They were instituted by him as a friend of Lockwood, for Lockwood’s benefit, and carried through for his benefit, and Fay, from beginning to end, was acting as his attorney, the expense to be ultimately paid by him. So, in any aspect of the case, the plaintiff could not claim that there was any error in receiving the evidence objected to.

Upon the trial of the action the defendants were permitted to give evidence, which was objected to by the plaintiff, that they had previously conveyed the same lands to Mr. House, and that he had reconveyed them to Mrs. Lockwood. And it is. claimed that error was committed in the reception of this evidence. Before the admission of this evidence the plaintiff had given some evidence of dealings in this same real estate between the parties. The evidence was competent to show that the plaintiff knew that the real estate, at the time it was conveyed to him, actually belonged to Mrs. Lockwood. She claimed that the deed was executed for the purpose of conveying the title of the real estate through the plaintiff to her, and that if her husband delivered the deed to the plaintiff for security it was so delivered without her knowledge, authority or consent. Therefore, if the plaintiff knew at the time he took this deed, absolute in form, that the land really belonged to Mrs. Lockwood, he could not hold it as against her as security for a debt of her husband. Hence it was important and material for the defendants to show that he knew at the time he took the deed that the land belonged to Mrs. Lockwood. Furthermore, this evidence was competent to show the relations of confidence existing between the parties at that time, and the course of dealing between them in reference to. this same real estate.

The defendants answered separately, and in their answers simply demanded that the complaint be dismissed. The court at special term found the arrangement as to the giving of the deed as claimed by the defendants, and not only dismissed the plaintiff’s complaint but adjudged that the plaintiff should execute a deed of the real estate to Mrs. Lockwood in pursuance of the arrangement alleged in the answer and found by the court. It is now claimed on behalf of the appellant that the court committed error in awarding this affirmative relief to Mrs. Lockwood. The court having found that the deed was not delivered to the plaintiff as security and that it was delivered to him for the purpose of conveying the title through him to Mrs. Lockwood, he could no longer claim to hold the title to the real estate. He has not in any stage of the litigation between these parties claimed to have any right to the real estate except to hold it under the deed as security, and it having been found that he had no right to hold it for that purpose he was equitably bound to convey it to her; and in this equitable action, where all the facts were alleged in the answer, proved upon the trial and found by the judge, we think the court had the power to administer full relief, although it was not specifically prayed for in the answer.

It is said that the plaintiff should not have been compelled to re-convey this real estate, because there was evidence tending to show that Mrs. Lockwood conveyed it to him to keep it away from her creditors. There was no such allegation in any of the •pleadings, and the fact was not found by the trial judge. He found that the sole purpose of conveying it was to vest the title in her. There is some proof that at some time she put the title to this real estate in the name of Mr. House because she expected some trouble from her brother’s creditors, to whom she had become liable by the indorsement of a note for him. But there is no satisfactory evidence that she intended to cheat or defraud those creditors of her brother by vesting the title to this property in Mr. House. Hpon any facts appearing in this case no court of equity would upon that ground refuse to compel Mr. House, in a proper action, or under a proper prayer for relief, to re-convey this property to Mrs. Lockwood.

We are, therefore, of the opinion that the judgment should be affirmed, with costs.

All concur, except Peckham and Maynard, JJ., not voting.  