
    SARAH L. HUDSON, Plaintiff, v. REUBEN SMITH, et al., Defendants.
    I. ESTOPPEL BT RECORD, AND RES ABJTJBIOATA.
    
    1. A judgment in an action brought pursuant to the provisions of § 33, article 3, title 3, chap. 8, part 3, R. S., relative to charging heirs and devizees with the debts of the decedent, to the extent of the estate, interest, and right in the real estate descended to them from, or devised to them by, such decedent, to charge certain real estate with a debt due the plaintiff by a decedent, estops the parties defendant and their privies from thereafter disputing that the decedent had such estate, interest, and right in such real estate, as she was by the complaint in such action alleged, and by the decision thereof, adjudged to have.
    8. A judgment of a court of competent jurisdiction upon any fact, title, or question distinctly put in issue, or directly involved in the suit, is conclusive in any other action between the same parties or their privies, in respect to the same fact, title, or question.
    H. Legal title, effect of implied trust upon; see remarks of the learned judge.
    HI. Subrogation—Right of pa/rty in possession, claiming ownership to pay off a lien and claim a subrogation; see remarks of the learned judge.
    Before Monell, Ch. J., Freedman and Sedgwick, JJ.
    
      Decided June 7, 1875.
    
      Exceptions ordered to be heard at general term.
    The action was to recover possession of a lot of land in this city.
    Prior to May, 1854, Michael Burke was the owner of the lot in question. In that month he mortgaged the lot to one Quackenbush.
    In June, 1855, an action was commenced to foreclose the mortgage, and a judgment of foreclosure and sale was entered December 6, 1855, which judgment was assigned to Mary J. Watson. The premises were sold under the judgment in August, 1858, bid in by, and conveyed to Mrs. Watson.
    It was claimed on the part of the defendants, that the assignment to Mrs. Watson of the judgment, and the conveyance to her on the foreclosure sale, was merely nominal. That the money was furnished by her mother, Mary Lotta, to whom it was claimed the-property—although legally vested in Mrs. Watson— in reality belonged.
    In August, 1859, Mrs. Watson conveyed the premises to Tates, Porterfield & Wells. The deed was-absolute on its face, and was recorded as a conveyance, and not as a mortgage ; but it was executed and delivered under the following circumstances:
    Mrs. Watson applied to Yates, Porterfield & Wells-for a loan, and as security offered a deed of these premises. The loan was made, and the deed taken as security.
    
    In the same month (August, 1859), Isabella Berrand (a daughter of Mrs. Lotta) went to Yates, Porterfield & Wells, expressing dissatisfaction with the conveyance to them, claiming that the property belonged to-Mrs. Lotta, and then and there paid to them a part of the loan ; and subseqently (in June, 1860) paid to them the remainder, and then demanded a conveyance-by them to Mrs. Lotta of the property. Ho conveyance was ever given.
    In 1861 or 1862, Mary J. Watson died intestate and it was claimed that she was the equitable owner of the premises, subject only to her conveyance by way of mortgage to Yates, Porterfield & Wells.
    Upon the death intestate of Mrs. Watson, without issue, the property, or such right and interest as she had, descended or passed to her mother, Mary Lotta (for life), with the reversion to her brother and sister —Robert Lotta and Mrs. Berrand, as her heirs-at-law.
    At and previous to the death of Mrs. Watson, Mrs. Lotta was in possession of the property, and remained in possession until her own death in December, 1864.
    After Mrs. Lotta’s death, Mrs. Berrand had the possession, collected the rents, and exercised general acts of ownership over the property, claiming it as her own.
    At the time of the death of Mrs. Watson she was indebted to Mrs. Hudson, the plaintiff in this action, to recover which she commenced in June, 1869, an action in the supreme court of this state. The action was against Isabella Berrand and Robert Lotta (among ■others) as the heirs-at-law of Mrs. Watson, to enforce payment out of property inherited by them from Mrs. Watson, the debtor.
    The complaint in that action alleged that Mrs. Watson, “at the time of her decease, was seized and possessed in fee of the following real estate, namely,” describing the lot in question. That the" said real ■estate, on the decease of Mrs. Watson, descended to the defendants “ Isabella Berrand and Robert Lotta, as her heirs-at-law.”
    A judgment was demanded against such defendants “as the heirs-at-law of Mary J. Watson,” and “that the plaintiff might have execution thereof, of the before ■described real estate only, and not otherwise, and that as against the plaintiff and as against all persons claiming under the judgment-and execution, the other -defendants be barred of all right, title, and interest in said premises.”
    The summons and complaint in that action were duly served on Mrs. Berrand and Robert Lotta. Mrs. Berrand appeared in the action and answered the complaint. Robert Lotta did not appear. Mrs. Berrand, denied that Mrs. Watson was seized in fee of' the premises, or that it had descended to her and her brother, Robert Lotta, as the heirs-at-law of Mrs. Watson.
    She then set up the said mortgage from Burke to Quackenboss, the suit to foreclose same, and the recovery of a decree therein; and further that Burke requested Mary Lotta, her mother, and the mother of said Mary J. Watson, to purchase said decree, which she consented to do, and did purchase said decree for one thousand dollars ; but that being old and infirm, she delivered said one thousand dollars to said Mary J. Watson, to complete said purchase and take an assignment of said decree to her, said Mary Lotta ; but instead thereof, said Mary J. Watson “ erroneously and inadvertently ” took an assignment to herself in her own name ; that interest was thenceforth, until August, 1858, paid on said decree to said Mary Lotta; that after-wards said Mary Lotta caused said premises to be sold under said decree, and they were bid in by her agent, Mary J. Watson, who “ erroneously and inadvertently” took the title to said premises in her name, but who in her lifetime “ never claimed or pretended to be the real owner thereof, or that she had the same in any other capacity than as agent of, and for the use, and subject to the direction and control of the said Mary Lotta, deceased, and not otherwise.”
    She further alleged that notwithstanding that the premises were conveyed to said Mary J. Watson, the said Mary Lotta, from the date of the sheriff’s deed to Mrs. Watson to the time of her decease, was in possession of the premises, receiving the rents and profits; that Mrs. Lotta died in possession of the premises, leaving a last will, wherein she devised unto her (Mrs. Berrand), all her real and personal estate, under which devise she claimed to be the “ sole, true, and equitable owner of the premises.”
    ¡Neither of the defendants appeared at the trial. The action was tried by the court without a jury, and the following facts and conclusions were made:
    That by a certain indenture dated August 13, 1858, made between James G. Willett, sheriff of the city and county of ¡New York, of the first part, and Mary J. Watson of the second part, the said James 0. Willett, as such sheriff, conveyed to said Mary J. Watson, in fee, the premises described in the complaint, and she thereupon entered into possession thereof, and that said real estate is of the value of five thousand dollars.
    That the father of said Mary J. Watson predeceased her ; that said Mary J. Watson at the time of her decease left no child her surviving, but left her surviving her mother, Mary Lotta, since deceased, and one brother, ¡Robert Lotta, and one sister, Isabella Berrand.
    The following were the conclusions of law :
    I. That said Mary J. Watson, at the time of her decease, was seized and possessed in fee of the premises, described in the complaint.
    II. That said Robert Lotta and Isabella Berrand are-the heirs at-law of the said Mary J. Watson, and said premises descended to them as such heirs-at-law, to each one-half thereof.
    III. That said bond remains unpaid, and that there is now due to the plaintiffs thereon, the sum of three thousand three hundred and fifty-one dollars and sixty-two cents for principal, and eleven hundred and fourteen dollars and thirty-eight cents for interest thereon,, making in all forty-four hundred and sixty-six dollars-
    
      Upon these findings a judgment was entered that the plaintiff have execution thereof, “ out of the real estate in the complaint described, only, and not otherwise ; and that as against the plaintiff, and as against all persons claiming under the judgment and execution the other defendants be barred,” &c.
    Under an execution upon the judgment, the sheriff sold the lot in question, and in August, 1871, conveyed it to Mrs. Hudson, the plaintiff.
    The action was tried by the late chief justice and a jury.
    Upon proof of the facts hereinbefore stated, the court directed a verdict for the defendants.
    The plaintiff excepted.
    Judgment upon the verdict was suspended, and the exceptions directed to be heard in the first instance at the general term.
    
      J. Townshend, for plaintiff.
    
      H. E. Tallmadge, for defendant.
   By the Court.— Monell, Ch. J.

The sheriff’s deed to Mrs. Watson, executed and delivered under the foreclosure judgment of the Burke mortgage, vested her with legal title to the premises. Any equity existing in Mrs. Lotta, arising from her having advanced the money to purchase the judgment, did not, of itself, divest the legal estate from Mrs. Watson (1 B. S. 728, §§ 51, 52), and her subsequent conveyance to Yates, Porterfield & Wells, although intended as a mortgage, vested them with the legal title,' subject only to a defeasance upon establishing the nature of the conveyance.

It is conceded that the conveyance was as a security for a loan. Thus, in effect, the grantees became mortgagees, and the equity of redemption remained in Mrs. Watson, the grantor.

It is possible that Mrs. Lotta, being in possession and claiming to own the property, having paid the loan, had an equitable right to be subrogated to the rights and interests of the mortgagees, and could, irrespective of her claim under the alleged trust existing between herself and Mrs. Watson, have insisted upon payment of the sum by Mrs. Watson ; or could have acquired the rights of the mortagees, as the equitable assignee of the mortgage, and compelled its payment by action of foreclosure.

So again, at any time during the life and -even after the decease of Mrs. Watson, the equity arising under the alleged trust could have been enforced, and the legal estate of Mrs. Watson divested in favor of Mrs. Lotta, who thereupon could have redeemed the premises from the mortgage to Yates Porterfield & Wells.

But at the decease of Mrs. Watson the legal title was still in Yates Porterfield & Wells with the equitable title still in Mrs. Watson. The only right or interest in Mrs. Lotta, was under an unasserted and unrecognized implied, or equitable, trust, or else under some possible right acquired by payment of the loan.

Down, therefore, to the commencement of the present plaintiff’s action in the supreme court, the rights and interest of the several parties were unchanged. Mrs. Watson died, and whatever rights she had passed to her mother and brother and sister, subject of course, if she was the owner, to the payment of her debts. Mrs. Lotta 'was and remained in possession, claiming as owner, until her decease, when all the rights she had passed to Mrs. Berrand, as her devisee.

The theory of the action in the supreme court, was, that Mrs. Watson had seizin in fee, which descended to her heirs-at-law. That theory negated any seizin or other right in Mrs. Lotta, or in Mrs. Berrand, under Mrs. Lotta’s will. The allegation in the complaint was to that effect, and the judgment so determined. Neither Mrs. Lotta, during her life, nor Mrs. Berrand after Mrs.. Lotta’s death, asserted or attempted to assert, any of the equitable rights or interests which it was and is-claimed she possessed. But having been in uninterrupted possession of the premises for some ten or more years, they seem to have deemed it unnecessary to defend their possession against the attempt to obtain payment of Mrs. Watson’s debts out of their alleged inheritance.

The action in the supreme court was prosecuted under the Revised Statutes (2 R. S. 452, § 32), which' provides that the heirs of every person who shall have died intestate . . . shall respectively be liable forth e debts of such person ... to the extent of the estate, interest, and right in the real estate which shall' have descended to them, from . . such person ; and the question which prominently presents itself, is, whether the judgment in that action, and the title made under it, is not conclusive upon Mrs. Berrand, and those claiming under her.

Judgments of courts of competent jurisdiction are-conclusive, as to the parties and privies, as to the subject-matter adjudicated upon ; and such parties are estopped from afterwards litigating the same subject matter, in any form of action whatever.

So that if the seizin of Mrs. Watson, and the inheritance of the estate by Mrs. Berrand and her brother, as the heirs-at-law of Mrs. Watson, were adjudicated in that suit, all the parties are estopped from disputing-the conclusion in any other action.

Thus in Oatram v. Morewood (3 East R. 346), it was held, that if a verdict be found on any fact or title, distinctly put in issue in an action, such verdict may be pleaded by way of estoppel in another action, between the same parties or their privies, in respect to-the same fact or title.

It was necessary in the action to compel the payment of Mrs. Watson’s debts, to establish her seizin of the property, or of some vendable or leviable interest in it. If she had no title or interest, it could not be subject to her debts. The statute provides (2 R. S. 453, § 36), that it shall be incumbent on the creditor seeking to charge any heirs, to show the facts and circumstances therein required to render them liable. And the heir is allowed to take issue upon those facts, and it is only upon its appearing that any lands or tenements have descended to the heir, that such lands can be held for the payment of debts, and to create a descent there must have been a seizin in the person from whom the lands descended.

The statute regulating proceedings against heirs or devisees (2 R. S. 454 § 54) provides that the judgment shall direct the debt to be levied of such real estate as shall appear to have descended, and not otherwise and gives it a preference, as a lien on the real estate descended, to any judgment or decree against the heir personally for any debt or demand in his own right.

This, therefore, seems to me to be a clear case of estoppel by record, shutting out the defense set up in the answer; and estopping Mrs. Berrand and her grantee from claiming title through or under Mrs. Lotta. As to that subject it was fully and directly litigated in the supreme court suit, where the only legitimate inquiry related to the seizin of Mrs. Watson.

Mrs. Berrand contested that question, and claimed title in herself under the will of Mrs. Lotta, setting up substantially the same facts, which she now claims constituted Mrs. Lotta’s equitable title to the premises. That issue was adjudged against her, and in this action the former adjudication must be regarded as res judicata.

One or two citations are sufficient for the principle. In Doty v. Brown (4 N. Y. 71), the general proposition is stated to be that the judgment of a court of competent jurisdiction upon a question directly involved in the suit is conclusive in a second suit between the same parties, depending on the same question, although the subject-matter of the second action be different.

In Castle v. Noyes (14 Id. 329), the action involved the title to personal property. The action was to recover its possession. One Houghton was the common source of title. The plaintiff claimed under a chattel mortgage executed by Houghton, and the defendant under a judgment and execution against Houghton. The defendant attempted to impeach the mortgage, which was met by proof of a former recovery in a suit wherein the defendant was plaintiff, and one Burk was defendant, in which Burk was sued for taking a part of the mortgaged property. Burk took the property as the servant of the mortgagees, and justified under the mortgage. The tona Jides of the mortgage was directly involved and contested in that action, and was sustained by the judgment. The court held, that the judgment was conclusive against the defendant’s title in this action. The court say (p. 331) the issue upon his title is precisely the same in this suit as it was in the suit before the justice.

In this case the judgment establishing the lien upon the lands as the lands of Mrs. Watson, involving as it did, the whole question of her title, as well as the whole question of the defendant’s title, is an effectual estoppel against Mrs. Berrand, estopping her from now setting up any adverse title in herself, arising from the •same facts or circumstances which she had already set up in the former action, and which, in that action, had been determined against her.

In this view the plaintiff was entitled to recover. She had acquired a title under a judgment authorizing the sale of the property. The judgment was against those now claiming adversely to it, and they are es-topped by it.

As the exception to the direction of the learned justice must be sustained, it is not necessary further to inquire whether, independently of the point decided,, the defendants had shown any title whatever in themselves, and, therefore, anything to weaken the plaintiff’s claim under her judgment, which may always be done upon the principle, that in the action of ejectment a defendant may rely to defeat the action upon the weakness of the plaintiff’s title. The evidence of any such right to or interest in the property, was certainly very slight, and probably not sufficient to affect or impair the title which the plaintiff had acquired under her judgment.

The exception to the direction of the court must be sustained, the verdict set aside, and a new trial ordered, with costs to the plaintiff to abide the event.

Freedman and Sedgwick, JJ., concurred.  