
    Charles U. Wing, Resp’t, v. Bernardo De La Rionda et al., App’lts.
    
    
      (Court of Appeals,
    
    
      Filed March 1, 1892.)
    
    1. Ejectment—Licensee of mortgagee in possession.
    One who takes possession of premises under a mere license from a mortgagee cannot set up liis possession against a regular foreclosure of the mortgage followed by the claim of right to immediate possession on the part of the purchaser at the foreclosure sale, sustained by the deed of the referee, the licensee proving no title in himself.
    '2. Same—Second trial—Extra allowance.
    On the second trial of an ejectment action had under the privilege given by § 1525 of the Code, the court may grant an extra allowance, notwithstanding one was granted and paid upon the first trial.
    Appeal from judgment of the city court of Brooklyn, general term, affirming judgment entered on a verdict directed for the plaintiff.
    
      0. J. Wells, for app’lts ; Edward M. Shepard, for resp’t
    
      
       Affirming 39 St. Rep., 119.
    
   Peckham, J.

Upon the last appeal in this action we held there was no finding and no uncontradicted evidence proving that Blanco ever accepted the letter of Jackson to him so far as to make a contract between them, or that he went into possession under the contract so formed. We also said that if the orders in the foreclosure suit were void because Blanco had no notice, it would seem that a defense to this action would in that event be made out, even if the defendant did not connect himself with the rights of Blanco. This was upon the theory that the plaintiff in -case the orders in the foreclosure case were entirely void, would in that event fail in showing any legal title in himself because his title was based upon the proceedings in the foreclosure suit which were themselves largely founded upon those orders. We did not -decide or intimate that the orders were void, but on the contrary - we held that upon the facts as then developed they were entirely valid.

We did not decide that in case it were proved that Blanco and -Jackson did make this contract and that Blanco obtained posses■sion by reason of it and expended money upon the real estate, that a failure to give Blanco notice of further proceedings in the foreclosure case would render those -proceedings void and therefore would show a failure of title in the plaintiff. We said in order to raise those questions there must be a proper finding as to the contract and the possession under it and payment By reason of it, or the facts should appear by uncontradicted evidence. In the absence of both we held the questions did not arise.

The defendant now claims lie has proved the writing and acceptance of the letter, possession taken by Blanco by reason of it and the expenditure of money thereafter upon the premises. Ho says therefore that being so in possession Blanco or his representatives were entitled to notice of all further proceedings in the foreclosure action, and that a failure to give such notice was fatal! to the existence of any title to the realty covered by the mortgage foreclosed under such a state of facts.

It is unnecessary to recite the other facts in this case as to the-rights of Wing under the power of attorney from Jackson to him. We are of the opinion that under that instrument Wing had. power to go on with the foreclosure proceedings and sell the property without any further notice to Jackson. The legal title-to the realty never was in Jackson and upon the.sale by Wing all Jackson could haye done was to have called Wing to account for the moneys (if any) realized by him from the sale.

Certainly the regularity of the sale under the foreclosure decree-was in no manner affected by the failure to give notice to Jackson, or to Blanco if he were then in possession of the premises by reason of the letter or contract already spoken of. Wing was acting; under the authority conferred upon him by Jackson himself, anda the court having obtained and retaining jurisdiction over the subject matter in the foreclosure suit and over the parties thereto, had jurisdiction under these circumstances to proceed with the execution of the decree for the sale of the premises without notice to* Jackson or Blanco, if the latter were then in possession. Whatever equity might attach to the possession of Blanco on account, of the failure to give him notice of the foreclosure proceedings-by reason of which Blanco might have a cause of action against Jackson or Wing for damages or for an accounting, such equity did not affect the validity of the proceedings in the foreclosure-suit and consequently did not prevent the purchaser at the foreclosure sale from obtaining the legal title to the premises. Notice-of proceedings conducted in his name was not required to be given. Jackson, for he by'reason of the terms of his appointment of Wing had dispensed with notice of any proceedings which Wing in carrying out that agreement might think proper to take. By-permitting Blanco to take' possession Jackson conveyed to him, no greater, legal right to notice of the proceedings in the foreclosure suit than Jackson himself had. They were both subject to the jurisdiction of the court in the foreclosure suit. The rights, of Blanco being therefore nothing more than equities and not. affecting the legal title transferred to the purchaser at the foreclosure sale, it is clear such equities under the old rules governing the case would have constituted, even in favor of Blanco, no defense to the action of ejectment where the legal title alone prevailed and a court of law gave judgment accordingly. Adams, on Ejectment, p. 44, 4th ed., 1854; Jackson ex dem. Potter v. Sisson, 2 Johns., Cas., 321; Jackson ex dem. Smith v. Pierce, 2. Johns., 221.

In out union of courts and remedies an equitable defense by and in favor of the party defendant may now be proved as against, a plaintiff in ejectment, and as a defense to the legal title. But. where a plaintiff proves a legal title, and the defendant can show nothing but a mere equity in favor of a third person, such as. a-, simple right to an accounting, or some such remedy, with which equity the defendant does not in any manner connect himself as. Interested' therein, so that he could enforce it, then the superior legal title must prevail. It was formerly held that even a superior ■outstanding title in a third person under whom defendant did not, ■claim must, in order to constitute a defense, be subsisting and .available, otherwise merely showing title out of plaintiff was no -defense. Foster v. Joice, 3 Wash. C. C., 498. There is a learned note to Robinson v. Campbell, 3 Wheat., 212, 224, upon the subject of the availability of a defense of title in' a third person not ■connected with defendant, where .plaintiff shows a superior title -to defendant. The writer is evidently of the opinion it does not in all cases make a defense. I think there is no doubt of the correctness of the rule which holds that in an action off ejectment proof of some equitable right or title in a third person with whom the defendant does not connect himself is no defense to a superior legal title in the plaintiff. Den ex dem. Dimon v. Dimon, 5 Hals. (N. J.), 156. The case .of Cagger v. Lansing, 64 N. Y., 417, .seems to be decisive of this question, and that case holds no new doctrine. This is not the case of an assignee of a mortgagee, in possession and defending his title against a third party, such as was the case of Jackson ex dem. Minkler v. Minkler, 10 Johns., 480. In that case the mortgagee conveyed by deed to the defendant subsequent to default in the payment of the mortgage, and the defendant asserted his right as against the lessor of the plaintiff, the ■original mortgagor, while here there is only a taking possession •of the premises by an individual under a mere license from the mortgagee, and such licensee sets up his possession against a regular foreclosure of the mortgage, followed by the claim of the right to the immediate possession on the part of the purchaser at the foreclosure sale, and sustained by the deed off the referee conveying title to him under the mortgage. Opposed to this claim of the-purchaser we find as a defendant one who proves no title in himself, but seeks to show equities existing in a .third party, with whom he in no manner connects himself. This he cannot do.

We have looked through the evidence in the case and find nothing in it which affords the least justification for the claim, that defendant is in any way connected with, or that he succeeds to any rights which may have been possessed by Blanco. Without deciding what those rights were, we think for the reasons above expressed the learned judge was right in directing a verdict for the plaintiff.

Second. There is an appeal from an order granting an extra allowance of costs which we must consider in connection with •this judgment, as the defendant claims there was no warrant of law for granting the allowance. He bases his argument upon the fact that at the end of the first trial of this action the court upon-plaintiff’s application granted an extra allowance which formed part of the judgment that was finally affirmed by this court. The «defendant upon such affirmance took a new trial under the statute, Code of Civil Pro., § 1525, and paid all the costs incurred up to that time, including the extra allowance. He now claims that as he has once paid an extra allowance the court had no power to award another, because but one extra allowance can be granted in an action. The cases cited by the defendant show that, where an extra allowance has been granted the successful party and it has been entered and forms a part of the judgment, when) such judgment is reversed upon appeal or a. new trial granted,, with costs to abide the event, if upon such new trial the same-party again succeeds and again obtains an order for an extra allowance, he can tax the last sum granted, but not the first, although the costs of the former trial were directed by the appellate court, to abide the event of the second trial. These decisions are based upon the general rule that but one extra allowance can be taxed in an action. This we think is proper as to all cases where a new trial is granted for error of law or fact and upon condition of payment of costs or where they are to abide the event.

In the action of ejectment, however, we think a different construction is called for where the new trial is taken as of right and without showing any other ground therefor than the will of the-party, to be exercised upon payment of all costs and damages* other than for rents and profits, or for use and occupation.

In taking a new trial under such circumstances and by virtue-of the statute, the party availing himself of the privilege in effect, commences or causes the commencement of a new action. At, common law there was no termination to the right of either party to an action of ejectment to commence another although judgment had gone against,him in the preceding actions upon the same title. No plea of former recovery could be pleaded in harto the action and the judgment therein conferred no title upon the-party in whose favor it was rendered. Adams on Ejectment, 4th, ed., 1854, p. 420. By ourrevised statutes it was provided that a judgment in ejectment rendered upon a verdict should be conclusive-as to the title established in the action upon the party against, whom it was rendered and against all who claimed under him by title accruing subsequent to the commencement of the- action. 2 E. S., 309, § 36.

It was, however, further provided that a party who was beaten in the ejectment suit might within three years apply to have the-judgment vacated, and upon payment of costs and damages recovered against him the court was directed to vacate the judgment, and grant a new trial. Id., § 37. Sections 1524 and 1525 of the-Code are substantially transcripts of the sections of the revised statutes just quoted. By these provisions the right of a party to-an action of ejectment to- as many trials of the question as he-might choose to indulge in by bringing successive actions, although beaten in all previous ones, was summarily curtailed, for the effect, of a judgment in such action was altered so as to make it conclusive and the party defeated could only obtain one more trial! of the question by paying up all the costs. Thus the new trial taken under the statute was, as I have said, in effect the bringing-of a new action by vacating as of course the old judgment and taking such new trial in the old action instead of bringing another. But the condition upon which such right was to be exercised was-the payment of all the costs incurred up to that time. It seems-to me that when a new trial is taken as of course under this statute,. and. the costs are paid, payment is not to be considered as preventing the granting of another extra allowance when the action comes on for trial again and the same party again succeeds. "We think the court had power to grant this allowance.

It results from these views that the judgment and order should be affirmed, with costs.

All concur.  