
    Russell W. Ostrander, App’lt, v. Joseph Hart, Ex’r, et al., Resp’ts.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed January 20, 1892.)
    
    1. Former adjudication—Ejectment.
    Plaintiff claims title under a deed from an assignee in bankruptcy, conveying the interest which Joseph Hart had on July 6, 1878. Defendants claim under a sale on foreclosure of a mortgage given prior to that time. It was claimed that at the time of the foreclosure the mortgage was paid. The sale took place under an agreement by which the bankrupt's wife was to have the property for the costs of foreclosure. An action was thereafter brought to which the bankrupt and his assignee were made parties to set aside the sale, in which the sale was adjudged valid. The asignee did not answer. Held, that such judgment was not a bar to this action. There was no judgment against the assignee, nor in form or effect did it determine the ultimate rights of the assignee.
    53. Same—Appeal.
    An omission by the trial court to find facts claimed by the unsuccessful party to be warranted by the evidence can only be taken advantage of by an exception to a refusal to so find upon request duly made as required by the Code.
    
      Appeal from a judgment of the general term of the supremo court, in the second judicial department, affirming a judgment entered on the decision of the court upon a trial without a jury.
    This was an action of ejectment brought to recover the possession of eight lots of land situate in the village of West Flushing, county of Queens, of the value of $2,000.
    The defendant, Joseph Hart, individually owned the premises-in question on the 6th of July, 1878, when he filed a petition in bankruptcy, and included said lands in his schedule of assets. On the 9th of August following said Hart was duly adjudged a bankrupt, and on the 11th of April, 1879, one Louis F. Post was appointed assignee of his estate. The premises in question were conveyed to the assignee by the register in bankruptcy on or about April 17, 1879. On the 23d of April, 1887, by due course-of procedure in bankruptcy, the interest of Hart in said premises, at the time when his petition was filed was sold to the plaintiff by said assignee for the sum of fifty dollars.
    August 17, 1876, said Hart, who then owned the premises, and Sarah Hart, his wife, executed and delivered to one Sanders a mortgage thereon, collateral to a bond of even date, to secure the-payment of $7,000. Said mortgage was subsequently foreclosed bjr advertisement under the statute in behalf of said Sanders, the data of the first publication of the notice of sale being March 27,1879, and on the 20th of June, 1879, said premises were sold thereunder to Sarah Hart, who afterward' died in possession of the-same, leaving a will by which Joseph Hart was made trustee for the benefit of her children, and authorized to sell her real estate. Hnder this will Joseph Hart, as trustee, on the 16th of February, 1886, sold the lands in question to the defendant Prince, who, through his tenants, was in possession of the same when this action was commenced.
    In February, 1885, said Sanders commenced an action in the-supreme court against Joseph Hart individually, and as executor and trustee under the last will and testament of Sarah Hart, deceased, Louis F. Post, as assignee in bankruptcy of Joseph Hart,, and others, and demanded, as the relief to which he deemed himself entitled, that the affidavits made and recorded in said foreclosure proceedings should be adjudged void and canceled of record; that all the rights of the defendants in said premises-should be foreclosed and the premises sold to pay said mortgage. He based his claim to this relief upon the allegation that at the time of saidstatutory foreclosure he believed he had money enough in his possession belonging to said Joseph Hart to pay said mortgage, which he foreclosed at Hart’s request for Mrs. Hart’s benefit, so that she could bid in the premises, but that he was afterwardscompelled by a judicial proceeding, to which neither Hart nor his wife was a party, to apply said money in another direction. Said Louis F. Post, as assignee, did not answer or appear in said action, although the summons and complaint were personally served upon him. Joseph Hart, both individually and as trustee, served an answer in which he alleged that Sanders duly agreed with Sarah Hart to convey the mortgaged premises to her without charge, or to have the same struck off to her at the sale under the foreclosure proceedings then pending. He made no demand for relief against any co-defendant, but simply asked that the complaint be dismissed, with costs. Ho copy of the answer was ■served on Post.
    Upon the trial of that action, the court found that on the faith ■of the agreement between Sanders and Mrs. Hart she advanced moneys to her husband, and that she acquired rights under the sale that her estate was entitled to hold, although the claim secured by the mortgage was paid. A decree was entered against the plaintiff Sanders in favor of Hart, as trustee, etc., and of his ■children, who appeared by guardian ad litem, “ that the foreclosure proceedings set up in the complaint were regular and valid,. and the plaintiff is not entitled to have the same vacated or set aside ; that the title to the mortgaged premises was duly and regularly vested in Sarah Hart during her lifetime, and that the defendants aforesaid have judgment herein upon the merits against the plaintiff.” The remainder of the judgment was for costs in favor ■of Hart and his children against said Sanders as plaintiff. Ho other relief was granted in favor of or against any party to the action.
    The trial court, after finding the foregoing facts in substance, found as conclusions of law that said decree was a bar to this action ; that Sarah Hart acquired a good title to the premises, and that it is now vested in the defendant Prince; that the sale by Post, as assignee, conveyed no title to the plaintiff, as Joseph Hart had been divested of his interest by the foreclosure of the prior mortgage, and directed that the complaint be dismissed, with costs.
    
      H. Countryman, for app’lt; James B. Lockwood, for resp’ts.
    
      
       Affirming 30 St. Rep., 170.
    
   Vann, J.

The learned"judges of the general term were of the opinion that the judgment in Sanders v. Hart was a bar to a recovery by the plaintiff in this action, and they affirmed the judgment rendered by the trial court on that ground. As the assignee in bankruptcy was a party to that action, it was held that he and his assigns were bound by the determination made therein that title to the premises in question was duly vested in Sarah Hart during her lifetime. It does not follow, however, that because the assignee was a party to that action he was a party to the judgment as rendered and entered, or that because he failed to answer the complaint he conclusively admitted all the facts alleged therein. If judgment had been entered against him by default, assuming that the court had jurisdiction, it would have been as conclusive, as to all facts properly alleged in the complaint, as if it had been rendered after issue joined, trial had and findings made. White v. Merritt, 7 N. Y., 352; Gates v. Preston, 41 id., 113; Newton v. Hook, 48 id., 676; Herman’s Estoppel & Res Ad judicata, § 50; Freeman on Judgments, § 330.

Ho judgment, however, was entered in that action, by default or otherwise, in favor of the plaintiff Sanders against the assignee, or any other defendant, nor in favor of any defendant against a co-defendant. The only judgment rendered was in favor of the defendants Hart, against the plaintiff Sanders, dismissing the complaint upon the merits, with costs, and affirmatively adjudging, that the proceedings in foreclosure were valid and vested a good title in Mrs. Hart. While a judgment may determine the ultimate rights of the parties on the same side, as between themselves, Code Civ. Pro., § 1204, the judgment in question did not purport to do so, but simply determined certain issues between the plaintiff in the action and the defendants Hart Heither in form nor effect did it determine the ultimate rights of those defendants and the assignee, as between themselves, nor could such a determination have been required by any defendant unless he had not only so demanded in his answer, but had also served a copy thereof upon the attorney of each defendant to be affected by the determination who had appeared, and personally upon each defendant so to b.e affected who had not appeared. Code Civ. Pro.,, § 521.

A judgment in favor of one defendant against another cannot be entered upon the default of the latter unless he has had notice and an opportunity to defend as against his co-defendant. Edwards v. Woodruff, 90 N. Y., 396; Albany City Savings Inst. v. Burdick, 87 id., 40.

A judgment against a plaintiff in favor of a defendant determines nothing between the latter and a co-defendant, because,, although both are parties to the action, they are not “ adversary parties,” as that phrase is applied to the subject of former adjudication. Herman on Estoppel, § 138.

Ho demand was made in any of the pleadings in the action brought by Sanders which called upon the assignee to assert his rights, or defend his title as against Hart, and no adjudication was made between the assignee and any party to the action. As to him the effect was the same as if no judgment had been entered, or as if he had not been made a party. We think, therefore,, that the judgment relied upon, although not pleaded, as a bar, is conclusive neither as a bar, nor as evidence against the plaintiff in this action, who is in privity with the assignee and bound only as he was bound.

It does not follow, however, that the judgment appealed from should be reversed, as the result may be right, even if some of the reasons given for declaring that result are wrong. Both parties claim title to the land involved through Joseph Hart. The plaintiff has all the interest therein which belonged to said Hart on the 6th of July, 1878, when his petition in bankruptcy was filed. That interest was subject to a mortgage, dated August 17, and recorded Hovember 27, 1876, which was subsequently foreclosed, and the defendants are in the position of purchasers in lawful possession under such foreclosure. The earlier title of the defendants must prevail over the later title of' the plaintiff, unless the former is defective. It is claimed that the mortgage was paid before the sale thereunder was made, and evidence was given from which the trial court could have found that such was the fact. The trial court, however, did not so find, and no reauest ■was made by the plaintiff for a finding upon the subject, and wo have held that 11 an omission to find facts claimed by the unsuccessful party to be warranted by the evidence can only be taken advantage of by an exception to a refusal to so find upon request duly made as required by the Code.” Travis v. Travis, 122 N. Y., 449, 454; 34 St. Rep., 42. We cannot look into the evidence for facts to reverse the judgment, except to see whether there is any evidence to support a finding, although we may to sustain it. Thomson v. Bank of British North America, 82 N. Y., 1; Burnap v. National Bank of Potsdam, 96 id., 125; Equitable Co-operative Fo. Co. v. Hersee, 103 id., 25; 3 St. Rep., 100.

The title of the defendants through the foreclosure of said mortgage is not questioned upon any ground except the one already mentioned, and as that must fail, owing to the practice pursued, we think that the conclusion of the trial court that Mrs. Hart acquired a good and paramount title through the foreclosure proceedings was correct and that it justified the dismissal of the complaint As the trial court based its action upon two independent grounds, one of which was right, the result was not affected by the fact that the other, as we have held, was wrong. The judgment appealed from should, therefore, be affirmed, with costs.

All concur.  