
    Russell W. Ostrander, App’lt, v. Joseph Hart, Ex’r, et al., Impl’d, Resp’ts.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed February 10, 1890.)
    
    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 the assignee in bankruptcy were made parties, to set aside the sale, in which the sale was adjudged good. Feld, that such judgment was binding on the parties to this action.
    2. Foreclosure—Parties.
    An assignee in bankruptcy, whose title is subject to a mortgage, is a necessary party to an action of foreclosure or which affects the validity thereof. ■
    8. Pleading—Evidence.
    A judgment as evidence of a fact in issue is competent, although not pleaded.
    
      Appeal from judgment dismissing complaint.
    Action of ejectment to recover eight lots of land at Corona, Queens county.
    
      William Settle, for app’lt; James B. Lockwood, for resp’ts.
   Barnard, P. J.

The plaintiff established by the evidence given in his behalf that one Joseph Hart, on the 6th of July, 1878, was the owner of certain lots in Queens county. On that day Hart filed his petition of bankruptcy. The lots in question -were included in the schedules filed in the bankruptcy proceedings. An assignee was appointed under order of the court, and the registrar in bankruptcy assigned the lots to the assignee. The assignee sold the same to the plaintiff. The deed from Post to Ostrander was executed April 30, 1887, but it conveyed the interest which Hart had had on the 6th of July, 1878. The defendants were in possession of the property and refused to deliver the same to the plaintiff. The plaintiff made out a plain case for a receiver in ejectment. The defendant’s evidence, however, discloses and establishes that the bankrupt, Joseph Hart, with Sarah, his wife, executed and delivered to James 0. Saunders a mortgage on the same property on the 17th of August, 1876, which was duly recorded in Queens county in Uovember, 1876. This mortgage was foreclosed by advertisement and sold on the 20th of June, 1879, and was purchased at the sale by Sarah Hart, wife of Joseph Hart. This mortgage was given for $7,000, and the amount claimed on the mortgage was $8,020, on the 12th of March, 1879. The proper affidavits were made upon this sale to vest the mortgage title in Sarah Hart. Her bid was $3,000. If the foreclosure sale was valid Sarah Hart acquired a title, and she died without parting with it. Her executor sold her interest to the defendant Price, who now owns her rights.

The defendant thus makes a perfectly plain title and right to the possession. Saunders is, however, produced, and he testifies that the $7,000 mortgage was paid at the time of the sale. The sale was made under an agreement between Saunders and Mrs. Hart that she should have the title for the actual expenses of foreclosure, thus supporting the evidence of Saunders in the payment of the mortgage.

The evidence then established that subsequently Saunders commenced an action to set aside the foreclosure proceedings on the ground that the mortgage had not been paid.

The bankrupt Hart and the assignee in bankruptcy, Post, were parties defendant. The case was tried and resulted in a judgment which presents the only point in the case on this appeal. The court found that on the faith of the agreement between Saunders and Mrs. Hart she advanced moneys to her husband upon the assurance that she should receive a title by foreclosure. The court found that Mrs. Hart acquired rights under the sale which her estate was entitled to hold. The decree adjudged the sale good upon the foreclosure by advertisement. Whether Tighter wrong the decree is the law of the case, for the judgment has. never been set aside. The objection that the assignee in bankruptcy could not be made a party defendant is not good.

He made no objection to it. His right was subject to the right of the mortgage if the mortgage was not paid.

In such a case as this the court of appeals held that he is a necessary party to a foreclosure when his title is subject to a' prior mortgage. Winslow v. Clark, 47 N. Y., 261.

It was not necessary to plead the judgment. The issue was as to the title. The plaintiff averred title in himself. The defendants denied it and set up title in themselves. The evidence of the title would be improper pleading.

Title by judgment is as valid as title by deed. The defendants could show title by judgment and this was done, not only by judgments but by a judgment which-bound the plaintiff and those who claimed under him. A judgment as evidence of a fact in issue was competent, although not pleaded, like any other evidence, documentary or oral. Krekeler v. Ritter, 62 N. Y., 372.

The judgment roll was received without objection.

The judgment should therefore be affirmed, with costs.

Dykman, J., concurs.  