
    Harris Wilson, Plaintiff and Respondent, v. John Davol, Defendant and Appellant.
    1. A judgment between two persons, determining the title to land which both claim, makes part of the title, runs with the land, and concludes all who derive a title to such land from either of those parties, subsequent to the recovery of such judgment.
    2. But it does not bind any person who derives a title from either by a deed or lease executed prior to the commencement of the action in which such judgment was recovered.
    3. The perfection of a title, by purchase at a Sheriff’s sale on judgment and execution, extinguishes a lease given by the judgment debtor between the time of the Sheriff’s sale and the execution of the Sheriff’s deed.
    (Before Bosworth, Oh. J., and Hoffman and Moncrief, J. J.)
    Heard, December 14;
    decided, December 31, 1859.
    This is an appeal by John Davol, the defendant, from a judgment in favor of Harris Wilson, the plaintiff, rendered on a trial had before Mr. Justice Slosson, without a jury, on the 23d of April, 1857.
    The action is brought to recover rent of the house and lot Ho. 50 Harrison street, Brooklyn, for three quarters, ending, respectively, Hovember 1, 1849, and February 1 and May 1, 1850; which rent the plaintiff claimed as assignee of a lease of the premises from Jacob Carpenter to the defendant, (dated July 22,1848,) for two years from the 1st of May, 1848, and also as owner of the premises under a title acquired September 18, 1849, at a purchase thereof on a foreclosure by advertisement of a mortgage thereof executed by said Carpenter to one Sarah Loines on the 2d of December, 1844. The allegations of the pleadings, as to such mortgage and its foreclosure, are stated in the opinion of the Court.
    The lot 50 Harrison street is mainly on a lot numbered 75 on a map produced at the trial, and is partly on the adjoining lot, having the map number 76.
    The lots, map Hos. 75 and 76, were sold by the Sheriff of Kings county on judgments (being liens thereon) and executions against said Jacob Carpenter on the 15th of December, 1847, and were conveyed by the said Sheriff, by a deed dated March 16, 1849, to Sylvanus B. Stilwell, as a judgment creditor of Carpenter, who had duly redeemed the premises so sold.
    Davol claimed to hold under said Stilwell from and after the 1st of May, 1849, and refused to pay rent to Carpenter subsequently thereto. It was found, as a fact, that Davol was notified by Stilwell of the said conveyance to him from the Sheriff' two or three days after it was delivered, and then agreed to pay, and subsequently did pay, to Stilwell the rent of the premises until the expiration of said lease.
    On the 7th of May, 1850, Carpenter assigned said lease to the plaintiff, and all rents accruing under it since October 1, 1849.
    On the 14th September, 1850, an action was tried in the City Court of Brooklyn, between the said Jacob Carpenter, plaintiff, and the said Sylvanus B. Stilwell and Isabella Ambrose, defendants, for the recovery of the possession of a lot of ground in Court street, Brooklyn, one of the pieces of property described in said deed of the 16th March, 1849, from the Sheriff of Kings county to said Stilwell. In that action the validity of said deed was passed upon, and the same was adjudged to be void, and judgment was rendered for the plaintiff in said action; which judgment was subsequently affirmed by the Court of Appeals.
    To prove the fact of such recovery, and thereby to establish the invalidity of said Sheriff’s deed, the plaintiff produced the record of the judgment in the last named action, and the defendant objected to its admissibility as evidence, and excepted to the decision admitting it. Thé record did not show when such'action was commenced. The summons in it is dated “ August, 1849 the complaint in it is verified August 6, and the answer August 31, 1849. It was tried September 14, and judgment was perfected November 14, 1850. That judgment was affirmed by the Court of Appeals in 1854.
    The Judge, on the trial of this action, held that Stilwell acquired no title under the deed of the 16th of March, 1849, “ and that the defendant is bound by the aforesaid decision (of the City Court of Brooklyn) in relation to said deed;” to which decision he excepted.
    The printed Case states the reversal by the Supreme Court of the judgment of the City Court of Brooklyn, and refers to Carpenter v. Stilwell, (12 Barb., 128;) and also states the reversal by the Court of Appeals of the judgment of the Supreme Court and affirmance of that of the City Court of Brooklyn, and refers to Carpenter v. Stilwell. (1 Kern., 61.)
    • Judgment was given for the plaintiff for the three quarters’ rent, with interest and costs; and from that judgment the present appeal is taken.
    
      J. Greenwood, for appellant.
    1. The complaint alleges that the lot No. 75, embracing nearly the whole of the demsied premises, was sold to the plaintiff under foreclosure of a mortgage made by Carpenter prior to the lease to .the defendant Davol. This sale extinguished the lease as to all of the demised premises comprised in that lot. (Simers v. Saltus, 3 Denio, 214.)
    The plaintiff, having alleged this fact in his complaint, cannot now deny it for the purpose of enabling him to recover upon the ' lease.
    II. After the foreclosure and sale of the mortgaged premises, no relation of landlord and tenant existed as between Carpenter, the lessor, and the defendant Davol, and the assignment of the lease in May, 1850, by Carpenter to the plaintiff, carried with it no right to recover rent claimed to be due on and .subsequently to November 1, 1849.
    III. The title of Stilwell, under the Sheriff’s deed of the whole of the premises, was perfect, and thé attornment by the defendant to him was therefore legal. The only evidence offered to impeach this is the judgment roll in the case of Carpenter v. Stilwell and Ambrose, in the City Court of Brooklyn, which is not evidence against the defendant in this case. (Jackson v. Rowland, 6 Wend., 666; Nellis v. Lathrop, 22 id., 121.)
    1., It is a record of a judgment on ejectment for other premises, and between other parties. (Lawrence v. Hunt, 10 Wend., 80; Jackson v. Wood, 3 id., 27; Snyder v. Sponable, 1 Hill, 567.)
    2. It does not appear from the record itself, nor from any proof aliunde, that the validity of the Sheriff’s deed was passed upon. (Gardner v. Buckbee, 3 Cow., 120; Burt v. Sternburgh, 4 id., 559; 10 Wend., 84; 1 Greenl. Ev., §§ 528, 529.)
    The judgment should be reversed.
    
      
      J. W. Gilbert, for respondent.
    I. The plaintiff, as the assignee of the lease, is entitled to recover any rent that became due subsequent to the 1st of October, 1849, although his title to the reversion accrued subsequently. (2 R. S., 4th ed., 154, § 17.)
    1. This assignment was valid. It is an assignment of the agreement to pay the rents, &o.
    There was no adverse possession: Davol was in possession under his lease from Carpenter. He claimed in no other way. Although Stilwell had acquired the Sheriff’s deed, he never took possession, or attempted to take possession. The case shows that an arrangement was made by which Davol was to pay him the rent. The lease was recognized, and hence the rent was agreed to be paid upon being indemnified.
    2. Carpenter had a valid claim for the rent due upon the lease, except so far as the plaintiff had acquired it by his purchase of the premises.
    Stilwell, by his purchase, or under the Sheriff’s deed, acquired no right whatever. (Carpenter v. Stilwell, 1 Kern., 61.)
    3. The plaintiff, therefore, as assignee of Davol’s agreement, became entitled to all the rent falling due subsequent to 1st October, 1849. For this he recovered against Davol, and that recovery should not be disturbed.
    4. The attornment to Stilwell was a nullity. (3 Denio, 216; 2 R.S., 3d ed., 29, §3.)
    II. The judgment in the City Court was a perfect estoppel.
   By the Court—Bosworth, Ch. J.

The defendant cannot claim on this appeal that the mortgage on lot Ho. 75 had been foreclosed, and the lot purchased by the plaintiff, prior to the accruing of the rent which this action is brought to recover.*

Ho such fact is found by the Court nor was proved at the trial; no such fact is admitted by the pleadings.

It is true that the complaint alleges the making of the mortgage ; default of the mortgagor; a foreclosure of the mortgage, and a purchase of lot Ho. 75 by the plaintiff. But the defendant in his answer controverts the allegation of the mortgagor’s default, and charges that the mortgagee, (in the endeavor to foreclose by advertising under the statute,) did not advertise according to the statute, “ and that notice of such sale was not duly advertised."

Such being the pleadings, and no evidence having been given of any proceedings to foreclose, the case stands as if the fact of such a foreclosure had not been alleged.

The lease from Carpenter to Davol was for two years from the first of May, 1848. This action is to recover three quarters rent of the premises, ending November 1, 1849, and February 1, and May 1, 1850. This lease and the rents due from Davol as such lessee have been assigned to the plaintiff.

Davol resists the plaintiff’s claim on the ground that lot No. 75 and the adjoining lot had been sold by the sheriff of Kings county, on executions against Cárpenter, issued on judgments recovered prior to the date of the lease from him to Davol, and that S. B. Stilwell received, as a judgment creditor redeeming from the purchaser at said sale, the Sheriff’s deed on the 16th of March, 1849. That Davol, subsequently thereto paid rent to said Stilwell, as the owner of lot No. 75, by a title thus acquired.

To this it is answered, that in September, 1850, an action was tried which Carpenter had commenced against Stilwell, to recover the possession of another lot in Brooklyn conveyed by the Sheriff’s deed before mentioned and sold under the same executions as the one in question; that the validity of such deed, and of the title thereby acquired, was a point in judgment; and that it was held to be invalid.

The Court at Special Term found these latter facts to be true. As we read the case, Carpenter v. Stilwell, (12 Barb., 128, and 1 Kern., 61,) and the reports thereof, were read in evidence by consent, for the purpose of showing thereby what questions were litigated and determined in that action.

If this view be correct, these reports show that the act of the Sheriff in selling upon the executions on which the sale was made, which is the basis of Stilwell’s title, and the deed given to carry such sale into effect, were adjudged to be without authority and void.

The only material question left is, whether the judgment in the suit between Carpenter and Stilwell, and the trial and determination of those questions in that suit, are conclusive against Davol in this suit, that Stilwell had no title.

■ ' The Court held, as a conclusion of law, “ that the defendant is bound by the aforesaid decision in relation to said deed.” To this decision the defendant duly excepted.

The Sheriff’s deed to Stilwell is dated on the 16th of March, 1849. Davol claimed to hold under Stilwell from and after the 1st of May, 1849, and refused to pay rent to Carpenter subsequently thereto.

■ The action between Carpenter and Davol, in which it was determined that the deed of the 16th of March, 1849, was void, was tried on the 14th of September, 1850. It was not found at Special Term when that action was commenced. The summons in it is dated “ August, 1849,” and the complaint in it was verified “ August 6, 1849.” It may be assumed, therefore, that it was commenced after the 1st of August, 1849, several months subsequent to the time when Stilwell apparently acquired the legal title, and several months after Davol recognized him as the owner and agreed to pay rent to him.

To make the judgment in the action between Carpenter and Stilwell evidence against Davol in the present action, it is indispensable that the former action should have been commenced, if not determined, prior to the time when the agreement between Stilwell and Davol was concluded, and the rights which the latter acquired thereby had become fixed. (Campbell v. Hall, 16 N. Y. R., 580.)

The act, or proceeding, relied upon as an estoppel, must have been done, or been had, prior to the time when the defendant acquired the title which is claimed to be affected and bound thereby.

■A judgment between any two parties, determining the title to land which both claim, makes part of the title, runs with the land, and concludes all who derive a title to the land from either of those parties subsequent to such judgment. But it does not bind any person who derives title from either, by a deed or lease executed prior to the commencement of the action in which such judgment was rendered. (Campbell v. Hall, supra, and the cases there cited.)

It was, therefore, erroneous to hold that the judgment in the action of Carpenter against Stilwell and Ambrose bound Davol.

The title of Stilwell under the deed of the 16th of March, 1849, assuming it to be valid, extinguished the title of Davol 'as lessee of Carpenter. That lease was made after the sale by the Sheriff _ of the premises thus leased. The sale by the Sheriff was made on the 15th of December, 1847, by virtue of executions on judgments docketed the 11th of March, 1846.

Stilwell, having become the absolute owner, by virtue of the Sheriff’s sale and Sheriff’s deed, had a right to the immediate possession of the premises; and Davol might lawfully agree to occupy as his tenant and to pay rent to him.

The Judge at Special Term did not find, as a fact, that the Sheriff’s deed was void, nor was any evidence given upon that point beyond the introduction of the record in the suit between Carpenter and Stilwell, and proving that in such suit it was adjudged to be void.

In the present action it is open to the parties to litigate that question upon such competent evidence as either may offer; and the defendant is not bound by the decision and judgment in the action between Carpenter and Stilwell. (Thomas v. Hubbell, 15 N. Y, 405-409.)

It follows that the judgment must be reversed, and a new trial granted, with costs to abide the event.

Ordered accordingly.  