149 N.Y.S. 426 | N.Y. App. Div. | 1914
Michael A. Archer died August 23, 1881. He left him surviving his widow, Clarissa A. Archer, and three sons, Charles D. Archer, Allison M. Archer, and the above-named defendant, George Archer. He left a last will and testament, which, on October 12, 1881, was duly admitted to probate in Rockland county. It contained these, among other provisions: “I give, devise and bequeath all my property, real and personal to my executors hereinafter named in trust to receive the rents, issues and profits thereof for and during the lifetime of my wife Clarissa A. Archer, and apply the same to the use of the following persons, as follows: pay the one-third thereof to my said wife during her lifetime and the other two-thirds thereof to my three sons, Allison M. Archer, Charles D. Archer and George Archer, in equal proportions during the same time. * * * At the death of my said wife, I order and direct my said executors to sell and dispose of my property, as soon as they deem it wise and expedient so to do, and divide the proceeds thereof equally between my said three sons, unless they elect then to hold the same; hut if they elect and desire to hold the same together then the same shall be conveyed to them by my said executors instead of being sold. * * * I constitute and appoint my sons Allison M. Archer, Charles D. Archer and George Archer and my friend George S. Sherwood, the executors of this my last will and testament, my son George to qualify as such when he becomes twenty-one years of age.” • Clarissa A. Archer is still living. George S. Sherwood never qualified as executor. Allison M. Archer died July 20, 1892, leaving him surviving his widow, the ^plaintiff Margaret Archer, and four children, the plaintiffs William Watson Archer, Edith K. Archer, Laura Louise Archer, and one Amanda Archer, who subsequently, and before the commencement of this action, died, unmarried, intestate and without issue. He left a last will and testament, duly proved in Rock-land county, by which he gave to his executors all his estate,
On January 27, 1887, for the purpose of securing to said Sherwood the payment of an additional sum of $3,000 and interest, he executed and delivered to him a second bond for that amount, secured by a mortgage similar in form, and covering the same property as the mortgage of October 20, 1885, hereinbefore referred to. On July 20,_1887, for the purpose of securing to said Sherwood the payment of an additional sum of $6,000 and interest, he executed and delivered to him still another bond for that amount, secured by a third mortgage similar in form, and covering the same property as the two mortgages hereinbefore referred to. On May 7,1887, Sherwood assigned the first of said bonds and mortgages to Charles D. Archer and defendant George Archer, who, on December 17, 1900, assigned the same to defendant Fannie F. Archer. On October 7, 1896, Sherwood assigned the second of said bonds and mortgages to the People’s Bank of Haverstraw, and on January 13, 1896, he assigned the third of said bonds and mortgages to said bank. On February 1, 1909, the People’s Bank assigned both of said bonds and mortgages to Clarissa A. Archer, who, on February 3, 1909, assigned the same to defendant Fannie F. Archer.
On July 9, 1912, the premises covered by said mortgage and directed to be sold by the judgment in action numbered one, as modified, was offered for sale by the referee named therein, and upon such sale were struck down to defendant George Archer for the sum of $15,575; and on September 7, 1912, said premises were conveyed to him and he now claims to be the owner thereof. Upon such sale a surplus of about $3,000 arose, which defendant Fannie F. Archer seems to have credited upon the amount due under the judgment in action numbered two, leaving a balance due under said judgment in excess of $18,000.
The court at Special Term has also found that on December 15,1900, the sheriff of Rockland county, having sold to Clarissa' A. Archer under execution issued upon a judgment recovered
By its decision in this action and the judgment entered thereon, the learned court at Special Term has, first, set aside both the sale to George Archer on July 9, 1912, under the judgment of foreclosure hereinbefore referred to, upon the ground that because he was then sole surviving executor and trustee of the will of Michael A. Archer, his relation to the subject-matter of said action and to the plaintiffs in this action, who were beneficiaries under said will, was of such a character that he was not permitted to become the purchaser of said premises for his own personal gain and profit and to the possible detriment of the above-named plaintiffs; second, it was held that in the purchase of the three mortgages hereinbefore referred to by Fannie F. Archer, she was “ acting simply as a dummy, agent or go-between ” of her husband, defendant George Archer, who was the real party in interest, and that such purchase and the subsequent foreclosure of said mortgages and the subsequent purchase of said property by George Archer was in violation of his duties as trustee and executor, as aforesaid, and in violation of the rights of the above-named plaintiffs and to their great damage; third, that the purchase by Charles D. Archer and George Archer from Clarissa A. Archer of the estate in remainder of Allison A. Archer under the execution sale against him, was likewise in violation of their duties as executors and trustees; and finally, that defendant George Archer must hold in trust for said plaintiffs all the
In so far as said judgment affects the validity of the assignments of said three bonds and mortgages to Fannie F. Archer, and the judgments entered for the foreclosure thereof, it is clearly erroneous. Such judgments create an estoppel. The complaints in said actions allege that said assignments were duly made, and that the entire amount secured to be paid by said bonds and mortgages was due to the plaintiff therein. These allegations were met by a denial on the part of the present plaintiffs of any knowledge or information sufficient to form a belief respecting the same. The findings in said actions are to the effect that the bonds and mortgages were duly assigned to Fannie F. Archer, and that she then was and since has been the owner and holder thereof, and that there was due to her thereon the full face value of said bonds and mortgages, with interest thereon. A judgment of a court of competent jurisdiction is, as a general rule, final, not only as to the subject-matter thereby actually determined, but as to every other matter which the parties might litigate in the cause and which they might have had decided. (Embury v. Conner, 3 N. Y. 511; Dunham v. Bower, 77 id. 76; Pray v. Hegeman, 98 id. 351; Campbell Printing Press & Mfg. Co. v. Walker, 114 id. 7; Reich v. Cochran, 151 id. 122; Thorn v. De Breteuil, 179 id. 64, 82.) We think that under the pleadings in these actions every fact which is here made the basis of this portion of the relief granted might have been litigated. The judgments in express terms not only determined the absolute ownership by Fannie F. Archer of said bonds and mortgages, but also the amount due to her thereon, as material facts to the controversy. By such judgments these material facts were conclusively settled and cannot thereafter be litigated between the parties to said actions while said judgments remain in force. (Kelsey v. Ward, 38 N. Y. 83.)
In the present circumstances plaintiffs have two remedies: They may elect to ratify the unauthorized purchases and to hold the purchaser accountable for the value of the property so purchased by him over and above the amount actually paid by him therefor. This must be, however, without prejudice to the balance remaining due and unpaid upon the second and third mortgages which are the subject-matter of the foreclosure action hereinbefore referred to, numbered two. Or, if the plaintiffs so elect, they may have such sales set aside upon reimbursing defendant George Archer for the amounts actually
The judgment appealed from should be reversed upon questions of fact as well as of law, and a new trial granted, costs to abide the final award of costs.
Jerks, P. J., Rich, Stapleton and Putnam, JJ., concurred.
Judgment reversed upon questions of fact as well as of law, and a new trial granted, costs to abide the final award of costs.