Benjamin v. Elmira, Jefferson & Canandaigua Railroad

49 Barb. 441 | N.Y. Sup. Ct. | 1867

By the Court, E. Darwin Smith, J.

The conclusions upon the law, of the learned judge who tried this cause as a referee, upon the facts found by him, I think entirely correct. The decree upon the foreclosure of the mortgage of $300,000, given to Knapp & Townsend as trustees, &o. is, I think, binding and conclusive, as an adjudication, upon the defendants in respect to the subject matter in controversy, in this action. The mortgage, mortgage bond, and the certifi- " cate thereon indorsed, referred to in said decree, are all to be construed together. They are parts and parcels of the same . security. By the mortgage, the mortgagors grant, bargain, transfer and set over to the said trustees, the party of the second part, u all and singular the railroad constructed and to be constructed, with-the lands, tracks, lines, bridges, way buildings, piers, privileges and franchises, together with all the locomotives, tenders, cars, carriages, tools and machinery now-owned, or hereafter to be owned, by said company, or in any way belonging to or appertaining to said road and to-be used thereon, between Canandaigua and Jefferson.” This; mortgage was' clearly valid in equity in respect to subsequently acquired property, and the decree of this court declaring such to be its effect, and directing the sale of all the property embraced therein, is a conclusive adjudication upon that point, against all pérsons, parties or privies in that suit. The plaintiffs in this action were parties defendant in that suit; their right? were all acquired and existed at the time of its commencement. They were made parties as subsequent incumbrancers by judgment or mortgage. It was alleged in the complaint that their several judgments, mortgages or other claims were subsequent and subordinate and inferior to the said first mortgage, and the lien, incumbrance, claim and effect thereof, as to all the property, real and personal, then or thereafter, of the said railroad company. If there is any thing in the principle that when a party is brought into court and given an opportunity to present his claims and contest the rights asserted against him, he must do so at the peril of being cut off and foreclosed in respect to all such claims, the plaintiffs are clearly estopped from going back of this decree. They were subsequent incumbrancers upon the property in question. They were called upon to set up their claims and assert their rights, and omitted to do so, and suffered the plaintiffs in that suit to take the said decree and proceed to execute the same.

But if this decree were not binding upon them as an adjudication, the decision of this court upon the questions presented in that case and raised and litigated by the Elmira and Canandaigua and Niagara Falls Railroad Company on the express ground that said mortgage did not bind or hold the rolling stock of said Canandaigua and Elmira company, nor its property acquired after the date of the mortgage, is res adjudicóla. This question was then litigated, and this court decided the question, at general term, in favor of the plaintiff. (See MS. opin. of court in case of Knapp v. Can. and Elmira R. R. Co. 1859.) The question presented on the argument, of the construction and form of the said mortgage is therefore not an open one, in this court. That judgment remains unreversed, and we see no reason to overrule the decision then made upon the question. It is suggested that the said judgment and decree is not conclusive, because the plaintiffs were made parties as judgment creditors. I do not think this position at all tenable. The plaintiffs were made parties as subsequent incumbrancers. It matters not what their liens were; they had an opportunity to set them up and litigate the question in that suit. It is of no consequence that the plaintiffs made them thus parties as judgment creditors, and in ignorance of their chattel mortgage. The plaintiffs in this suit were not ignorant of the existence of their own mortgage, and they knew that the plaintiff in that suit claimed a prior lien upon the property in question therein, and were seeking to enforce it against them and all subsequent incumbrancers, or to cut off all subsequent liens of whatever nature.

[Monroe General Term, June 3, 1867.

Being quite clear in the opinion that these plaintiffs are estopped from going behind this decree to bring into discussion anew the question of the original construction of the said mortgage to Knapp & Townsend, foeeclosed thereby, I have not thought, and do not think, it necessary to discuss the other question raised upon the argument. I will say, however, that I think the case, upon the whole, was properly disposed of by the referee, and that his conclusion upon the whole case is correct and sound.

The judgment should he affirmed, with costs.

Judgment affirmed.

Welles, E. D. Smith and Johnson, Justices.]