4 N.Y. St. Rep. 406 | N.Y. Sup. Ct. | 1887
This is an action of ejectment to recover land situated partly in Menden, Monroe county and partly in West Bloomfield, Ontario county.
The court in substance has found as facts, that the plaintiff on the 15th day of March, 1857, was the owner in fee of the farm in question,"and on that day he and his wife conveyed the same to one Loren Culver, since deceased. The plaintiff at the time being indebted to one Hiram Johnson, Johnson subsequently obtained judgment upon his indebtedness, and on the 8th of December, 1858, commenced an action in the supreme court to set aside the conveyance to Culver upon the ground that it was made without consideration and with the intent to defraud the creditors of the plaintiff ; that such proceedings were had in that action that on the 18th of May, 1858, judgment was obtained in favor of Johnson, adjudging the conveyance fraudulent and void, and directing that the premises be sold at public auction in the county of Monroe by Calvin Hewson, Esq., to whom it was referred to make such sale; that in pursuance of the judgment Hewson advertised and sold the premises to Johnson, the plaintiff in that action, and as such referee executed and delivered to him a deed; that Hewson made his report of sale as required by the court; that subsequently and about April 1st, 1861, possession of the premises was delivered to Johnson, who entered into possession under the deed from Hewson, and on or about the fifteenth day of April thereafter Johnson sold and conveyed the premises to one Daniel Sage, who subsequently conveyed to the defendant in this action, who entered into possession thereof and who has since held and continued in possession, claiming title thereto except. as hereinafter
As a conclusion of law the court held and decided that the pendency of the former action is a bar to this action. The plaintiff filed exceptions to the conclusions of law.
This action was previously tried and the complaint dismissed for the same reason. The same was affirmed in the general term (9 Hun, 461), but was reversed in the court of appeals (79 N. Y., 390), in which it was held that the former action was not a bar. It is now contended, however, that new facts are disclosed; that it has now been found that Culver had conveyed to the plaintiff, during the month of March, 1869, and prior to the commencement of
It is now contended that the judgment of July, 1869, was fraudulently entered to lay the foundation for getting a second deed from Culver, but the trial court has not found fraud in this regard, and we consequently do not regard the question as before us for consideration.
It is further contended that even though the former action was not a bar that the defendant has shown good title. The defect relied upon by the plaintiff in the defendant’s title is that Hewson, as referee, had no power to convey the lands in question to Johnson; that neither Culver nor the plaintiff joined with him in the deed. This case was first tried before the Hon. Addison Gardner, as referee, who considered this question and reached the conclusion that the referee’s deed was void and conveyed no title.
This same question was reviewed by this court on appeal, (65 Barb., 107), and the same conclusion was reached in an elaborate opinion by the presiding justice, in which all of his associates concurred. The decision was based upon the decision in The Chautauqua County Bank v. White (2 Seld., 236), Same v. Risley (19 N. Y., 369), Walker v. White (36
We consequently see no reason for interfering with the former decision of this court made upon this question.
It follows that the judgment should be reversed and a new trial order, with costs to abide event.
So ordered.
Bradley, J., concurs.