190 A.D. 501 | N.Y. App. Div. | 1920
Bartlett Smith in his lifetime was seized of certain parcels of real estate among which was 148 West One Hundred and Twenty-second street, in the county of New York. When this property was conveyed to him it was subject to a mortgage for $8,000. Bartlett Smith died December 7, 1894, leaving a last will and testament, which was duly admitted to probate and letters testamentary duly issued to the executors therein named. In the will, after directing the payment of his just debts and funeral expenses, he gave and devised all his property, real and personal, to his executors upon certain trusts therein specifically provided. The 8th subdivision of the will read as follows, so far as material to this controversy:
“ 8th. I authorize and empower my executors and the survivor of them and his successors in their or his discretion at any time to mortgage, lien, sell and convey any of or all my real estate and to make any proper agreements with reference thereto and to execute and deliver proper deeds and legal .instruments therefor and all the foregoing devises of my real estate shall be construed as subject to such power of disposition thereof by my executors. * * * ”
On March 28, 1895, the executors and trustees under the will of Bartlett Smith entered into an agreement by which the mortgage of $8,000 was discharged of record, and a new mortgage was executed by said executors and trustees as such, to secure the payment of $12,500 to this plaintiff, it being recited
The judgment of foreclosure and sale bound the parties to the action, if the court had jurisdiction of the parties and of the subject-matter. It is conceded that the court acquired jurisdiction of the defendants. It cannot be questioned that the Supreme Court, held in and for the county in which the real property was. situated, had power to foreclose a mortgage which was a lien on such property. Jurisdiction of the subject-matter is power lawfully conferred to adjudge concerning the general question involved; it is not confined within the particular facts that must be shown to make out a specific and imme
Applied to the case under consideration, it follows that the court had jurisdiction of the parties and of the subject-matter. The mortgage which was sought to be foreclosed was executed by executors and trustees qualified under a power contained in a will which had been duly admitted to probate and which had not theretofore been questioned or attacked. The validity of the mortgage would be presumed unless attacked. The only persons interested in the question presented were parties to the action. If the executors and trustees did not in fact have the power which the will in terms conferred upon them, because that power was for the purpose of carrying into effect trusts which were void, and the title to the premises was in the heirs at law, they had been summoned to the court and afforded an opportunity to present such a defense. Had the defense been pleaded, and the question litigated and decided against the defendants, no one could contend that the defendants were not bound and would be estopped from afterward setting up their interest as against the judgment in the foreclosure action, and what binds the defendants can be questioned by no one else.
“ The present case is within the general rule, that á judgment is conclusive between the same parties and their privies upon all matters embraced within the issue in the action, and which were or might have been litigated therein. It is immaterial whether issue was joined by the defendant or tendered by the plaintiff and left unanswered. The rule applies as well to a judgment by default when the facts stated warrant the relief sought as to one rendered after contest.” (Goebel v. Iffla, 111 N. Y. 170, 177.)
The learned counsel for the defendant claims that the heirs
We do not consider the other interesting questions very ably presented and argued by the respective counsel for the parties as, for the reasons above stated, they cannot now be considered.
The defendant will obtain a marketable title, and the plaintiff is entitled to judgment directing the defendant to specifically perform the contract set forth in the terms of sale by paying the remainder of the purchase price and accepting the deed as tendered by the plaintiff, and that the plaintiff have costs and disbursements of the action to be taxed.
Clarke, P. J., Dowling and Philbin, JJ., concur; Smith, J., dissents.
Judgment ordered for plaintiff as stated in opinion, with costs. Settle order on notice.