27 N.Y.S. 29 | N.Y. Sup. Ct. | 1893
It is undisputed that the defendant is in possession of these premises, claiming as a purchaser at a sale under a judgment of foreclosure* of what is known as the Briggs mortgage. It is also undisputed that the four and one-half acres of which the plaintiff claims to he. the owner, was subject to the lien of that mortgage; that it was owned by one Barney Welch, who was in possession at the time of the foreclosure of the Briggs mortgage, and that Welch had given a mortgage upon that parcel of land which was subsequent to the Briggs mortgage. It is undisputed, too, that this subsequent mortgage was owned at the time of the foreclosure by Conway P. Wing. Wing had been named as a defendant in the action brought to foreclose the Briggs mortgage. Whether or not summons had been served upon hinq or whether there was a sufficient admission of service by him, so that he became subject to the jurisdiction of the court in the foreclosure action, is one of the questions litigated in this suit.
It is also undisputed that after the defendant Field had become the purchaser of the premises under the Briggs mortgage Wing commenced a proceeding by advertisement to foreclose his mortgage; that such proceedings resulted in a sale, and that the premises were bid off by Prudence M. Wing.
Whether these statutory proceedings were so conducted as to vest' any title in the purchaser under them was also a question which was sought to be litigated in this case.
But in the view which I have been forced to take of the case, I have not found it necessary to examine any of the disputed questions of fact which have arisen, because, as it seems to me, every question sought to be litigated on this trial has been foreclosed by the judgment of this court in the case of Wing v. Field, the judgment record of which was put in evidence by the plaintiff.
It will be seen from this short statement that the ultimate question litigated in that action was whether the plaintiff, Prudence M. Wing, was entitled to the possession of the premises. That question was to be decided by investigating the extent of her title, and if that title proved to be a good one, then by examining whether there was anything in the claim of the defendant which justified him in his retention of the possession of the premises in spite of the title which was vested in the plaintiff in the case.
It is not material to the estoppel of a judgment which party succeeds in the action. Whatever may be the result, the judgment is still an estoppel which may be relied upon by either party so far as it finally adjudicated upon his rights. Ordinarily, to be sure, a judgment against a party is not invoked by him as deciding anything in his favor against his opponent, but yet it may be so invoked if anything has been decided favorable to him which was essential to the rendition of the judgment.
The extent as to which the judgment is conclusive upon the parties to the action is not at- all doubtful. As stated by Mr. Freeman, it is that the judgment is conclusive only as to facts directly and distinctly put in issue and the finding of which must be necessary to uphold the judgment. Freem. Judg. § 257. The judgment is conclusive upon every matter actually and necessarily decided in the former suit, though not then directly the point in issue. If the facts involved in the second
The rule is well illustrated by the case of Gates v. Preston, 41 N. Y, 113. It appeared in that case that Gates had brought an action against Preston, who was a physician, for the recovery of damages resulting from Preston’s unskillful and negligent treatment of a broken arm of Gates.. After the action for malpractice had been begun, Preston brought an action in a Justice’s Court for his services for treating the arm. In that action he recovered a verdict for the value of his services. Upon the trial of the malpractice case the judgment in the Justice’s Court for the value of the services was pleaded and allowed as a conclusive adjudication that the physician had performed the implied contract between himself and his patient, that he would treat the fractured arm with ordinary skill, and, therefore, that there had been no mal- . practice. It appeared upon the trial that no question at all had been raised in the v Justice’s Court as to the .negligence of the physician. The court held, however, that as the plaintiff in the action for services could not recover unless he had proved á performance of the contract on his part to treat his patient with ordinary skill, the adjudication that he was entitled to recover necessarily involved a -finding that he had done what the law required by way of performance of this contract.
The rule in every case is that the judgment is final as to every fact litigated and decided in the action having such a relation to the issue that its determination was necessary to the determination of the issue. House v. Lockwood, 137 N. Y. 259. Whenever, therefore, it is necessary-to see how far any judgment is an adjudication, one must go back of the mere form of the judgment and ascertain what were the facts necessarily decided by it, and without which the judgment could not have been rendered. It will be noticed that the pleadings in the ejectment case admitted that Field was in possession of the premises. It will be seen, therefore, that the question
It may be said, to be sure, that the only question litigated in that action was as to the right of possession between the parties. In one sense that is true, but the right of possession depended upon certain facts from which it was a legal conclusion, so far as the existence of those facts was necessary to enable the court to draw the legal conclusion; so that the question depended upon them, so far as they are adjudicated in the action. The estoppel extends beyond what appears on the face of the judgment to every allegation which, having been made on the one side, and denied on the other, was at issue and determined in the course of the proceedings. It not only established the action of the party who succeeds, but it disapproves or negatives the action of the party who is defeated, and, so far as the facts must necessarily be established for every proposition, so far they must be considered as finally adjudicated between the parties.
It is not the object of the suit, the recovery or fruits of the litigation alone, that constituted the estoppel, but the facts put in issue and found upon which the recovery is based, facts in issue as distinguished from evidence in controversy. Caperton v. Schmidt, 26 Cal. 479. It is not necessary to the conclusiveness of the former judgment that the issues should
It having been made to appear that the plaintiff’s grantor was the owner in fee and Field was mortgagee in possession only, it necessarily follows that the plaintiff is entitled to redeem the premises.
It is well settled that, although he has the equity of redemption to a part only of the mortgaged premises, he has no right to confine his redemption to that part alone, but if he comes to redeem he must redeem the whole mortgaged premises. Boqut v. Coburn, 27 Barb. 230, 233. To make that redemption after the purchaser has entered into possession he must pay the amount of the mortgage debt and interest and the value of the improvements made by the purchaser, less the uents and profits received by him. Jones Mort. § 1075. Such is the case where there has been no judgment. But where there has been a judgment for foreclosure a subsequent incumbrancer, who desires to redeem, would be compelled to pay, 'not only the amount due upon the mortgage, with interest, but also the costs to which the party has been put by way of asserting his rights. Thus, costs were paid by Field, and for that reason I think he should be entitled to have them paid back to him upon this redemption.
But the rule which requires the owner of the equity of
In actions of this sort the usual rule is that the plaintiff who comes into court should pay the costs to the defendant although-he is successful in the suit. Jones Mort. § 1111. That should be, I think, the rule in this case. The plaintiff comes into court, asking for a favor against the defendant. He has not put the defendant in default by any offer to redeem or by the tender of any amount of money, so that the defendant was perfectly justified in defending this action until the equitable rights of the parties should be adjusted That being so, I think it' is a proper case for the application of the usual rule, that where a party comes into court to redeem from a mortgage, he usually pays the costs, although he obtains the relief sought. Parker v. Austin, 15 Wkly. Dig, 474; Benedict v. Gilman, 4 Paige, 58.