57 N.Y.S. 48 | N.Y. App. Div. | 1899
The facts appearing in this case are somewhat complicated, and for a correct understanding of the case it is necessary that they should be carefully recited.
' Of.that judgment it may be said that, as neither Wright nor Kling were parties to it, it is evidence in this action of nothing but. its own rendition, and it is only material as tending to show- that by some means Weiser has the title to the mortgage and that it is not satisfied. It neither establishes, as against the defendants in this action, that Weiser- paid any money upon that mortgage, nor that lie paid the money in good faith, nór that the mortgage was not properly reduced to $2,500 when Weiser took his conveyance, nor that the money paid upon the mortgage before that time was actually advanced by him to Mrs. Wéisel. For any other purpose than showing that the mortgage is no.t in fact extinguished it is of no-importance whatever.
After this judgment' against Friend had been entered,-Weiser brought this action against Wright and Klingdo foreclose the Friend mortgage, 'claiming that there was due upon it all the money which had been paid since it was made. The defendants Iiling and Wright-answered, disputing the right to foreclose the mortgage, and. setting up the judgment in the creditor’s suit as a reason why the plaintiff should-be defeated in this action. The learned justice at the Special Term dismissed the complaint, and from the judgment entered upon his decision this -appeal is taken. .
In the judgment creditor’s action, Wright, one of the defendants here, was the plaintiff; Weiser was one of the defendants,- and Mrs. Wpisel was another.. That judgment; therefore, is evidence in this action -between the parties as to everything which was decided in it, or whatever fact lay at the basis of the decision and was necessary to be established in order to warrant the decision therein made. (House v. Lockwood, 137 N. Y. 259, 268.) Wright alleged in that case that the conveyance by Mrs. Weisel to Weiser was made with intent to -hinder, delay and defraud her creditors, and especially himself. Weiser in his answer denied the fraud, and set up that he was a purchaser for a valuable consideration. To enable Wright to' recover in that action it was not sufficient that he should prove simply' that the conveyance was not founded upon a valuable considera
Weiser claims, as the ground for his subrogation to the rights of Friend in this mortgage, that he paid every dollar of the, money which was paid upon it, both before the conveyance was made and .afterwards. In his bill of particulars he states that he had paid before the 15th of August, 1895, on account of the principal of this mortgage, $3,700, and on account of interest, $675. He alleges in This answer to the creditor’s bill that he was a purchaser of the premises for a valuable consideration. He testifies in this case that The received tliat conveyance of the 5th of October, 1895, for the money which he had let Mrs. Weisel have to pay upon this mort.gage. He had previously testified to that fact in supplementary proceedings, and he repeats his testimony in this action. There was no dispute in regard to that matter in this case, and the justice who decided the case finds as a fact that the consideration for the ■conveyance of the 5th of October, 1895,, was the money paid by Weiser before that time to Friend, the mortgagee, for the benefit of Rebecca Weisel. The judgment in the creditor’s action determines nothing contrary to that finding] but it does adjudge in terms that Weiser was a party to the intent to hinder, delay and defraud the creditors of Mrs. Weisel. • It must be taken then as a fact conclusively proved in this action that Weiser, the plaintiff here, w-as a party to the fraud of which Mrs. Weisel was guilty in conveying the premises to him, and that the consideration for the conveyance was the money "which Weiser had advanced upon this mortgage for her benefit. .
The judgment creditor’s action was brought about the 9th of April, 1896, that being the date on which the complaint was. verified. It was tried in February, 1897. At the time of the trial Weiser, as appears by his bill of particulars, had paid evérything that was due upon this mortgage, and the total amount of his payments, principal and interest, was $6,318j of which $3,700 of principal and $675 of interest was the consideration for his conveyance. He did not seek in the judgment creditor’s action either that the conveyance should be permitted to stand as security for the money advanced by him, or that he should be reimbursed what he had paid while.in possession of the premises to satisfy this incumbrance. If he had actually made these payments as a consideration for the conveyance and had not been actually guilty of the fraudulent intent, the proof of these payments would undoubtedly have required the court either to dismiss the complaint as to him, or if, for any reason, the court had determined that there were suspicious circumstances as to the fairness of the transaction,' so that equitably the judgment creditor should have been permitted to have. recourse to the property for the payment of his debt, it would have decreed that the conveyance to Weiser should stand as security for the amount of his advances, as was done in Dunlap v. Boyd (1 Johns. Ch. 478). But if the conveyance was fraudulent and Weiser was a party to the
This question, however, might have, been determined in the action brought by Wright to set aside the conveyance, and Weiser might have litigated there the question whether, as a purchaser in good faith, he was entitled to hold this conveyance either as the absolute owner, free from the lien of the mortgage, or, if not that, yet as an incumbrancer to the amount of the payments which he had made in good faith without intent to defraud. It is a well-settled rule that a judgment between two parties is conclusive, not only as to matters actually determined therein, but as to all matters which might have been determined in the action as inhering in or growing out of the alleged cause of action. (Bracken v. Atlantic Trust Co., 36 App. Div. 67; Reich v. Cochran, 151 N. Y. 122.) All questions as to the right of Weiser to have allowed to him the moneys which he had advanced as a consideration for this conveyance, or as payments made by him in good faith to diminish incumbrances upon the property, might have been decided in that action if a proper case had been made; and it was his duty to ask for such an adjudication. As he did not ask for it, the judgment there utterly precludes his obtaining it here, and the learned justice was right • in so determining.
But if the case were an open one and the judgment were not a bar in that regard, yet it undoubtedly is a conclusive adjudication that the conveyance by Mrs. Weisel to Weiser was made in fraud of her creditors, and that. both grantor and grantee were parties to that fraud. So much is directly adjudged by it. The determination of that fact was absolutely essential to the- rendition of the judgment which, without it, could not have been made. Weiser, therefore, started as against these parties upon the foreclosure of this mortgage with a determination conclusive against him that the conveyance which he received from Mrs. Weisel was fraudulent.
-The judgment of the court b.elow should, therefore, be affirmed, with costs.
Van Brunt, P. J., Barrett and O’Brien, Jj., concurred; Ingraham, J., concurred in result.
Judgment affirmed, with costs.'