Opinion
May, 1910.
Judgment affirmed, with costs, on opinion of Van Kirk, J., at Trial Term. All concurred, except Smith, P.J., who voted for modification of the judgment so as to strike therefrom the provision that it is upon the merits.
The following is the opinion delivered at Trial Term:
This action was regularly brought on for trial at an adjourned Trial Term of the Supreme Court held in Fulton county. The answer denied no allegations of the complaint, and the plaintiff rested upon the allegations in the complaint. The defendant put in evidence the bond and mortgage described in the complaint, and the case was submitted to the court. The action is brought to have declared null and void the mortgage described in the complaint and the same discharged from record. The plaintiff has not shown facts sufficient to constitute a cause of action to secure the relief demanded or any relief in equity. The deed of the premises made by the plaintiff to William Yocum and Mary Yocum is acknowledged on the 16th day of November, 1904. The mortgage made by William Yocum and Mary Yocum to the defendant Ellen Hall is dated November 18, 1905, and is acknowledged on the same day. On the 11th day of November, 1907, the complaint alleges that the plaintiff brought an action against William Yocum and Mary Yocum to recover possession of the real property described in the several instruments set forth herein and recovered judgment in her favor against the defendants awarding her complete possession of the property, restoring her to her former estate therein and declaring her the sole owner in fee therein, which judgment was entered in the clerk's office of Fulton county on the 13th day of February, 1908. The defendant Ellen Hall was not a party to that action and consequently is not bound by the judgment or decree. There are no allegations in the complaint showing why the mortgage is void and why it is not a valid lien upon the premises described in the complaint. The defendant is entitled to a judgment dismissing the complaint upon the merits, with costs. A decision may be prepared and presented directing judgment accordingly.