Opinion
July Term, 1903.
Thomas Nelson, for the motion.
Charles Strauss, opposed.
Were it not for the new trial which we think should be had in this case, and upon which many of the same questions now before us for consideration will be presented, we might content ourselves with stating one ground which is fatal to the judgment. To the end, however, that we may relieve the work of the trial judge, we deem it necessary briefly to refer to some of the other questions presented upon this record and which in all likelihood will again be urged upon such new trial.
The defendant, in the effort to support his title, alleged and sought to prove as a defense a former adjudication. In this connection he sought to introduce, not alone the judgment roll in the Struppmann v. Muller action in the Superior Court, under which the referee sold and the defendant purchased the property, but also the judgment rolls in two other actions which were brought to set aside such judgment. These were excluded, and we think, properly, because, to establish the defense of res adjudicata or to take advantage of the former judgment as a bar, it is necessary that it should appear that the parties and the issues in the action were the same, and that the question which it is proposed again to litigate was necessarily involved or decided by the former judgment. These features were absent in the judgment sought to be used as a bar. Both actions were brought in the Superior Court to set aside the Struppmann v. Muller judgment upon the ground, in the first action, of fraud and conspiracy generally; and in the second action, that so far as it awarded any benefits to Thomas H. Young it was the result of fraud or conspiracy between the attorneys. It is true that in such actions there were allegations that the Struppman judgment was obtained without jurisdiction and was void; but the real issue tendered and litigated and decided was fraud; and upon the ground that no fraud was shown the court dismissed the complaints without determining the other jurisdictional questions. This action in ejectment presents an entirely different issue, and it requires no extended argument to show that the two judgments in the fraud actions would have no material bearing thereon; nor did they in any way tend to prove that in one or more other actions between the same parties the validity of the Struppman v. Muller judgment was assailed, and the decisions were adverse to the plaintiffs.
Another exception urged by the defendant was taken to a ruling admitting the testimony of Thomas Young as to his notifying the defendant Naumann before he took title that it was defective, and the latter's reply that as he was obtaining a bargain he would take title whether or not it was good. This evidence, we think, was properly admitted, because it is always competent to show not only constructive notice which a party gets from public records, but also actual notice which is brought home to him as to the condition of the title. Such notice has a direct bearing upon the question as to whether one has purchased in good faith without notice, which in certain contests relating to title it is material and important to show.
The further contention of the defendant that the judgment in Struppmann v. Muller is conclusive as establishing his title and that the same cannot be attacked in this action, is equally without force. The plaintiffs having shown that under the will of their testator this property was devised to them, it was incumbent upon the defendants to establish that, pursuant to a valid judgment, the plaintiffs had been divested of their interest. And when the defendant Naumann resorted to the title which he had acquired under the Struppmann v. Muller judgment, it was competent for the plaintiffs to assail such judgment by any evidence tending to show that it had been obtained without jurisdiction and was consequently void. With respect, of course, to all irregularities that might have occurred in the proceedings, these would not be available nor would they affect the validity of the judgment; but matters which related to the jurisdiction of the court over the parties or the action could be proved.
In addition to the rulings upon the admissibility of evidence upon the part of the learned trial judge, which we think were right, we are next brought to a consideration of the question which arises with respect to the validity of the judgment in Struppmann v. Muller upon which the defendants' title rests. The plaintiffs assail this judgment upon many grounds; among others, that the Superior Court was without jurisdiction to entertain the action and that its judgment was, therefore, void; that the sale having been made contrary to the provisions of the will and in violation of the provisions of the Revised Statutes (2 R.S. 195, § 176), the judgment ordering said sale was void; that the Superior Court was without power to consolidate the action pending before it with another action ( Young v. Langbein) pending in the Supreme Court, and that after the sale the court was without power to amend the judgment roll and add new findings of fact and law. In addition, we have a number of other questions, which, upon the record, are presented as to whether or not the proceedings in the action were of a character such as to give the court jurisdiction. These relate to the failure of the plaintiff Charles Struppmann in that action to obtain leave to bring the suit on behalf of certain infants, or to proceed with it without having given security as guardian for such infants, and without its having been made to appear that the action was one for the benefit of the infants. There are thus presented questions which have been frequent of late as to the distinction in actions brought for the sale of real property between irregularities and jurisdictional defects. ( O'Donoghue v. Boies, 159 N.Y. 87; Parish v. Parish, 175 id. 181; O'Donoghue v. Smith ( 85 App. Div. 324).
Without specifically pointing all of them out, we think that some of the defects relied upon were jurisdictional and fatal to the judgment — such as the effort to amend the judgment roll after the sale by making additional findings, and the failure of the guardian to obtain the right to sue on the infants' behalf and to give the security as required by the statute (Laws of 1852, chap. 277). It will be seen, therefore, that as to the force and effect to be given to the judgment in Struppmann v. Muller, we have reached the same conclusion as the learned trial judge, and this would lead to an affirmance of the judgment were it not for a feature to which we have already adverted, and for which, we think, there should be a new trial.
The report of the referee shows that after deducting expenses, general liens, incumbrances, which included a small mortgage made by the testator, and allowance to attorneys, the balance remaining in his hands was turned over to the plaintiff Charles Struppmann, personally and as administrator, to Thomas Young, individually and as administrator, and to the general guardian of A. and L. Muller. The question of confirming this report came on regularly before the Special Term of the Superior Court, and with some slight modifications, to which it is unnecessary to refer, the distribution of the proceeds of the sale reported by the referee was sanctioned by the order which confirmed the referee's report. We do not see why the receipt of the defendants' money, which was paid upon the purchase of the property, even though the judgment itself may have been void, should not estop the plaintiffs, or, at least, all of them but the infants. It cannot be, to take the most striking feature of this case, that Charles Struppmann, who was the plaintiff in the action in which the judgment was obtained under which the property was sold, and who, after getting a judgment, sold the property to a stranger, will be permitted to come into court, after having taken and appropriated the money to his own use, and be heard to assail the judgment which he himself procured and in which he obtained the defendants' money.
What has been said with respect to Struppmann equally applies to Young, who had brought an action for a similar purpose, which was consolidated with the Struppmann action, in which he obtained the defendant's money.
In regard to the payment of the general guardian of the infants, we do not see why that also was not conclusive upon such infants by way of estoppel. But as there is to be a new trial it is unnecessary to determine the question as to the validity of the appointment of the general guardian, the extent to which the receipt of moneys by him would bind the infants, or the extent of the pecuniary advantage which they derived from the process of the sale — all of which would have a bearing upon the question of their being estopped, as these can all be left for determination upon the new trial.
Upon the ground, therefore, that as to two of these plaintiffs, Struppmann and Kilblock, they are estopped by having received upon the sale of the land the defendants' money and should not be permitted to prosecute this action in ejectment, the exception to the direction of a verdict in plaintiffs' favor should be sustained and the motion for a new trial granted, with costs in favor of the defendants and against the plaintiffs Struppmann and Kilblock to abide event.
VAN BRUNT, P.J., PATTERSON and McLAUGHLIN, JJ., concurred; LAUGHLIN, J., concurred in result.
Exceptions to the direction of a verdict in plaintiffs' favor sustained and motion for new trial granted, with costs in favor of defendants and against the plaintiffs Struppmann and Kilblock to abide event.