Baker v. Byrn

PRATT, J. We think that this demurrer was properly overruled. This disposition of the case does not militate against the application of the general rule that a judgment between the same parties cannot be attacked collaterally. The precise point here is that this judgment is not between the same parties, and this is not a collateral attack. The purchaser, Marcus- L. Byrn, who is now in possession of the land which plaintiff claims to own, and which he undoubtedly at one time did own, was not a party to the foreclosure suit. He bought at the foreclosure sale with notice, as plaintiff alleges, of the fraud of which plaintiff complains. Plaintiff alleges that he bought the premises in question subject to a mortgage held by Bowne, which Bowne subsequently assigned to Reid, and that he paid off the mortgage debt, principal and interest, to Reid or his representatives; that Reid did not record his assignment, nor did plaintiff, and the satisfaction piece was not filed; that in 1887, nearly 20 years later, defendant Albert Byrn, with intent to cheat plaintiff, procured an assignment of the mortgage from Bowne, which he recorded, and thereupon began the foreclosure suit, making plaintiff a party defendant and proceeding by publication; that plaintiff was never served with process, and heard nothing of this suit until long after the foreclosure judgment and sale,—indeed, until just prior to the commencement of the present action; that the premises were sold, and were purchased by defendant Marcus L. Byrn, - who was not a party to the foreclosure suit, but who purchased with knowledge of the facts on which plaintiff relies, etc. Of course, plaintiff might have appeared in the foreclosure suit, if he had known of it, and, on proof of his present allegations, would have beaten that plaintiff. But he did not know of that suit. On his allegations the institution of the suit—indeed, the procurement of the assignment from Bowne on which it was based—was a fraud upon him. The entry of the judgment in his absence and without his knowledge was no less a fraud, and still operated as a fraud. True, as against that plaintiff, he might obtain relief by motion in that suit. But the purchaser under that judgment is now entitled to be heard, not simply on affidavits and in the usual haste of a motion, but deliberately, with that care and consideration which we give to trials, especially trials involving allegations of fraud. If plaintiff had sued Marcus L. Byrn in ejectment very likely he would have been estopped by this judgment in foreclosure. He is bound to take no such risk. He by this action attacks this judgment and proceedings thereunder directly. They give color of title to his property, and, if valid, one of these defendants may deprive him of his property. We feel clear that such an action is proper, both in principle and authority. Judgment affirmed, with costs, but with leave to answer within 20 days on payment of costs. BROWN, P. J., concurs.