Van Slyck v. Newton

Learned, P. J.: TJpon tbe pleadings tbe title and possession of tbe plaintiffs to tbe property are in issue. If, as against the plaintiffs, the Barnards bad title, and if tbe defendant took tbe property by tbeir authority, be is entitled to succeed in tbe action. Tbe plaintiffs’ mortgage was given to secure a prior liability. It has been decided tbat such mortgagees are not l)ona fide purchasers for a valuable consideration, as against one from whom tbeir mortgagor obtained tbe property .by fraud. (Woodburn v. Chamberlin, 17 Barb., 446.) In tbe case of Malcom v. Loveridge (13 Barb., 372), and similar cases cited by tbe plaintiffs, tbe mortgagee parted with value on tbe credit of tbe property. If it be proved then, in this action, tbat Stearns obtained tbe property by fraud from tbe Barnards, so tbat they could have recovered it from Stearns, and if Newton took it as tbeir agent, then tbe plaintiffs could not recover against Newton, any more than Stearns could have recovered against him. But, perhaps, it is not necessary to rely upon tbat principle to dispose of this case. Tbe question seems to be as to tbe effect of tbe judgment recovered in tbe case of tbe Barnards against Stearns and Yan Slyck, as evidence on tbe present trial of tbe title of tbe Barnards. Tbe complaint, in tbat action, averred tbe ownership of tbe property by tbe plaintiffs tbei’ein, and tbe possession and wrongful detention by tbe defendants. Tbe judgment, after proof taken, was tbat tbe. plaintiffs were tbe owners of tbe property, and entitled to retain it and to recover damages for tbe detention and costs. Tbe right of tbe plaintiffs, thus adjudicated, must have referred to January 28, 18Y6. Yan Slyck was a party to tbat action, and is bound by tbe result. As against him, it is adjudicated tbat on tbe 28th of January, 18Y6, tbe Barnards owned this property and tbat be was [557] wrongfully detaining it. If the rights which he now seeks to set up in this action were valid, as against the Barnards, they would have afforded a successful defense to that action. For if he, either alone or jointly with another, owned or was entitled to the possession of the property, that fact would, if shown, have defeated the Barnard action. That he was described in the title of the complaint as assignee, did not prevent him from showing any fact which would entitle him to possession, or would prove ownership in him. Yan Slyck, therefore, cannot recover against Newton for taking, as the Barnards’ agent, property which, as between him and them, has been adjudged to be theirs. The alleged title and ownership of Yan Slyck and Foote were joint. They were co-mortgagees, and they aver that as such they were in possession at the time of the alleged taking. The possession which Yan Slyck had was, as these plaintiffs aver, their possession. Whether or not the Barnard judgment was conclusive, against Foote, it was evidence against him (G-reenlf. Ev., § 171, et seg.), and the evidence was not contradicted; that is, there was nothing shown to contradict the title of the Barnards. When Yan Slyck was sued by the Barnards, if he was not solely in possession, and if he and Foote were in possession jointly, I do not see why Yan Slyck might not have averred a defect of parties defendant in his answer. (Wooster v. Chamberlain, 28 Barb., 602.) Thus Foote might have been brought in as defendant. The judgment should be reversed and a new trial ordered, costs to abide the event. Present — Learned, P. J., Bockes and Boardman, JJ. Judgment and order reversed, new trial granted, costs to abide event.