FOLGER, J.

The judgment recovered by the plaintiffs was, as entered, for the recovery of the possession of the lands and premises described in the complaint, for damages for the withholding of the same, and for costs.

The defendant appeals therefrom, and to succeed in his appeal, he must show that the judgment is not warranted by the facts appearing on the trial, or that there was some error in bringing them before the jury, or in the direction to the jury upon them.

So far as the judgment is for a recovery of the possession of the premises, it is sustained by the facts. The judgment roll in the former action, put in evidence on the trial of this action, showed an adjudication against the defendant, that the plaintiff therein was entitled to recover against the defendant the possession of the premises, and that possession thereof was awarded and adjudged to him. By that judgment the defendant is bound, and may not deny it. There was no objection made to the reading of the roll in evidence. It is now contended that the judgment cannot be evidence of title in the plaintiffs' grantor; and much is said to show that a judgment is not a mode now recognized by law for the conveyance of land. The appellant misapprehends the purpose and effect of introducing the judgment roll in evidence. It was not by it to create a title, but by it to prove that in a former action, to which the appellant was a party, a title out of him, and in the grantor of the plaintiff's ancestor, had been established. The judgment record did not create the fact. It was proof of the fact otherwise created; "where the issue is upon the fact, the record may be given in evidence to support that fact." (1 Gilbert on Ev., p. *28; Powell's Law of Ev., p. *244, 245; Pearce v. Gray, 2 Younge Coll., 322.) In the former trial, the title to the land having been at issue, if the judgment roll showed that there had been litigation, examination and determination of that issue, the defendant was bound by that determination, not as making title, but as showing, that proof had been made of title, and an adjudication of the sufficiency thereof. It now acts as an estoppel upon the defendant, to deny that there was sufficient evidence in that action on which to base that adjudication. No point was made that the remedy was by writ of possession under that judgment, instead of by this action, to enforce the right of possession adjudged by it. Nor is the reliance of the defendant upon the statutory right of redemption for six months after execution of writ of possession, available against the effect of the judgment roll as evidence. (2 R.S., p. 506, §§ 33, 34.) Whatever the relative rights of the parties to the action after judgment, by force of any statute, the judgment roll is yet evidence of what was adjudicated, and so far a basis of judicial action in subsequent suits between the same parties or their privies. If it shows a title in fee adjudicated, it gives reason for a verdict of recovery of possession under such title. No attempt was made, save by testimony hereafter to be considered, to show that the right of possession did not still exist. If, then, the plaintiffs had succeeded to that right, they are entitled to the judgment which they have now obtained, viz., that they do recover possession of the lands and premises. They succeeded to the right therein of Peter Cagger, their ancestor. By the instruments of transfer from Kidd to him, and from William P. Van Rensselaer to Kidd and him, he obtained all the right which Van Rensselaer had by virtue of the judgment. The criticism made upon the terms of those instruments, by the appellant in his statement of facts, and in his second point, is not tenable. Those instruments transfer all the estate, etc., of the assignors, in the lands described in the indenture to Whitbeck; all the estate, etc., which was reserved to Stephen Van Rensselaer, in that indenture; all the estate in the indenture and the rents reserved or granted by it; all right to any rent or money due thereby and in arrear; any judgment or security obtained or taken for rent; any rights or title by fee-simple vested in Van Rensselaer, by any re-entry since the 5th of March, 1858; and it is declared that the instrument is named by way of description, and all rights, estates, interests, claims, actions and demands, in and to the lots, lands, rents, tenements and hereditaments are granted, conveyed and assigned. It cannot successfully be claimed, that Cagger did not in his lifetime obtain and have, all the right which the plaintiff in that judgment had, against the defendant therein and herein, and in and to the lands and the possession thereof, named in the indenture. The death of Mr. Cagger intestate, devolved upon the plaintiffs all the right which he had in his lifetime, subject to the right of dower of his widow, their mother. Among the rights of the plaintiffs thus acquired, was the right to possession adjudged in the former action. And these rights, so far as the minor plaintiffs are concerned, are enforceable in this action by their mother as guardian in socage. ( Holmes v. Seely, 17 Wend., 75.)

These views dispose of the motion made by the defendant at the Circuit for a nonsuit, on the resting of the plaintiffs, so far as the points then taken are argued in this court. It did not matter on that motion, if the plaintiffs had a right of immediate possession, upon what estate or title in the lands it was based. The points made were not based upon the allegations in the pleadings (one of which was that the plaintiff had a title in fee); and a right to possession having been shown, there was not, for any reason advanced by the defendant, such a failure to make out a case as to warrant a nonsuit.

The plaintiffs had showed their title to whatever estate or interest in the premises Wm. P. Van Rensselaer once had by the conditions and covenants in the indenture, and by the judgment against the defendant. This certainly included a right to the possession of the lands under some title and for some purpose.

The next step in the trial brought to notice the contract between Kidd and Cagger and Walter S. Church. It is claimed that, by reason of this, Cagger had no interest greater than that of mortgagee. It is not necessary now to question but that Church, by that agreement, had an equitable right, enforceable against Kidd and Cagger, or Cagger alone. But the legal interest was in Kidd and Cagger at first, and then in Cagger, and now in the plaintiffs. These holders of the legal interest were from time to time, respectively, the persons capable of enforcing it against the defendant. They represented to him and to the world the legal right and title which Wm. P. Van Rensselaer had transferred. They could and can enforce that right. The enforcement will be for the benefit of Church, so far as his contract is valid, and gives him benefit. But the defendant cannot interpose an equitable interest of Church to defeat the legal right of the plaintiffs.

All the questions growing out of the introduction in evidence of the writ of possession, and the return to it, and the offer of evidence in contradiction of the return, are of no moment here; they were all immaterial. The right of the plantiffs to recover was not affected either way by the evidence received, nor could it have been by that rejected. Their right depended upon the judgment in the former action, and upon the indenture and its conditions, and the action of their assignor availing himself of the benefit of those conditions, by way of re-entry and forfeiture.

The defendant asked that certain questions be submitted to the jury. We do not think that it was error to refuse. Under the evidence, there was no ground for maintaining that the rents had been paid. The receipts and satisfaction-piece had been signed by Cagger. The testimony of Church was uncontradicted, that there had never been a delivery of them, nor any right to a delivery. That they were in the hands of the defendant was not sufficient to make an issue of fact as against that testimony, fortified and sustained as it was by the former suit between Cagger and the defendant, which grew out of the same transaction. A verdict of a jury that the receipts and satisfaction-piece had been executed and delivered by Cagger to the defendant, as a consummation of a transaction between them, and that they showed payment of rents and satisfaction of judgment, would have been so contrary to the evidence as to have warranted the court in setting it aside for that reason. This is a test of the propriety of a refusal to submit a question to a jury.

There was no question of fact to be passed upon by the jury, for the determination of the question of law, whether the plaintiffs had any estate in the premises which descended to them from Cagger. That question depended alone upon the force of terms in written documents, and upon matter of record. It was a matter of interpretation and legal deduction.

The court directed the jury to find a verdict for the plaintiffs. There was not error in this. They were entitled, as we have seen, to a verdict for the possession of the premises.

The court directed the jury to find that the plaintiffs were entitled to an estate in fee in the lands. If the appellant is right in the position taken by him, that a recovery in ejectment is but a recovery of possession, and not of the seizin or freehold, without prejudice to the right, as it may afterward appear between the parties, then he is not injured by this direction of the court or by the verdict of the jury in obedience to it. The judgment entered upon the verdict is for the possession only. But we do not agree with the position of the defendant. As we understand the purpose of the Revisers and the statutes passed by the legislature, the action of ejectment now tests not only the right to possession, but the title under which the right exists. The plaintiff is required to state in his pleading whether he claims in fee for life or years. (2 R.S., 304, § 10.) The verdict shall specify the estate which shall have been established on the trial by the plaintiff whether in fee for life or for years. (Id., 307, § 30.)

Every judgment rendered upon a verdict shall be conclusive as to the title established in the action against the party, and all persons claiming under him. (Id., 309, § 36; Code, § 455; and see Sheridan v. Andrews, 49 N.Y., 478.) And so it is with a judgment entered upon the report of a referee, or the decision of a judge trying a cause without a jury. (Laws of 1862, chap. 485, p. 977.)

We have to revert to the judgment roll, to ascertain whether the court was right in giving the direction to find a title in fee in the plaintiffs in this action. The former action was tried by a referee. In the judgment entered upon his report there is no mention made of the title of the plaintiff, more than there is in the judgment in this action. In the report of the referee there is not specific expression that the plaintiff has a title in fee for life or for years. The complaint in that case makes a claim to a title in fee, and bases it upon averments, of the conditions in the indenture, that if any covenant or prior condition should not be kept, the lessor or his heirs or assigns might re-enter, and again have, repossess and enjoy the granted premises as in the former estate, and expel the lessee and his heirs and assigns; and upon averments of the non-performance of the covenant to pay rent, of notice to the defendant of the intention of the plaintiff to re-enter, in pursuance of the act of 1846. (Laws of 1846, p. 369, chap. 274.) The answer of the defendant takes issue upon all these averments. The report of the referee finds upon the issue in favor of the plaintiff, specifically finding the covenant for the payment of rent, the condition that if the rent should not be paid for twenty-eight days after day of payment the lessor or his assigns might re-enter and have, repossess and enjoy the former estate, and expel the lessee and his assigns, and that the indenture should become void, on the non-payment of rent, and the giving of notice of re-entry by reason thereof. The report concludes, as matter of law, from these and other findings of fact, that the plaintiff is entitled to recover and to have possession. The report did find then, as fact, that there was a grant in fee of the lands, with a charge upon them of a yearly rent in perpetuity, to the grantor, his heirs and assigns, with clauses for an entry and for distress for rent. The interest in the rent owned by the grantor, as matter of law from those facts, was an estate in it in fee simple. (2 Wn. on Real Prop., 253 [*8]; and see Farley v. Craig, 11 N.J.L.R. [6 Halsted], 262.) It was such an interest in land as may be levied upon for the debt of him who owns it. (Id.; The People v. Haskins, 7 Wend., 463.) The appellant contends that there was no reversion of the estate. Let it be granted, for that is not the dispute which the respondents make. They claim a forfeiture of the estate of the appellant and his predecessor, and a restoration to them, as the assignees of Stephen Van Rensselaer, of the estate which he did possess and enjoy before and at the time of the execution by him of the indenture. The referee did find, as fact, that there was a right of re-entry and repossession of the former estate, and an avoidance of the lease or grant in fee. As a matter of law from this fact a conditional estate was constituted in the grantor (2 Wn. on Real Prop., 257 [*9]), and a right in him or his assigns to enforce it by action in ejectment. ( Marshall v. Conrad, 5 Cal., 364, 405; Van Rensselaer v. Ball, 19 N.Y., 104-106; The Same v. Slingerland, 26 id., 586; The Same v. Dennison, 35 id., 400.) There is found in the instrument a condition, which is in the nature of a forfeiture, which at law casts the whole estate upon the grantor whenever it is broken. ( Stephenson v. Haines, 16 Ohio St., 478.) There may have been, and probably was, the equitable right to be relieved against the forfeiture, but that is not now involved. And this conditional estate had this extent, by virtue of the terms of this indenture, that the owner of it might re-enter and his former estate have and hold, and the grantee quite oust; for the estate of the grantee is defeasible if the condition be not performed. (2 Inst. [Thomas' ed.], § 325, p. *3.) Here the appellant cites to us the cases of Havergill v. Hare (Cro. J., 510), and Jemot v. Cooly (Sir T. Raym., 135-158). But the distinction between those cases and this is well shown in Farley v.v. Craig ( supra; 11 N.J.L.R. [6 Halsted], 262). It rests upon the difference in the terms of the covenants and conditions. In those cases the right to hold on re-entry was only for so long as needful to get from the land the rents in arrear. By those terms there was created only an interest in the profits. The case is different here. The appellant is in error in his assertion that the right of re-entry gave only a usufructuary interest. Here the terms make a forfeiture of the land itself, and a restoration of the grantor's former estate and title. And see Jemot v. Cooly, as reported 1 Levinz, 170, where TWYSDEN, J., is stated to have said: "That if it was not for the words, and to retain till he be satisfied out of the profits, it would have been an inheritance in the land to remain in the heir as a penalty." Now this condition, in the instrument in this case, is a lawful condition imposed upon the estate of the predecessor of the defendant ( De Peyster v. Michael, 6 N Y, 497; Van Rensselaer v. Hays, 19 id., 76, 77), and obligatory upon the parties, and in default of performance the consequences imposed by the terms of the instrument must be endured, one of which is the right to re-enter and have again the estate formerly possessed by the party of the first part to the instrument. That was an estate in fee simple in the land. It matters not that the referee did not in terms express a conclusion of law to that effect. Such a conclusion is involved in the issues found by the pleadings. It flows necessarily from the facts found, and no fact is found which is hostile to it. We conclude, then, that the learned justice at the Circuit was not in error in directing a verdict of a title in fee simple in the lands in the plaintiffs.

The learned justice also directed the jury to find for the plaintiffs $850 for withholding the possession of the premises. Upon the exception taken to this direction the point is now made, that there was no testimony upon which a verdict for more than nominal damages for withholding possession could have been legally based. The exception taken was general and did not point out the specific difficulty now raised, which is, that testimony of the value of the annual use and occupation is not competent upon an issue of the amount of damages for withholding the possession of lands, though it is competent in an action for the mesne rents and profits. The case cited by the appellant, of Larned v. Hudson ( 57 N.Y., 151), does hold, that where testimony of the value of the use and occupation is offered upon the issue of the amount of damages, by withholding possession, an objection to the admissibility was good, and that an exception to a charge instructing the jury to consider such testimony upon that issue, was also good. But that case is not a precedent for this. There was no allegation in the complaint in that case of the value of the use and occupation. The only mention of damages was in the demand of judgment. The Code provides, that in an action to recover the possession of lands, a claim may also be made for the mesne profits. (Code, § 167.) The allegation in the second cause of action in the complaint in this action was, in substance, that which is required by the Revised Statutes for a suggestion on the record of a claim for mesne profits. (2 R.S., 310, §§ 44, 45; Yates' Pleadings, 195.) There was no objection to the testimony, (when it was received), which showed the value of the use and occupation, nor was the exception to the direction now complained of so pointed as to call the attention of the court and counsel to the position now taken. We do not think that the facts of this case bring it within the principle in 57 New York ( supra). It is true that the judgment entered herein does speak of the sum recovered as damages for the withholding of the possession. But that is not an error brought up by the exception. It is, indeed, an irregularity in the entry of judgment which would have been corrected on motion.

The judgment should be affirmed.

All concur.

Judgment affirmed.