Opinion
January, 1905.
Burton C. Meighan, for the appellant.
Grenville T. Emmett, referee, respondent.
This appeal is from an order of the Special Term denying a motion for a stay of sale under an interlocutory judgment in partition, until an action in ejectment be finally determined. In 1895 and prior to the beginning of the partition suit, Georgiana Kennedy and Catharine Downing (who has since died intestate, whereby her interest, if any, is now vested in the said Kennedy) began an action in ejectment from the same premises, contending that Place, Rogers and Silleck were in wrongful possession, without title or interest. Place, Rogers and Silleck appeared and joined issue, asserting title. That action is at issue and undisposed of. In 1904 the defendant Place moved to dismiss the complaint because of the plaintiff's lack of prosecution, and because the judgment in this partition suit had determined the question of title. This motion was denied.
This partition suit was brought in 1899 by the said Place against the said Rogers, Silleck and Kennedy, Kennedy, it must be remembered, being now the sole plaintiff in the pending ejectment suit. Place complained "that as the plaintiff is informed and believes the defendants, Sarah Silleck, Georgiana Estelle Kennedy, John Tompkins and William H. Burckhardt, have no valid claim or interest in the said premises, but that they assert some claim or interest thereto, the precise nature of which is unknown to plaintiff, and that their said claim constitutes a cloud upon the title to the said premises, and, therefore, they are made parties to this action," and he demanded that judgment "for a partition and division of said premises according to the respective rights of the parties aforesaid be rendered; or, in case a partition thereof cannot be made without great prejudice to the owners, that the same may be sold by and under the direction of this court, and that the proceeds of the sale, after paying the costs and charges of this action, may be divided among the owners thereof, according to their several rights or interests therein; and to that end that the rights and interests of the parties interested in the said premises, or in the proceeds of the sale thereof, may be ascertained and determined by the judgment of this court, and for such further and other relief or judgment as may be just and equitable." Kennedy in effect pleaded her title, and demanded affirmative relief. Upon such pleadings the case was tried by jury and a verdict was returned in favor of Place, Rogers and Silleck. The interlocutory judgment declared that the title was in them, adjudged that the defendant Kennedy had no right, title or interest in the premises, and barred her therefrom forever, the judgment to be final and conclusive. Kennedy appealed from the interlocutory judgment, and we unanimously affirmed it. ( Place v. Kennedy, 89 App. Div. 167.) She thereupon appealed to the Court of Appeals, filing the usual undertaking of $500.
There is no question that the title of Kennedy could be tried and determined in the partition suit. ( Satterlee v. Kobbe, 173 N.Y. 91; Weston v. Stoddard, 137 id. 119.) That suit went to interlocutory judgment of partition and sale, which is the decree afforded by the statute, and which shall declare the right, share or interest of each party in the property so far as the same has been ascertained, and must determine the rights of the parties therein. (Code Civ. Proc. § 1546.) As no further decision as to the title is to be made, and no further judgment thereon is to be entered, I think that so far as that question is concerned the successful party may rest upon this interlocutory judgment. ( Allie v. Schmitz, 17 Wis. 169.)
The opposing affidavits on the motion made in the ejectment action are in this record, and it appears therefrom that Kennedy alleges title to the premises because she is the only legitimate heir of David Hains, and such is the title she pleads in the partition action. I am of opinion that the adjudication of title in the partition action is res adjudicata as to Kennedy. ( Masten v. Olcott, 101 N.Y. 153, 157; Jenkins v. Fahey, 73 id. 355, 360; Jordan v. Van Epps, 85 id. 427; Doolittle v. Don Maus, 34 Ill. 457; Fleenor v. Driskill, 97 Ind. 27; Hardy v. Beaty, 84 Tex. 562; Cole v. Hall, 2 Hill, 625, 627; Clapp v. Bromagham, 9 Cow. 530, 569; Leavitt v. Wolcott, 95 N.Y. 212; Herm. Estop. [2d ed.] 303, 307; Lahey v. Kortright, 132 N.Y. 450.)
The force of the judgment is not affected by the fact that it was rendered in a suit begun after another action, which likewise involved this same question of title. ( Casebeer v. Mowry, 55 Penn. St. 422; Duffy v. Lytle, 5 Watts [Penn.], 120; 2 Black Judg. [2d ed.] § 791.) A bona fide purchaser at the sale would be protected. (Code Civ. Proc. § 1323. See, too, Murray v. Berdell, 98 N.Y. 480, 485.)
The order should be affirmed, with costs.
HIRSCHBERG, P.J., BARTLETT and WOODWARD, JJ., concurred; HOOKER, J., dissented.
Order affirmed, with ten dollars costs and disbursements.