#### Robert Boyd, Plaintiff, *v.*David Boyd, Individually, and as Administrator, etc., of Samuel Boyd, Deceased, et al., Defendants.

(Supreme Court, New York Special Term,

March, 1899.)

1. Action to establish an equitable title to premises redeemed from a sale on execution — Final order,' in summary proceedings taken by one who redeemed illegally, only establishes the validity of the sale.

An action to establish an equitable title in one who alleges that he with his own money redeemed his land from an execution sale with the consent, in the name and under the judgment of another, whom he had made his judgment creditor in order to redeem, is not defeated by a final order in summary proceedings taken against him by one who about eighteen years later redeemed the same premises illegally while claiming as administrator of the judgment creditor under whose judgment the first redemption was made, as the final order merely establishes the validity of the sale on execution and when the owner, as the fact was, stayed the warrant in summary proceedings by an affidavit claiming title subsequent to the sale, i. e., his redemption therefrom, the effect necessarily' was to put the administrator to an action of ejectment in order to recover the premises.

*2.*Same —Pending action of ejectment not a bar.

The pendency of such an action of ejectment is not a Bar to such an equitable action, in which the plaintiff seeks to compel the administrator to deed to him and also to compel an attorney who managed the first redemption to surrender an assignment of the certificate of sale which is alleged to have been subsequently executed to the plaintiff by the judgment creditor, as no relief could be given in the action of ejectment and the judgment therein would be valuable only as an estoppel.

3. Same — Former adjudication. .

Where, however, in a former action in another court of record between substantially the same parties the material issues, whether the plaintiff redeemed with his own money and for his own benefit, under his creditor’s judgment and with his consent, have been decided against the plaintiff on the merits, that judgment is a bar to the equitable action.

*680Action in equity to restrain the further prosecution of the ejectment action, and to establish plaintiff’s equitable' title.

Henry Daily, Jr., for plaintiff.

Johnston & Johnston (Eugene D. Hawkins and Edward W. S. Johnston, of counsel), for defendant David Boyd.

Mattice, J.

In 1872 plaintiff became the owner and entered into possession of certain real estate. He has remained in possession ever since. In the same year the United States recovered a judgment against him in an action in the Circuit Court for the Southern District of New York. May 18, 1874, the United States marshal sold the real estate by virtue of an execution issued upon such judgment, and the premises were bid in by the marshal.

In June, 1874, one Samuel Boyd recovered a judgment against this plaintiff in an action in the late Court of Common Pleas. Samuel Boyd was a nephew of plaintiff and had for many years resided with him, and continued to so reside until his death in 1883.

On the last day of the fifteen months in which the holder of a subsequent judgment could redeem, the plaintiff redeemed the premises with his own money, but in the name of Samuel Boyd, and by virtue of Samuel’s judgment, but did not take a certificate of redemption. At the time of such redemption it was understood between the plaintiff and Samuel Boyd that the redemption was for the benefit of the plaintiff.

As before stated, Samuel Boyd continued to live in the family of plaintiff until his death about eight years later. Hothing further was done until about ten years after Samuel’s death, and in 1893 when the defendant David Boyd was appointed his administrator. Shortly after his appointment as administrator, he procured an order from the said Circuit Court upon notice to the marshal, but without notice to the plaintiff, requiring the marshal to execute and deliver to the administrator a certificate of redemption and a deed.

After receiving such certificate and deed the administrator in-' stituted summary proceedings in the Second District Court of the city of Hew York, to recover possession of the premises under section 2232 of the Code, upon the ground that the plaintiff held over and continued in possession after the premises had been sold by virtue of the execution, issued upon the judgment obtained as aforesaid by the United States, and after title thereto had been *681perfected under such sale, and after due notice to quit had been given.

The plaintiff, although duly served, did not answer in that proceeding and a final order was duly made awarding to the petitioner, the administrator David Boyd, the possession of the premises. Before the dispossess warrant was issued a stay thereof was effected under section 2254 by the defendant (this plaintiff paying the costs of the special proceeding and dehveiring to the clerk of the court an affidavit to the effect that he claimed possession by virtue of a .right or title acquired after such sale. He also delivered the undertaking required by the section.

While the dispossess proceedings were pending the plaintiff commenced an action in the late Superior Court of the city of Hew York, against the defendant David Boyd, as administrator, and one Malcolm Campbell, the attorney who acted for the plaintiff when the property was redeemed from the sale in 1874, to restrain the summary proceedings, and to compel Campbell to deliver to plaintiff an assignment of the certificate of redemption alleged to have been executed by Samuel Boyd in his lifetime to the plaintiff, but wrongfully withheld by Campbell, and also to compel the defendant David Boyd to assign the certificate and deed obtained from the marshal, pursuant to the said order of the Circuit Court in 1893, and that he be compelled to execute and deliver to plaintiff a deed of the premises. The complaint contained the averments sufficient and proper to obtain such relief. The defendants interposed answers denying the material averments upon which the plaintiff’s right to maintain the action rested. The issues Avere thereafter tried and a judgment duly rendered on the 11th day of January, 1894, dismissing the complaints on the merits.

The defendant David Boyd then, and within six months after the warrant was stayed in the summary proceedings by delivering the affidaAdt and undertaking as aforesaid, commenced ait action in ejectment in the late Court of Common Pleas against the plaintiff to recover possession of the premises. After the issues Avere joined in that action by the service of an answer by this plaintiff, in which he alleged, as legal and equitable defenses, the same facts which he has averred in his complaint herein, the plaintiff commenced this action on the equity side of the court, to restrain the further prosecution of the ejectment action and to establish his equitable title. A temporary injunction order was granted herein staying proceedings in the ejectment action until the determination of this action.

*682The defendants interpose certain denials and plead the final order in summary proceedings in the District Court as a bar to the right of the plaintiff to maintain the action. They also plead the judgment in the Superior Oourt action as a former adjudication and bar, and the pendency of the ejectment action as a bar.

The defendants in addition plead the Statute of Limitations, the Statute of Frauds and the Statute of Uses and Trusts.

The amendment in 1893 to section 2244 of the Oode permits the person to whom the precept is directed in summary proceedings to set up equitable as well as legal defenses. This amendment materially enlarged the power of the District Court and authorized it to consider equitable defenses. The amendment did not malee the District Court a court of equity, or confer upon it the power to grant affirmative, equitable relief, but it did enable such court to pass upon equitable defenses to the extent of defeating a recovery by the petitioner.

In every common-law action the defendant may interpose as many legal and equitable defenses as he has. § 507, Code Civ. Pro. Equitable defenses may be urged as a defense in actions at law, for the purpose of defeating a recovery by the plaintiff, but the consideration and determination of such defenses by a court of law do not make it a court of equity.

Conceding, therefore, that this plaintiff was entitled to shield himself and his right to the possession of the premises in that summary proceeding by the interposition of equitable defenses, yet he was-not bound to do so.

The final order in summary proceedings to recover possession of lands in a case of this kind is not necessarily conclusive upon the person holding over, as to any fact, except the regularity and validity of the sale, for the reason that the Code (§ 2254) gives the person holding over, not only the choice of two remedies, but gives him the right to avail himself of both remedies. It is not in theory unlike an action in ejectment where two trials may be had on payment of the costs of the first trial.

The person holding over, where the petitioner institutes summary proceedings claiming title perfected by virtue of a sale under execution, may appear and interpose his legal and equitable defenses, or he may lie by and permit the final order to be made against him.

In either case the Code permits him, after the final order is made and before the warrant to dispossess is issued, to pay the costs *683-of the proceeding, deliver to the clerk of the court an affidavit stating that he claims possession of the premises by reason of a right or title acquired after the sale and to deliver an undertaking to the petitioner to the effect that he will pay any costs or damages which may be recovered against him in an action of ejectment to recover the property brought against him by the petitioner within six months thereafter, and that he will not commit any waste or injury to the property during his occupation.

Such action on the part of the person holding over effectually disposes of the summary proceedings and renders the final order entirely valueless, except that it is conclusive as to the regularity and validity of the sale. The petitioner is then compelled to bring an action of ejectment in order to obtain possession.

On the trial of the action of ejectment the person holding over would be permitted to show his right to the possession of the property by reason of a right or title acquired after the sale.

In this action all parties concede the regularity and validity of the sale of the premises made by the marshal May 18, 1874, under and by virtue of the execution issued on the judgment recovered in favor of the United States.

The plaintiff claims to maintain this action by virtue of a right acquired fifteen months after the sale by the marshal, and hi& right, if any, depends upon what took place at that time.

The summary proceedings, therefore, are no bar to the right of the plaintiff to maintain this action.

The section giving him the right to stay the warrant by the delivery of an affidavit that he claims possession by virtue of 'a right or title acquired after the sale, impliedly and of necessity gives him the right to set up as a defense in the action of ejectment any legal or equitable right or title which he may have acquired after the sale, or any matter or thing occurring after the sale by which his former title would be freed.

Having the right to set up such matters as a defense to the action of ejectment, logically he would have the right to litigate those questions in this action, unless prevented by reason of the pendency of the ejectment action.

I do not think the pendency of the ejectment action can be held to be a bar to the maintenance of this action. It is quite true that in such action this plaintiff can urge as equitable defenses all the allegations upon which he bases his claim to relief in this auction. The only relief, however, he could obtain in the *684ejectment action would be a negative one — judgment dismissing the complaint, and whatever force such judgment would have as an estoppel.

If the plaintiff’s contention is right and he is entitled to recover at all in this action, he is entitled to more comprehensive and adequate relief than that which could be afforded him in the ejectment action. He would be entitled to affirmative relief setting aside the certificate of redemption, the marshal’s deed, removing the cloud upon his title, establishing his own title affirmatively, restraining further prosecution at law and thus affirming and quieting his title to' the property. It is well settled that under such circumstances an action in equity will lie, notwithstanding the pendency of an action at law.

The difficult question to determine is, whether the Superior Court judgment is a bar to the plaintiff’s right to maintain this action. In that action the plaintiff proceeded upon the theory that the attorney who made the redemption for him upon Samuel Boyd’s judgment took from the marshal a certificate of redemption and that Samuel Boyd had duly assigned the certificate of redemption to the plaintiff; that such papers Avere in existence and Avrongfully Avithheld from the plaintiff by such attorney; and the plaintiff sought to establish his title to the premises by showing the existence of such written assignment and to compel the delivery thereof to him, and to set aside the certificate of redemption and deed made many years later by the marshal to the administrator of Samuel Boyd pursuant to the order of the said Circuit Court.

In that action the plaintiff alleged in substance that after the sale of the premises he permitted Samuel Boyd to obtain the judgment against him, and that his attorney advised him to permit a redemption of the property to be made in the name of Samuel Boyd. That the redemption was made Avith the plaintiff’s money in the name of Samuel Boyd for the sole benefit of the plaintiff; that thereafter Samuel Boyd executed an assignment or conveyance of his interest in the premises he had acquired by reason of such redemption. That such assignment was delivered to the attorney for the purpose of filing and recording and for the purpose of having the title transferred to the plaintiff.

The complaint also sets forth that on August 25th the defendant David Boyd notified the tenant of said premises to quit the premises on September 8, 1893, “ and all of this was fraudulently *685done with the knowledge that the said premises had been redeemed with the money of this plaintiff and that an assignment had been made by Samnel Boyd during his lifetime.”- It set up the certificate of redemption and deed subsequently given by the United States marshal to David Boyd, as administrator, pursuant to said order of the Circuit Court. The plaintiff demanded that Campbell be compelled to deliver to the plaintiff the assignment of the certificate of redemption and the deed made by Samuel Boyd during his lifetime to the plaintiff, or that he file and record the same and that David Boyd be ordered and directed to “ transfer or assign to the plaintiff the certificate of redemption or deed obtained by him from Fiske, late marshal as aforesaid, and that he make, execute and acknowledge and deliver to the plaintiff title to such premises hereinbefore described;” that the defendants and each of them be restrained and enjoined from commencing any action, suit or proceeding upon such certificate of redemption or deed issued by such marshal, and that the defendants be restrained from proceeding in the summary proceedings in such District Court.

The answer of the defendant Boyd put in issue the material allegations of the complaint, and also alleged -as a separate defense the recovery of the judgment in favor of the United States, the issuing of the execution thereon, the sale of the premises, the purchase by the marshal, the execution by the marshal of his certificate of sale, the redemption by Samuel Boyd upon his judgment; that no certificate of redemption was issued to Samuel Boyd in his lifetime; the subsequent issuing of the certificate of redemption and deed by the marshal to David Boyd, as administrator, and that the plaintiff was in- possession of the premises and ■wrongfully withheld them from the defendant.

The trial judge found as matters of fact that the redemption of the premises were made by Samuel Boyd upon his judgment and by no other person. That the marshal duly executed August 25, 1893, a certificate of redemption; that the defendant David Boyd became entitled to receive a conveyance of the lands and premises redeemed. That on August 25, 1893, the marshal duly executed, acknowledged and delivered to the defendant David Boyd as such administrator a conveyance of the lands and premises so sold and redeemed. That Samuel Boyd did not, in his lifetime, execute and deliver to the plaintiff or any other person a certificate of redemption, nor conveyance, or any *686conveyance of his interest in the premises so redeemed. He also-found as a conclusion of law that the complaint should be dismissed upon the merits. Judgment was accordingly entered.

- I conclude that the judgment in the Superior Court action is a bar to the plaintiff’s right to maintain this action. Every essential material matter involved in the issues in this action was of necessity comprehended and involved in the determination of the Superior Court action.

In Pray v. Hegeman, 98 N. Y. 351, Andrews, J., stated the rule to be *“*that the estoppel of a former judgment extends to every material matter within the issues which was expressly litigated and determined, and also to those matters which, although not expressly determined, are comprehended and involved in the thing expressly stated and decided, whether they were or were not actually litigated or considered. It is not necessary to the conclusiveness of a former judgment that issue should have been taken upon the precise point controverted in the second action. Whatever is necessarily implied in the former decision, is for the purpose of the estoppel deemed to have been actually decided.”

After restating this rule in Reich v. Cochran, 151 N. Y. 122-128, Martin, J., says, *“*This rule has been fully indorsed by the subsequent decisions of this court, as will be seen by an examination of the cases of Griffin v. L. I. R. R. Co., 102 N. Y. 452; Campbell P. P. & N. Co. v. Walker, 114 id. 12; O’Rourke v. Hadcock, id. 353; Hymes v. Estey, 116 id. 509, and Thomson v. Sanders, 118 id, 257.”

The question whether the plaintiff in that action was, or was not, entitled to an adjudication that he was the owner of the premises, and that the marshal’s certificate of redemption and deed given to-the defendant as administrator should be set aside, comprehended and involved the vital question in this action, to-wit: Did the plaintiff actually redeem the premises with his own money, for his own benefit by virtue of Samuel Boyd’s judgment, and with his consent?"

The Statute of Frauds and the Statute of Uses and Trusts, so elaborately discussed and persistently urged by the defendants’' counsel as defenses to this action, have no application. The mere fact of the sale under execution and the failure of the plaintiff to-redeem as owner within twelve months, did not operate to divest the plaintiff of his legal title.

The fact that Samuel Boyd permitted the plaintiff to use his-judgment to redeem the premises within the fifteen months for *687plaintiff’s benefit, certainly did not vest Samuel with the title to the premises, nor did it entitle him to demand and receive a deed.

Under such circumstances Samuel Boyd had no legal or equitable interest in the premises. The marshal having accepted payment from the plaintiff had no further legal or equitable interest therein. Neither .was such action on the part of the plaintiff a fraud upon the marshal. The plaintiff had the right to create a subsequent judgment creditor for the purpose of redeeming the premises after the twelve months had expired. Cone v. Niagara Fire Ins. Co., 60 N. Y. 619.

A judgment debtor whose land has been sold by virtue of an execution cannot be divested of the legal title until the expiration of fifteen months from the sale, and not then until the deed is actually given. Case last cited.

Having paid the marshal, under such circumstances, before the expiration of the fifteen months, the right of the marshal to divest him of his title by giving a deed after the expiration of that time, was taken away.

No affirmative action, therefore, was necessary on the part of Samuel Boyd in order to confirm the plaintiff’s title. No trust was created, and no parol agreement was made creating an interest in land. No attempt whatever is made to establish by parol any agreement condemned by the statute. In fact no effort is made to enforce any executory contract resting in parol. The plaintiff never was divested of his title until the defendant David Boyd, as such administrator, wrongfully and without notice to the plaintiff obtained the certificate of redemption and deed from the marshal nearly twenty years after the redemption took place, and when neither the marshal had the right to make nor the administrator to take the deed.

As before stated, the object of this action is to set aside that certificate and deed on account of the wrongful act of the administrator in obtaining it. "When once set aside the legal title immediately vests in the plaintiff. The circumstances attending the redemption determine whether the administrator had a right to receive the deed.

It follows that the plaintiff’s right to the relief demanded in his complaint would be complete but for the bar of the Superior Court judgment.

The doctrine of estoppel, so firmly established upon principle and authority, cannot be disregarded to meet the supposed exigencies *688of a particular case. The plaintiff has had his day in court and must abide by that decision.

Counsel for defendant will prepare formal decision and judgment in accordance with the foregoing views, which may be settled on five days’ notice. The question of costs may be reserved until such settlement.

Ordered accordingly.