#### Ryerss and others *vs.*Rippey and another.

A *judgment in ejectment,*not vacated within three years pursuant to the statute, is *conclusive*only *upon the parti/ e-gait-sl u Um tic came is rendered*and all *claiming under him,*and is conclusive also only *as to thee title established in such action:*It was accobdikglT held in this case that a judgment in ejectment against *tenants*was not conclusive upon the *landlord,*although the latter retained an attorney to defend the suit brought against his tenants, especially as on the trial *the title*as between the *plaintiff*in the suit and the *landlord,*did not come in question.

This was an action of *Ejectment,*tried at the Yates circuit in November, 1839, before the Hon. Daniel Moseley, one of the circuit judges.

The suit was commenced in July term, 1838. The plaintiffs having adduced such evidence as they relied upon in support of their claim to recover the premises in question, and rested, the defendants proved that in October term, 1835, an action of ejectment was commenced against them by Herman H. Bogert for the recovery of the premises in question, they at that time being tenants of *John P. Ryerss,*the ancestor of several of the plaintiffs in this cause, and under whom such plaintiffs claim the premises ; that the suit was defended, issue joined therein, and a *verdict rendered*in favor of Bogert; upon which judgment was entered, a writ of possession issued, and they turned out of possession; and that subsequently they became, and at the time of the trial, *were the tenants*of Bogert. *JET. Welles,*Esq., testified that he was the attorney in fact of John P. Ryerss, and attended to his professional business; that application was made to him by the defendants to defend the suit commenced by Bogert; and he accordingly entered his appearance as their attorney, and defended the suit *with*
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      *the Jcnowledye of Byerss ;*but that *on the trial of the cause no defence was made,*for the reason *that Ryerss had failed to fur- [ *433 ] nish the necessary title papers and proofs ; and a verdict passed for the plaintiff. He further testified that he looked to the estate of Ryerss to pay his costs for defending that suit. Upon this evidence the counsel for the defendants insisted that the plaintiffs were concluded by the judgment in the action of ejectment prosecuted by Bogert, and were barred from maintaining an action for the recovery of the premises. The judge ruled otherwise, and the counsel for the defendants excepted. The jury found a verdict for the plaintiffs, and the defendants, on a *bill of exceptions,*moved at the last term for a new trial, on the ground that the plaintiffs were estopped by the verdict and judgment in the ejectment suit prosecuted by Bogert. There were various other questions raised in the bill of exceptions, and urged on the argument of the cause, which were all overruled by the court, leaving only the question of estoppel; in respect of which the court took time to advise.

*A. Worden,*for the defendants.

*H. Welles,*for the plaintiffs.

*By the Court,*

Nelson, C. J.

All the questions raised by the defendants were disposed of on the argument except that in respect to the conclusive effect of the recovery in favor of Bogert.

The section of the Revised Statutes relied upon by the counsel for the defendants, is as follows: “ Every judgment in the action of ejectment rendered upon a verdict, shall be conclusive as to *the title established in such action upon the party against whom the same is rendered,*and against all persons claiming from, through or under such party, by title *accruing after the commencement of such action,”*2 *R. S.*235, § 36. The next section provides that the court in which such judgment is rendered shall, within three years thereafter, upon the application of *the party against whom the judgment is rendered,*his heirs or assigns, and upon payment of all costs and damages recovered thereby, vacate the judgment and grant a new trial.

*It is plain the act applies only to the *party*or *parties to the*[ *434 ] *record,*and privies. The mere retainer of an attorney, or other acts by the *party in interest,*to defend the suit, does not bring the case within the act; nor should the application of the provision turn upon any such extraneous matters. The record of the suit should be the test, and must be as it respects the person against whom the verdict is rendered. This too, is consistent with the statute, 2 *R. S.*264, § 17, allowing the *land*
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      *lord*to come in and defend. On application to the court he *may he made defendant*with or without the tenant.

Independently of the statute, even if Ryerss had been made a defendant with the tenant, the verdict could not be conclusive upon him, as the question between his and Bogert’s title was not necessarily involved in the suit against the tenants. Bogert may have had their interest, or they may have been estopped from disputing his title; and in point of fact no question was made at the trial upon it. 8 Wendell, 35 ; 10 *Id.*85.

New trial denied.