#### ELEANOR TERRETT, Respondent, *v.*RANDALL G. COWENHOVEN, Appellant.

*Simmvwy proceedings*— *legal title only considered in*— holder *of equitable title not estopped then’eby*— *contract of sale.*

Where summary proceedings are instituted by a purchaser at an execution sale, before a county judge, in pursuance of subdivision 4 of section 28 of 2 Revised Statutes, 513, to remove a person holding over and continuing in possession of the real estate purchased, the judge has jurisdiction to pass upon the legal title only, and a judgment rendered therein does not estop a person removed thereunder, from subsequently asserting an equitable title to the land to which the legal title acquired by the purchaser is subject.

A. purchaser of real estate at an execution sale who has notice of the rights of a vendee in an executory contract for the sale thereof, takes the same subject to such rights, and an actual, visible possession by the vendee gives notice of his rights, whatever they may be.

Appeal from a judgment in favor of tbe plaintiff, entered upon a verdict dnected by tbe court.

Tbe action was commenced and tried in tbe City Court of Brook*321lyn, and the appeal was removed to this court, because two of the judges of that court were incompetent to sit.

The action was brought to recover certain lands, plaintiff’s title to which depended upon that of one Crombie, who had purchased the same, August 5, 1856, at a sale upon an execution, issued upon a judgment recovered against one Tunis T. Cowenhoven, July 12, 1853. The deed was made by the sheriff, November 18,1857. The defendant claimed to be entitled thereto by virtue of a contract of sale made by Tunis T. Cowenhoven to him on the 5th of April, 1851, for $10,000, of which $3,000 was paid down, and of a deed given in pursuance thereof on October 9,1855, recorded November 5, 1857. On March 20, 1858, Crombie instituted summary proceedings before the county judge of Kings county, to remove the. judgment debtor, the defendant and one William H. Cowenhoven from the land, and a warrant therefor was issued on April 12, 1859. On that day Crombie went to the premises and leased the same to Tunis T. Cowenhoven for six months from May 1, 1859, at a specified rent. On the fourth of April the defendant signed the following agreement:

“ Whereas, James Crombie has this day leased to Tunis T. Oowenhoven the premises on the north side of DeKalb avenue, between Olasson avenue and Graham street, Brooklyn, till November 1,1859, and, in consideration thereof, I, Randall G. Cowenhoven, hereby agree with said Crombie that I will in no way take advantage of the possession given said Tunis T. Cowenhoven under said lease, and will not interfere with said premises till the proceedings before the Hon. S. D. Morris, to obtain possession of said premises by said Crombie against me and Tunis T. Cowenhoven and William Cowenhoven, shall be reversed.

“ R. G. COWENHOYEN.

“ *April*4, 1859.”

Two actions against Crombie were subsequently commenced by the defendant — one to reform the sheriff’s deed, on the ground that the premises in question were included therein by mistake, and the other to set aside the judgment under which the sale was had for irregularity and defectiveness, in both of which defendant was unsuccessful.

*322
      *Flanders & Ormsby,*for the appellant.

*D. P. Barnard,*for the respondent.

Gilbert, J.:

The plaintiff in ejectment must recover upon the strength of Ms own title, and cannot rely on tbe weakness of that of bis adversary. Tbe title of tbe plaintiff rests upon a conveyance by tbe sheriff, dated November 18, 1857, executed pursuant to a sale on an execution issued upon a judgment recovered July 12, 1853, against Tunis T. Cowenboven. Tbe sale on tbe execution was made August 5, 1856. On tbe 5th of April, 1851, Tunis T. Cowenboven tbe judgment debtor, made a contract to sell tbe premises in controversy, to tbe defendant for $10,000, and tbe contract contained a receipt for tbe payment of $3,000 thereon. Tbe premises were conveyed by said Tunis to tbe defendant by deed, dated October 9, 1855, and recorded November 5, 1857. It was claimed by tbe defendant, that be was in tbe actual possession of tbe premises at tbe time of tbe sale on execution, and that be bad continued in possession thereof ever since, and evidence was given to that effect.

Pausing here, it is clear, that a direction to tbe jury to find a verdict for tbe plaintiff would be erroneous. For at tbe time tbe judgment was recovered, and tbe sale on tbe execution was made, tbe defendant bad a contract for tbe sale of tbe land on which a part of tbe purchase-money bad been paid, and it became a question for tbe jury to decide, whether tbe purchaser at tbe execution sale did not purchase with notice of those facts. For a purchaser with notice of tbe rights of a vendee in an executory contract for tbe sale of lands, takes subject to such rights, and an actual visible possession by tbe vendee of tbe lands sold, is notice o'f bis rights, whatever they may be. *(Smith*v. *Gage,*41 Barb., 61; *Chadwick*v. *Fonner,*6 Hun., 545; *Brown*v. *Volkening,*64 N. Y., 82.)

Equity looks upon things agreed to be done, as actually performed. Hence tbe vendor, from tbe time of tbe contract of sale, bolds tbe legal estate in trust for tbe vendee, and before tbe contract is executed by a conveyance, tbe lands are devisable by tbe vendee, and descendible to bis heirs as real estate. (1 R. S., 751, §§ 1, 27; 2 id., 57, § 2 ; Story’s Eq. Jur., § 789, *etseg.,*1212; *Champion*v. *Brown,*6

*323Johns. Ch. R., 398; *Livingston*v. *Newkirk,*3 id., 312.) A purchaser from the vendor directly, or at a sale on execution against him, with notice, does not acquire the lands divested of such trust in favor of the vendee, but takes them subject thereto. (Authorities, *supra.)*It follows, therefore, that such a vendee in possession, cannot be held to be a disseisor, or to unlawfully withhold the possession from the person who holds the legal estate. He may retain his possession until his rights under the contract have been destroyed, and the remedy of the vendor, or of those who have succeeded to his rights, is to enforce- payment of the unpaid purchase-money, or to put an end to the contract by averring and proving a breach thereof. That may be done in an action to recover the possession of the lands, provided appropriate averments are inserted in the complaint, to show that the vendee has forfeited his rights under the contract, and such averments are established upon the trial. But when, as in this case, no such averments are made in the complaint, the defendant may stand upon his denial that he unlawfully withholds possession. *{Smith*v. *Gage, supra)*

It appears, however, that in March, 1858, proceedings were instituted before the county judge of Kings county, for the removal of the judgment debtor, the defendant, and another person from the premises, pursuant to the statute of summary proceedings to recover the possession of land (2 R. S., 513, § 28, sub. 4), and the plaintiff claims that the adjudication made in such proceedings, that the defendant and his co-respondents be removed from, and that the plaintiff be put in possession of, the premises, is conclusive against the defendant, and estops him from denying that the judgment debtor held over a part of the premises sold under the execution, and that he (the defendant) entered into possession of the residue thereof under a title derived from the judgment debtor subsequent to the lien of the judgment. No doubt that is correct. But the title of the defendant mentioned was a legal, not an equitable, title. The county judge had no jurisdiction to decide, nor did he decide upon the legal effect of the facts on which the equitable title of the defendant depends. Those facts were not before him. Nor does the omission of the defendant to set up matters, which the county judge had no jurisdiction to try, make the judgment of the latter a bar to subsequent litigation of the same matters before a court having

*324jurisdiction to try them. A judgment is not conclusive of any matter to be inferred by argument therefrom, but only of material matters within the issue determined. (Greenl. Ev., § 528, 529, 530.) It is doubtful, whether upon the facts stated in the application to the county judge, namely, that the defendant entered into possession and held under a deed executed after the docketing of the judgment, he had power to proceed against the defendant, The case of *Hallenbeek et al.*v. *Garner*(20 Wend., 22), cited on behalf of the plaintiff, does not decide the point, and it seems a great stretch of the statute to give it an operation which would, in any case, make the proceeding one for the determination of conflicting claims to the possession of land. The language of the statute, in our judgment, plainly imports that the persons against whom it may be enforced are those, whose rights have been cut off by the sale but who, nevertheless, hold over and continue in possession. A sale on execution passes only the interest of the judgment debtor. The lien of the judgment will be subordinated to prior equitable interests in the land, unless the sale has been made to a *Iona fide*purchaser. *{Nat. Bk. of Norwalk*v. Lanier, 7 Hun., 627, and cases cited.) In *Ells*v. *Tousley*(1 Paige, 280), the late Chancellor Waíwoeth, used this language: “ I have lately had occasion to decide that the lien of a judgment does not in equity attach upon the mere legal title to land in the defendant, where the equitable title is in a third person.” And when Judge Bronson, in the case in 20 Wendell *{supra),*intimated that the statute might embrace a person who entered under a title subsequent to the lien of the judgment, he could not have intended to refer to the owner of an equitable title, which was prior to the lien of judgment. The judgment of a county judge in a summary proceeding, creates as effectual an estoppel respecting all matters within his jurisdiction in that proceeding and which actually were, or might have been determined, as the judgment of a competent court rendered in an action. But no judgment of any tribunal upon matters not within its jurisdiction is binding upon anybody. As to such matters the proceeding is *eorann non judiee. (White*v. *Coatsworth,*2 Seld., 137; *Mercein*v. *The People,*25 Wend., 64; *La Guen. v. Gouverneur,*1 Johns. Cases [2d ed.], 436, and notes.

We think, therefore, that the defendant was not estopped, by the *325summary proceeding before tbe county judge, from availing bimself of bis equitable title as a defense to this action. Tbe judgments in tbe Supreme Com-t no doubt constitute a bar to tbe matters litigated therein, but neither of them purport to effect tbe defendant’s right to enter into, or to remain in possession of, tbe land in controversy.

Tbe agreement of tbe defendant dated April 5, 1859, has no force or effect otherwise than as an agreement. It contains no recognition of tbe plaintiff’s, nor any waiver of tbe defendant’s title, but tbe effect of it is quite tbe contrary, and it was evidently intended to operate only during tbe continuance of tbe lease. It is impossible, therefore, to give it at this distance of time, after tbe lease has expired, tbe effect of an estoppel.

For tbe error of chreeting a verdict tbe judgment must be reversed, and a new trial granted with costs to abide tbe event.

Barnard, P. J., and D teman, J., concurred.

Judgment reversed and new trial granted, costs to abide event.