#### David James King and Others, as Only Surviving Qualified Executors of and Trustees under the Last Will and Testament of Edward J. King, Late of the City of New York, Deceased, Respondents, *v.*Mary A. Doerr and Others, Defendants, Impleaded with Fiss, Doerr & Carroll Horse Company, Appellant, and Herman M. Beers, Respondent.

First Department,

June 2, 1911.

Judgment — estoppel — surplus-money proceedings — priority of lien — construction of judgment — appeal.

In determining the extent to which a judgment operates as an estoppel it is necessary to determine what issues were involved and decided in the action, and the burden is upon the person'asserting the estoppel to establish it.

A corporation obtained a judgment against D. in a suit begun by attachment, notice of which was indexed January, 1902, against property belonging to the estate of D.’s father, in which he had a one-third interest. Subsequently one B. brought a suit in equity against D. and others, including the corporation, alleging that D.’s father, who had owned certain stock in the corporation, had provided in his will that D. should be allowed to purchase the stock from his executors; that B. had assigned this stock to B. as security for a debt; that later the executors of D.’s father, although they had notice of the assignment, made a pretended sale of the stock to W., and that D. had later assigned the stock to one F. by an antedated assignment for the purpose of defrauding B. The issues tendered were the validity of the assignment to the plaintiff B. and of his claim to secure which the assignment was made; the validity of the sale to W. and of the assignment to F. The plaintiff endeavored to assert a right to the stock and a right to be reimbursed out of the general estate in the hands of the executors on the theory that they had wrongfully transferred the shares. The only relief asked against the corporation was that it be enjoined from transferring the stock in suit, no reference being made in any of the pleadings to its lien upon the property devised to D. by his father under its attachment and judgment.

*Held,*that a provision in the judgment that the claim of B. was established as a first lien as of May, 1902, upon the entire share of D' in the real and personal estate of his father; that the claim of F. was established^ a second lien, and that the balance of D.’s interest be paid to him after the satisfaction of these claims did not operate to subordinate the lien of the corporation on the real estate under its attachment and judgment to the lien of B.’s judgment;

*178That all that was determined was the order of priority as between, themselves of the claims of B. and F.; '

That the fact that the corporation’s attorney consented to the entry of the judgment did not change its effect;

That in a proceeding to determine the priority of liens upon D.’s share of the surplus moneys realized from the sale on foreclosure of the real estate belonging to his father’s estate the corporation had a first lien thereon to the extent of its judgment.

Where no question of fact is in dispute the Appellate Division will suit the relief to the facts found and not send the case back for' a new trial.

.Appeal by the defendant. Mss, Doerr <& Carroll Horse Company, from an order of the Supreme Court, made at the New York Special Term and entered in the'office of the clerk of the county of New York on the 20th day of March, 1911, confirming the report of a referee in surplus money proceedings.

*Martin Oonboy,*for the appellant.

*Edward 8. Seidman,*for the respondent.

Miller, J.:

John B. Doerr owned the premises subject to the mortgage, the foreclosure of which resulted in the surplus money involved herein. He died July 25, 1901, leaving a will, by which he divided all his property, real and personal, in equal shares among his wife, Mary A. Doerr, his daughter, May Estella Landis, and his -son,. William H. F. Doerr. The one-third interest of the said son only is involved in this appeal, and the question relates to the priority of liens of three claimants — the appellant Eiss, Dóerr <1⁄8 Carroll Horse Company; the respondent Herman M. Beers, and Eva Findlay, the mother-in-law .of the said son. The- lien of' the said appellant is based upon a judgment for $4,219.80 entered March 31, 1904, in a suit begun by attachment, notice of which was filed and indexed against the property on' January 31, 1902. The liens of the said respondent and of the said Findlay are based upon a judgment entered on April 1J, 1906, in a suit in equity instituted by the said respondent against the said William H.. F. Doerr, the appellant Fiss, Doerr & Carroll Horse Company, the exécutórs of the’ said. John B. Doerr, the said Eva Findlay, Mary A. Doerr, and. May Estella Landis, and one Frederick Wagner. The judgment was entered upon consent and upon, findings *179agreed to by all of the parties. That judgment provided that the claim of the plaintiff, this respondent, is established *“*as a first lien (as of date May 10, 1902) upon the entire share or interest of William H. F. Doerr in the real and personal estate of said John B. Doerr, deceased 3⁄8 7⁄8 3⁄8; and that the claim of defendant Eva Findlay is hereby established as above determined as a lien (as of date Oct. 7, 1901) upon the entire share or interest of defendant William H. F. Doerr in the real and personal estate of John B. Doerr, deceased 3⁄8 1⁄8 3⁄8. And that the defendant William H. F. Doerr shall have paid over to him whatsoever surplus there may be of his share or interest in the estate of John B. Doerr, deceased, after the payment in the order of priority above fixed of the claims of the plaintiff Herman M. Beers and of the defendant Eva Findlay.” Standing alone those provisions would seem to have the effect not only of subordinating the lien of the appellant’s judgment to the claims of the respondent and the said Findlay, but also of destroying the lien of the appellant’s judgment, even as against the judgment debtor himseif. The respondent relies upon that judgment as an adjudication, and invokes the doctrine that it is not subject to collateral attack. But in determining the extent to which a judgment operates as an estoppel it is necessary to determine what issues were involved and decided in the action, and the burden is on the person asserting the estoppel to establish-it. *(Rudd*v. *Cornell,*171 N. Y. 114.) Construction is not attack.

To determine the issues involved we must look to the pleadings. It appears that the said .John B. Doerr owned 3125⁄8 shares of the capital stock of the Fiss, Doerr & Carroll Horse Company, the appellant, He provided in his will that his son should be allowed to purchase from the executors, at an appraised value to be determined by them, his interest in the copartnership business, then conducted by him jointly with William Fiss and Joseph D: Carroll. Evidently the appellant was incorporated and succeeded to the business of the said copartnership after the will was made.. The respondent, the plaintiff in said equity suit, alleged in his complaint therein that on May 10, 1902, the' said William H. F. Doerr assigned to the plaintiffs’ assignors 3123⁄4 shares of the capital stock of *180the appellant as security for credit extended to him in the sum of $20,000; that said shares belonged to the said testator at the time of his death; that the executors of said testator had notice of said assignment;' that without giving the plaintiff any notice or opportunity to take the same, as provided in said will- and in violation of the terms of the will, they made a pretended ■ sale thereof to the said Wagner at a grossly inadequate price, and that the said Wagner was really acting in behalf of two of the executors; that the said William H. F. Doerr procured the said Eva Findlay to bring a suit against him and the executors. on an alleged assignment purporting to have been made to her on October 7, Í9Ó1, but which was in fact really made long thereafter, to hinder, delay and defraud the plaintiff. His prayer for relief was that the assignment to him be established, and that he be decreed to have a first lien to the extent of $17,728.20 on the 312% shares of the capital stock of the appellant herein, and on all the interest devised and bequeathed to the said William'H. F. Doerr by his said father;, that said stock and interest in said estate be sold, and out of the proceeds thereof the plaintiffs’ claim thus, established be paid; that the executors be required to account for said 312% shares, and for the entire interest of said William H. F. Doerr in said estate; that the alleged sale of the 312% shares to the said Wagner be set aside, and that the pretended assignment to the said Findlay be adjudged fraudulent and void; that the entire estate of the said John B. Doerr be sold and distribution thereof made to the persons found entitled thereto. The only relief prayed for against this appellant was that it be enjoined and restrained from transferring the said 312% shares of stock.

It will be observed that the complaint really tendered but three issues: (a) The validity and the effect-of the assignment of the 312% shares to the plaintiff and of the plaintiff’s claim, to secure which the assignment was made; b, the validity of the sale to Wagner of the 312% shares; c, the validity of the assignment to Findlay. Of course, the plaintiff in that suit, this respondent, had no lien except perforce of his assignment of the 312% shares of stock. He obviously undertook to assert: 1, a right to the .said shares of .stock; 2,,a right to be reimbursed out of the general estate in the hands of the execu*181tors, on the theory that they had wrongfully transferred said shares. As a mere general creditor he had no lien on the real estate devised by the said John B. Doerr, whose will did not even give the executors power of sale.. While he asked broadly that he be adjudged to have a lien on the interest of William H. F. Doerr in the estate both real and personal devised and bequeathed by his father, it is obvious that he was not entitled to that relief, and such a demand in such an action did not call upon a defendant, having a lien on the said Doerr’s interest in the real estate, to assert it.

The appellant answered denying certain allegations of the complaint, and asked that' it be dismissed. The said Findlay answered, setting up the assignment to her under date of October 7, 1901, and denied that it was made to hinder, delay and defraud the plaintiff, but alleged that it was given to secure loans amounting to $50,000; that a judgment was obtained by her for that amount against the said William H. F. Doerr in the Circuit Court of Jackson county, State of Missouri, upon which judgment action was brought and judgment recovered in the Supreme Court of New York, county of New York, for the sum of $51,602.97. She prayed that the complaint be dismissed and that she be adjudged to have an absolute conveyance of all the right, title and interest of the said William H. F. Doerr in the estate of his father and a prior lien to that of the plaintiff. No reference was made in any of the pleadings to the appellant’s lien under its attachment and judgment. . •

We come now to the judgment, relied upon by the respondent. It first defined the interest of Mary A. Doerr, William H. F. Doerr and May Estella Landis in the estate devised and bequeathed by John B. Doerr; it described six parcels of real estate devised by him, including the one from the sale of which the surplus money involved herein was derived; it then provided that this respondent was entitled to recover from William H. F. Doerr the sum of $17,728.20, with interest thereon from August 10, 1903; and that Eva Findlay was entitled to recover from William H. F. Doerr the sum of $51,602.97, with interest thereon from February 18, 1904; then followed-a clause beginning with a provision to the effect that the respondent and the *182said Findlay were, entitled to have a trust impressed for their benefit upon the entire interest of the said William H. F. Doerr in the estate of his father and upon the proceeds, thereof, and that each was to be paid his respective claim out of the interest of the said William H. F.' Doerr “ in the order of priority following, viz., 7⁄8 * * ” then follow the provisions in question, hereinbefore quoted. ”

It is patent that the findings and judgment had no reference whatever to the appellant’s judgment; What was intended was a determination of the order of priority as between themselves of the respondent and the said Findlay. That was the only question at issue, so far as the priority of liens was concerned, and that was what the judgment established. They, the two claims involyed, were to be paid in a certain order of priority, and when it is said that the respondent’s claim is established “as a first lien” the word “first” is used with reference to the"thing with which that lien is compared, *i. e.,*the lien of Findlay. The respondent’s lien was established as of date May 10, 1902, nearly six months after the appellant’s notice of attachment was filed. Surely nothing short of express language would suffice to subordinate a lien, the validity of which was not even in issue. The plaintiff in that suit obtained a judgment, in terms at least, establishing a lien upon the interest of the said William H. F. Doerr, upon the real estate as well as upon the estate in ■the hands of executors. But, by getting that to which he obviously was not entitled, he did not secure a preference over a lien, the validity of which was not questioned, to which no issue raised by the pleadings related, which was nowhere referred to, and which plainly was not in the mind of any of the parties to the stipulation. That no one had it in mind is conclusively shown by the fact that the judgment provided that the said William H. F. Doerr was to have any surplus arising after the payment “in the order of priority above fixed ” of the claims of the respondent and the said Findlay. If a trust could be impressed upon real estate, as was attempted to be done by that judgment, the trustee, whoever he was (the judgment failed to designate-one) would have to take subject to the liens upon the real estate.

*183The appellant in fact had no interest in any issue raised by the pleadings. It was nominally a defendant, because there was a dispute over the ownership of some of its capital stock. Being a party to the record, its attorneys signed the consent to the entry of the judgment, hut, so far as it was concerned, that was a mere, -formality; and even if its attorneys had the power to agree to the subordination of its lien to the claim involved in the suit, the judgment should not bo construed as having that effect in the absence of express provisions requiring that construction. As no question of fact is in dispute there is no occasion for sending the case back to the referee.

The order, in so far as appealed from, should be reversed, with ten dollars costs and disbursements, the exceptions to the referee’s report should be sustained and the final order should be modified so as to provide for the payment of one-third of the surplus money, representing the interest of the said William H. F. Doerr, to the appellant Mss, Doerr & Carroll Horse Company.

Ingraham, P. J., -Clarke, Scott and Dowling, JJ., concurred. • ■

Order, so far as appealed from, reversed, with ten dollars costs and disbursements, exceptions sustained and final order modified as provided in opinion. . Order to be settled on notice.