Majority
p. 1055HALL v. HALL. (Supreme Court, Appellate Division, Third Department. May 4, 1910.) The following is the opinion of the trial court: This action was regularly brought on for trial at an adjourned Trial Term of the Supreme Court, held in Fulton county. The answer denied no allegations of the complaint, and the plaintiff rested upon the allegations in the complaint. The defendant put in evidence the bond and mortgage described in the complaint, and the case was submitted to the court. The action is brought to have declared null and void the mortgage described in the complaint and the same discharged from record. The plaintiff has not shown facts sufficient to constitute a cause of action, to secure the relief demanded, or any relief in equity. The deed of the premises, made by the plaintiff to William Yocum and Mary Yocum, is acknowledged on the 16tli
Headnote
Judgment (§ 712[1] )—Conclusiveness—Parties.Plaintiff having conveyed certain premises to Y. on November 16, 1904, Y. mortgaged the same to defendant November 18, 1905. On November 11, 1907, plaintiff sued Y. and his wife to recover possession of the property in which she succeeded in obtaining a decree restoring her to her former - estate therein, which judgment was entered January 13, 1908. Held that, defendant not having been a party to such action, she was not bound thereby, and that her mortgage was a valid lien against the property.
[Ed. Note.—For other cases, see Judgment, Cent. Dig. § 1233; Dec. Dig. § 712.[1] ]
Appeal from Trial Term, Fulton County.
Action by Hannah Hall against Ellen Hall to set aside a mortgage and have the same discharged of record. Judgment for defendant, and she appeals.
Affirmed.
p. 1056■day. of November, 1904. The mortgage made by William Yocum and Mary Yocum to the defendant, Ellen Hall, is dated November 18, 1905, 'and is acknowledged on the same day. On the 11th day of November. 1907, the complaint alleges that the plaintiff brought an action against William Yocum and Mary Yocum to recover possession of the real property described in the several instruments set forth herein and recovered judgment in her favor against the defendants awarding her complete possession of the property, restoring her to her former estate therein, and declaring her the sole owner in fee.therein, which judgment is entered in the clerk’s office of Fulton county on the 13th day of January, 1908. The defendant, Ellen Hall, was not a party to that action, and consequently is not bound toy the judgment or decree. There are no allegations in the complaint showing why the mortgage is void and why it is not a valid lien upon the premises described in the complaint. ■ The defendant is entitled to a judgment dismissing the complaint upon the merits, with costs. A decision may be prepared and presented directing judgment accordingly. Argued before SMITH, P. J.,- and CHESTER, KELLOGG, COCHRANE, SEWELL, and HOUGHTON, JJ,
Eugene D. Scribner, for appellant.
H. D.. Wright and N. H. Anibal, for respondent.
Judgment affirmed, with costs, on opinion of Van Kirk, J., at Trial Term. All concur, except SMITH, P. J., who votes for modification of the judgment so as to strike therefrom the provision that it is upon the merits.