Thompson v. Clark — 11 N.Y. Sup. Ct. 164

Majority

p. 164

ISAAC W. THOMPSON, Appellant, v. MERRITT W. CLARK, Respondent.

Headnote

Judgment in action of ejectment—who not hound, hy—notice of lie pendens—who affected hy — Bent.

The plaintiff herein recovered a judgment against one Nancy Bull, in an action of ejectment brought against her, and by virtue thereof was put into possession of the premises. Subsequently this action was brought to recover the rents and profits of the land which had been occupied by the defendant during the pendency of the ejectment suit, under a lease from a person not claiming under Nancy Bull. Held (1), that the former judgment was not evidence of plaintiff’s title as against the defendant; (2), that the defendant was not bound by the filing of a notice of lis pendens in the ejectment suit, as he did not acquire his title from the defendant therein.

Appeal from a judgment in favor of the defendant, entered upon an order made at the Circuit, dismissing the complaint herein. In November, 1862, the plaintiff commenced an action of ejectment against one Nancy Bull, to recover the possession of the premises described in the complaint in this action, filed a notice of lis pendens, and, in July, 1870, recovered judgment therein. After the commencement' of the action, and while it was pending, the defendant in this action leased of one Neher, an administrator of Henry Bull, deceased, the premises in question, and occupied them for two years; and it is for the use and occupation of the premises for those two years that this action, was brought.

Isaac W. Thompson, appellant, in person.

Esek Cowen, for the respondent.

The plaintiff had recovered in ejectment against Mrs. Bull, and had been put into possession of the premises. He then sued the defendant, Clark, for rents and profits accruing before the plaintiff recovered. It appeared on the trial, that Clark rented the premises from one Neher, and not from Mrs. Bull. The plaintiff claimed

p. 165

however, that he was entitled to recover on proof of the judgment against Mrs. Bull, and of the filing of notice of lis pendens in the action against her, without other proof of his title. The plaintiff was nonsuited at the Circuit, and now appeals.

It is a well known general rule, that judgments are binding only on parties and privies. Proceedings in rem (or, in the language of the civil law, real actions) constitute the exception. Probably the ancient writ of right was of that nature. But the action of ejectment, in its origin, decided only .possession, not title. It was not strictly a real action. It concluded only the parties.^[7] As it was modified and retained by the Revised Statutes, the judgment was conclusive “ 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 the action.”^[2]

It therefore bound no others than parties or privies.^[3] The same idea is more definitely stated ■ in 2 Revised Statutes (marginal paging), 342, section 19. There it is enacted, that, if the defendant alien pending the action, and shall have no property of which the damages for rents and profits can be recovered, the alienee shall be liable for the time he possessed the premises. There the ground of liability is the acquiring title from the defendant. The same provisions are continued under the Code of Procedure.^[4]

The plaintiff, however, insists that by filing a notice of lis pen-dens,^[5] he has given notice to all the world, and that, therefore, the defendant occupied the land with notice of his claim. But the object of requiring or authorizing the filing of such a notice is not to make the judgment affect persons other than the defendant and those claiming under him. It is only to give notice to those who obtain title under the defendant. The person who is about to take a conveyance or a lease of land, and who examines the records for notices of “ Ms pendens ” need look only at the name of his proposed grantor or lessor. In the present case, the notice of lis pendens against Mrs. Bull gave Mr. Clark no notice that he could not safely take a lease from Mr. Neher. The plaintiff, however, relies on a remark of Nelson, C. J., in Leland v. Tousey,^[6] that “ the

† † 2 R. S. (m. p.), 309, § 29 (28).

‡ ‡ See, also, Cleirac v. Reincker, 11 Wheat., at 296.

§ § Sec. 455.

|| || Code, § 132.

¶ ¶ 6 Hill, 328 .

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record of the recovery in the ejectment suit is no evidence of title against them [*. e., third persons], unless it appears that * * * they entered into possession afterwards.” If “ afterwards ” means “ after the recovery,” the remark is of no avail to the plaintiff. But he claims that it means that the judgment is conclusive evidence of the plaintiff’s title against all who entered into the possession of the land after the ejectment suit was commenced. This is not sustained by the authorities cited in that case, and is contrary to settled principles.^[7] I cannot think that the court intended to assert such a doctrine.

The judgment should be affirmed.

Present — Learned, P. J., and Boardman, J.

Judgment affirmed.

* Ainslie v. Mayor, 1 Barb., 168 .

Footnotes

* Aslin v. Parkin, 2 Burr., p. 668.