By the Court, Miller, J.
The main point which it is necessary to consider in this case is whether the judgment in the ejectment suit brought by the Bays against Hallenbeck was operative against Bennett, and precluded him from contesting the defendant’s rights acquired by virtue of that judgment. It is claimed by the defendant that it was a bar to a recovery in this action, and that the foreclosure proceedings and judgment under which the plaintiff claimed, did •not give the plaintiff any title, as against the defendant.
The mortgage, which was foreclosed, bore date some time prior to the commencement of the ejectment suit, but the judgment of foreclosure was entered after the ejectment suit was instituted, and previous to its termination. The ejectment suit was founded upon the non-payment of rent under a lease with a covenant authorizing a re-entry, which lease was executed long prior to the making of the mortgage. Under this lease, the defendant in the ejectment suit held the premises, and the mortgage was executed by him.
[81]*81There was no special finding of facts and conclusions of law by the judge, in the present case, and no exception to any failure of the defendant to introduce evidence showing title in the plaintiffs in the ejectment suit and a default in the payment of rent, which authorized a re-entry independent of the judgment. As the judgment itself contained some evidence on the subject, and was not specifically objected to, on account of it not being of the highest character ; and as the lease was introduced independent of the judgment: and inasmuch as the defects in these particulars were of a character which could be supplied; I think it must be assumed that the defendant made out title in the parties under whom he claimed to act, and for this reason we must consider the naked question whether the judgment in the ejectment suit, in connection with the facts proved, was a bar to the plaintiff’s right to recover in this action.
I am inclined to think that under the state of facts presented, the plaintiff was not in a position to override the rights acquired by the defendant, by virtue of the judgment in the ejectment suit. The rule is well settled that a verdict or judgment in a former action upon the same matter directly in question, is evidence for or against privies in blood. (Coan v. Osgood, 15 Barb. 583. White v. Evans, 47 id. 179, and authorities there cited.)
The question then arises, in the case under consideration, whether the plaintiff in this action was a privy in the ejectment suit. The lesser “ privity” denotes mutual or successive relationship to the same rights of property. And privies are distributed into several classes, according to the manner of this relationship. They are most generally classed into privies in estate, privies in law, and privies in blood. Privies in estate consist of donor and donee, lessor and lessee, and joint tenants. (1 Greenl. Ev. § 189.) In Coan v. Osgood, (15 Barb. 588,) Welles, P. J. after quoting from the above section in Greenleaf’s Evidence, says: “In the instances [82]*82given by our author, of privies in estate, as indeed in other classes also, they are hetioeen persons where one succeeds to the rights of another; or, as is sometimes expressed, in the post, to another; except in the case of joint tenants, where each represents the interest of all; like coparceners, where all make but one heir.” The learned judge quotes from Burrill’s Law Dictionary, in which privity is defined as “a derivative kind of interest, founded upon, or growing out of, the contract of another, as that which subsists between an heir and his ancestor; between an executor and testator, and between a lessor or lessee and his assignee. The same author also defines c<privy” to be “a person who has an interest in an estate created by another; a person having an interest derived from a contract or conveyance to which he is not himself a party. Thus an heir is privy to the conveyance of his ancestor, an executor to the contract of his testator, and an assignee of a lessor, to the contract of the original parties.”
Under these general rules the lessee was a privy to the lessor. Hallenbeck, the defendant in the ejectment suit, the assignee of the lessor, was also a privy. The mortgage was also executed by Hallenbeck, and the mortgagee took subject to the rights of the lessor, and the sale of the premises was made under the foreclosure proceeding without in any way impairing or affecting those rights.
The plaintiff in this action held through and under the title of the plaintiffs in the ejectment suit. The interest which he obtained by the conveyance to him grew out of the contract of the lessor with the lessee, to which he was not a party, and the conveyance of the lessee’s interest to the assignee, and he actually stood in the position of the assignee. The assignee would have been a privy beyond any question, and because the plaintiff held by purchase at a foreclosure sale the assignee’s interest in the premises, it did not alter his position, or confer upon him any additional or stronger right or title. He thereby acquired no other or different or better right than that which the assignee assigned. He [83]*83in point of fact stood in his place, as his legal representative, by means of the foreclosure proceedings, which invested him with the legal title of his predecessor, and nothing more. He was, I think, a privy in estate, who succeeded to the rights of another—the mortgagor—by virtue of the sale, and as such had an interest founded upon and growing out of the original contract between the lessor and the lessee, or his assignee, which was affected by the judgment in the ejectment suit, the same as if he had been an original party to the same. The plaintiff in this action claimed through and under the party against whom the judgment in the ejectment suit was obtained. This title was perfected by the foreclosure proceedings after the ejectment suit was commenced, and hence I think the judgment, in connection with the title which the evidence established, under the lease, was conclusive against the plaintiff. (Laws of 1862, p. 977.)
We have been referred to several cases as authority to sustain the position urged by the plaintiff’s counsel, but, after a careful examination, I am satisfied that none of them are adverse to the views which I have already expressed. In Campbell v. Hall, (16 N. Y. Rep. 575,) it was held that a mortgagee of land is not estopped by a judgment, in the action, or the award of arbitrators, between his mortgagor and a prior mortgagee, rendered after the execution of the second mortgage, but may litigate the amount due upon the prior mortgage, notwithstanding such judgment or award. In the case cited, which was an action to foreclose a mortgage, the holder of the second mortgage was not a party to the former suit, and occupying the relation simply as a junior incumbrancer, there was no such privity with him as could cut off his rights, without notice. It was entirely different from the case of a lessor and lessee, or the assignee of a lessee, to the contract between the original parties, and not within the rule laid down in the authorities to which I have adverted.
In White v. Evans, (47 Barb. 179,) distinct objections were taken to the findings of fact in regard to the. plaintiff’s [84]
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By the Court, Miller, J.
The main point which it is necessary to consider in this case is whether the judgment in the ejectment suit brought by the Bays against Hallenbeck was operative against Bennett, and precluded him from contesting the defendant’s rights acquired by virtue of that judgment. It is claimed by the defendant that it was a bar to a recovery in this action, and that the foreclosure proceedings and judgment under which the plaintiff claimed, did •not give the plaintiff any title, as against the defendant.
The mortgage, which was foreclosed, bore date some time prior to the commencement of the ejectment suit, but the judgment of foreclosure was entered after the ejectment suit was instituted, and previous to its termination. The ejectment suit was founded upon the non-payment of rent under a lease with a covenant authorizing a re-entry, which lease was executed long prior to the making of the mortgage. Under this lease, the defendant in the ejectment suit held the premises, and the mortgage was executed by him.
[81]*81There was no special finding of facts and conclusions of law by the judge, in the present case, and no exception to any failure of the defendant to introduce evidence showing title in the plaintiffs in the ejectment suit and a default in the payment of rent, which authorized a re-entry independent of the judgment. As the judgment itself contained some evidence on the subject, and was not specifically objected to, on account of it not being of the highest character ; and as the lease was introduced independent of the judgment: and inasmuch as the defects in these particulars were of a character which could be supplied; I think it must be assumed that the defendant made out title in the parties under whom he claimed to act, and for this reason we must consider the naked question whether the judgment in the ejectment suit, in connection with the facts proved, was a bar to the plaintiff’s right to recover in this action.
I am inclined to think that under the state of facts presented, the plaintiff was not in a position to override the rights acquired by the defendant, by virtue of the judgment in the ejectment suit. The rule is well settled that a verdict or judgment in a former action upon the same matter directly in question, is evidence for or against privies in blood. (Coan v. Osgood, 15 Barb. 583. White v. Evans, 47 id. 179, and authorities there cited.)
The question then arises, in the case under consideration, whether the plaintiff in this action was a privy in the ejectment suit. The lesser “ privity” denotes mutual or successive relationship to the same rights of property. And privies are distributed into several classes, according to the manner of this relationship. They are most generally classed into privies in estate, privies in law, and privies in blood. Privies in estate consist of donor and donee, lessor and lessee, and joint tenants. (1 Greenl. Ev. § 189.) In Coan v. Osgood, (15 Barb. 588,) Welles, P. J. after quoting from the above section in Greenleaf’s Evidence, says: “In the instances [82]*82given by our author, of privies in estate, as indeed in other classes also, they are hetioeen persons where one succeeds to the rights of another; or, as is sometimes expressed, in the post, to another; except in the case of joint tenants, where each represents the interest of all; like coparceners, where all make but one heir.” The learned judge quotes from Burrill’s Law Dictionary, in which privity is defined as “a derivative kind of interest, founded upon, or growing out of, the contract of another, as that which subsists between an heir and his ancestor; between an executor and testator, and between a lessor or lessee and his assignee. The same author also defines c<privy” to be “a person who has an interest in an estate created by another; a person having an interest derived from a contract or conveyance to which he is not himself a party. Thus an heir is privy to the conveyance of his ancestor, an executor to the contract of his testator, and an assignee of a lessor, to the contract of the original parties.”
Under these general rules the lessee was a privy to the lessor. Hallenbeck, the defendant in the ejectment suit, the assignee of the lessor, was also a privy. The mortgage was also executed by Hallenbeck, and the mortgagee took subject to the rights of the lessor, and the sale of the premises was made under the foreclosure proceeding without in any way impairing or affecting those rights.
The plaintiff in this action held through and under the title of the plaintiffs in the ejectment suit. The interest which he obtained by the conveyance to him grew out of the contract of the lessor with the lessee, to which he was not a party, and the conveyance of the lessee’s interest to the assignee, and he actually stood in the position of the assignee. The assignee would have been a privy beyond any question, and because the plaintiff held by purchase at a foreclosure sale the assignee’s interest in the premises, it did not alter his position, or confer upon him any additional or stronger right or title. He thereby acquired no other or different or better right than that which the assignee assigned. He [83]*83in point of fact stood in his place, as his legal representative, by means of the foreclosure proceedings, which invested him with the legal title of his predecessor, and nothing more. He was, I think, a privy in estate, who succeeded to the rights of another—the mortgagor—by virtue of the sale, and as such had an interest founded upon and growing out of the original contract between the lessor and the lessee, or his assignee, which was affected by the judgment in the ejectment suit, the same as if he had been an original party to the same. The plaintiff in this action claimed through and under the party against whom the judgment in the ejectment suit was obtained. This title was perfected by the foreclosure proceedings after the ejectment suit was commenced, and hence I think the judgment, in connection with the title which the evidence established, under the lease, was conclusive against the plaintiff. (Laws of 1862, p. 977.)
We have been referred to several cases as authority to sustain the position urged by the plaintiff’s counsel, but, after a careful examination, I am satisfied that none of them are adverse to the views which I have already expressed. In Campbell v. Hall, (16 N. Y. Rep. 575,) it was held that a mortgagee of land is not estopped by a judgment, in the action, or the award of arbitrators, between his mortgagor and a prior mortgagee, rendered after the execution of the second mortgage, but may litigate the amount due upon the prior mortgage, notwithstanding such judgment or award. In the case cited, which was an action to foreclose a mortgage, the holder of the second mortgage was not a party to the former suit, and occupying the relation simply as a junior incumbrancer, there was no such privity with him as could cut off his rights, without notice. It was entirely different from the case of a lessor and lessee, or the assignee of a lessee, to the contract between the original parties, and not within the rule laid down in the authorities to which I have adverted.
In White v. Evans, (47 Barb. 179,) distinct objections were taken to the findings of fact in regard to the. plaintiff’s [84]*84title; and I understand the decision was put upon the ground that many of the most material facts to show the defendant’s title were not proved. This is an essential and vital difference which distinguishes the two cases, and renders the case cited no authority for the position taken by the counsel for the plaintiff.
[Albany General Term,
September 17, 1866.
In Tanner v. Smith, a manuscript decision in the third judicial district, it appeared that the suit the record of which was introduced in evidence, was commenced long after the suit on trial, and after the defendant in the latter had left the premises. The defendant was not a party in that suit, and it was commenced and tried after his rights had accrued, and he therefore never took or held subject to that judgment. It will be perceived that the case differs materially from one where the rights of the party who has been prosecuted have been transferred by assignment, or the due course of a legal sale.
The objections made to the entry of the judgment are not, I think, well founded. Although the form of the judgment is somewhat peculiar, yet I think it may be considered as a judgment entered by default, the answer having been withdrawn. Nor do I see any objection to an admission by the defendant, in writing, of the facts alleged in the complaint, that saving the necessity of proving those facts. The most that can be urged against the judgment is that it was irregular. This could only be taken advantage of by the party on motion. Clearly it was not void.
As no error exists in the proceedings .had upon the trial, a new trial must be denied, and the judgment affirmed, with costs.
Miller, Ingalls and Sogelomn, Justices.]