Elliott v. Pell

1 Paige Ch. 263, 1828 N.Y. LEXIS 342, 1828 N.Y. Misc. LEXIS 57

• Court: New York Court of Chancery
• Decided: December 2, 1828
• Status: Published

Opinion

The Chancellor :—By the decision of the late Chancellor upon the demurrer in this cause, it is settled that the decree in the former suit, so far as relates to the lien of the Pugsley mortgage upon the twenty-six acres, which was the subject of litigation there, is binding and conclusive, and can only be impeached by a bill of review. There is certainly no error on the face of that decree which could authorize the complainants to reverse the same. The answer of A. Pell and wife was responsive to the bill, and so far was evidence against the complainant. If the co-defendants in that suit were not bound by that answer, because they had no opportunity to produce evidence to contradict it, they only could sustain a proceeding to reverse the decree for error in law, so fax as it affected their rights. But that question cannot be raised except by a direct proceeding to review the original decree.

[1]

It is the settled law of this court, that a decree between co-defendants, grounded upon the pleadings and proofs between the complainant and the defendants, may be made; and it is the constant practice of the court to do so to prevent multiplicity of suits. Chamley v. Lord Dunsany and others, 2 Sch. & Lef. 710, 718. Conry v. Caulfield, 2 Ball & Beat. 255.) But such decree between co-defendants, to be binding upon them, must be founded upon and connected with the subject matter in litigation between the complainant and one or more of the defendants.[2]

The bill in the original cause sought the foreclosure of a mortgage upon the twenty-six acres only; and the defendants Mitchell, Hinman, Aislabie and A. Pell and wife, were *made parties, on the ground that they claimed to be incumbrancers on that particular piece of land. They were called upon to answer as to any incumbrances they might have upon the twenty-six acres, and no allusion whatever was made to any incumbrances or rights of the defendants,- or any of them, to any other land. Neither did the answer of A. Pell and wife set up the Pugsley mortgage as a valid and subsisting lien upon any other land than the twenty-six acres. After setting out the mortgage, and the agreement of C. Pell and wife respecting the same, they charged and insisted, and submitted to the court, that the said mortgage was a valid and subsisting lien or incumbrance upon the premises mortgaged to the complainant, as in his bill was mentioned and set forth; and that they were entitled to a preference and priority of payment out of the said mortgaged premises. The decree made upon that bill and answer must be taken with reference to the matters then in litigation before the court, and cannot be construed to affect the rights of any of the parties as to the other lands which were not the subject matter of litigation in that suit. If A. Pell and wife had actually released all the lands covered by the Pugsley mortgage, except the twenty-six acres, from the lien thereof, the other defendants could not have given such release in evidence in that suit, because no question as to any other lands was in litigation. If the complainant in the first suit had set out all the facts, as his executor now has done, and claimed to throw the Pugsley mortgage, if it shordd be declared valid, upon the lands of the other defendants, he would then have given them an opportunity to litigate their rights. But even in such a case it is doubtful whether he could have effected that object without filing a replication to their answer, and thus giving them an opportunity to contest the validity of the Pugsley claim.

The prayer of the complainant’s bill in this suit, seeks directly to alter, in two very material respects, the decree in the former suit. As no such relief can be granted, the bill must be dismissed. But even if there had been a prayer for substitution, or for relief generally, the defendants Mitchell and *Hinman would have been permitted to show that the Pugsley mortgage was not a valid and subsisting lien upon the lands not affected by the decree in the former suit. And the evidence taken in this cause, and admitted on the hearing to be read, de bene esse, as I understand it, abundantly establishes the fact. The complainant’s bill must therefore be dismissed; but as he has prose-outed this suit as executor, in good faith, he is not to be charged with costs.

Woodruff v. Cook, 2 Edw. Ch. 259; Bogardus v. Clark, 4 Paige, 623; Kent, Ch., in Murray v. Murray, 5 John. Ch. 60; Holms v. Remsen, 7 id. 286; Gelston v. Hoyt, 1 id. 543; Gardner's Adm'r v. Strode, 5 Lit. 339; Burch v. Scott, 1 Bland, 120; Sanders’ Heirs v. Gatewood, 5 J. J. Marsh. 327; see further Am. Ch. Dig. by Waterman, tit. Decree.

Hopkins v. Lee, 6 Wheat. 109; Bank of United States v. Beverly, 1 How. U. S. 134; Washington Bridge Co. v. Stewart, 3 id. 413; Crandell v. Gallup, 12 Conn. 365; Breckerinridge v. Ormsby, 1 J. J. Marsh. 236; Allin v. Hall, 1 A. K. Marsh. 525.