[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 397
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 398 So far as material to the question presented by this appeal, the record shows that William P. Ballou and Theodore P. Ballou were brothers; that on the 7th of June, 1851, William P. Ballou executed an instrument, which, on its face, purported to be an absolute deed to Charlotte Ballou, the wife of Theodore P. Ballou, conveying premises known, in part, as the Northrup farm, but also including by description other land. It expressed a consideration of $5,000, but was, in fact, executed upon an agreement between *Page 400 William and Theodore P., to which Charlotte was not a party, and was intended to be security only for the performance by William of a certain trust created by Theodore P. and solely in his interest. She had no knowledge of or interest in any of these things; neither of the arrangement between the brothers nor of the deed. It was left by William with Theodore P. Ballou, and was not to be delivered to Charlotte or have any effect, except in the event of a failure by William to perform the trust. It does not appear at any time to have been delivered by him to, or accepted by Charlotte, but, as the referee finds, it remained in the possession of Theodore P., who, in February, 1863, fraudulently put it on record. Nothing remained to be done by William in the execution of the trust, and no contingency had arisen, or could arise, to give the deed any effect or validity. Its record was after the death of William P. Ballou, and that of his only son, which last event occurred on the 29th of April, 1862. William P. was in possession of part of the land in 1842, and of that and the residue in 1843, and of the whole thenceforth until October, 1854, when he died, leaving a widow, Hannah Ballou, the plaintiff, and an only child, Theodore. The premises continued in their possession until the son died, leaving his mother, the plaintiff herein, his sole heir. She continued in possession down to and at the time of the trial. Her first knowledge or notice of the deed from William P. to Charlotte was in 1863, when she saw it in the possession of Theodore P. In April, 1864, she commenced this action against Charlotte only, and, afterwards amended the proceedings so as to bring in Theodore P., her husband, as a defendant. The plaintiff sought to have the deed of 1851, above referred to, and another deed set out in the complaint, annulled and canceled. As to the second deed it was found to be a forgery, and the plaintiff's prayer as to both was granted. Each defendant appeals.
As against Theodore P. Ballou, the judgment is so plainly just that nothing need be added to the views expressed by the General Term. Charlotte's case differs in one respect *Page 401 only. She has an exception to evidence received against her objection, and concerning which it is strenuously insisted by the appellant's counsel that the General Term erred. It stands on these circumstances: The plaintiff offered in evidence a judgment-roll in an action in the Supreme Court, in which Harriet Ballou, as administratrix of William P. Ballou, was plaintiff, and Theodore P. Ballou, defendant. It was docketed June 8, 1878, and shows a recovery for $1,428.42. It was affirmed in the Court of Appeals, November, 1879. (78 N.Y. 325.) It appears that it was offered in evidence against Theodore P. Ballou alone. It was objected to (1) "as immaterial and incompetent; (2), that the matters litigated in that action are not within the issues involved in this action, nor pertinent to them; and that litigation was not between the same parties as this action." The defendant's objection was overruled and he excepted. As to him the evidence was relevant, for it related to the matter now in controversy. After giving other evidence the plaintiff rested, and the defendant Charlotte, in her own behalf, moved, upon various grounds, for a dismissal of the complaint. The motion was denied. The defendants took the case, gave evidence and defendant Charlotte rested. After some further evidence in behalf of Theodore P., he also rested, and then (I quote from the record), the following occurred:
"Counsel for plaintiff produces and offers the judgment-roll in the case of Harriet Ballou, as administratrix, etc., against Theodore P. Ballou.
"Defendant Charlotte Ballou objected thereto as immaterial, incompetent and not evidence against her. The suit was commenced, tried and determined long after her deed. She was not, nor is, a party to the record."
"Defendant Theodore P. Ballou moved to strike it out, if already in, and objected to its receipt as immaterial, incompetent, and not between the same parties, it being in favor of her as administratrix, etc.; it is not evidence for her individually, and not specially pleaded. The referee overruled the *Page 402 several objections of each defendant and received the judgment-roll, and each defendant duly excepted."
"Plaintiff offered judgment-roll in same case in Court of Appeals, entered October 24, 1879.
"Objected to the same as before, on the same grounds, by defendant Charlotte Ballou, and by the other defendant, also, on same grounds; and, further, that the roll is not admissible for any purpose on this trial; and if at all, or for any purpose, the only part of the roll that can, in any event, be made evidence is the judgment of affirmance. The referee sustained the objections so far as only to allow the judgment of affirmance, to which each defendant duly excepted."
We think it was not incompetent as to Charlotte. Neither the roll nor its contents are set forth in the appeal-book, but it seems to be assumed by the learned counsel for both parties that the validity of the two deeds assailed in this action was directly involved in the other. This assumption is most favorable to the appellant, and yet it is not enough to sustain her objection.
The evidence given in answer to the plaintiff's case tended to show a paper title in Charlotte, but it appeared that it was obtained through the procurement and the affirmative act of her husband, Theodore P., and in fraud of the grantor named in the deed conferring such title; that her title stood on no other consideration, and was, in fact, no other than her husband's title, and that she was merely an instrument used by him to effect a fraud; that, in truth, the instrument was not intended to be a deed, but a mortgage, and invalid because of the performance of the act to secure which it was given. Theodore P. was the real party in interest, therefore, in the transaction examined in the former suit, and we have no doubt that any evidence competent against him in this action was competent against his wife, who was merely the nominal party and had only such rights as he had; she was identified in interest with him. According to her answer she was merely "designated by him to take the conveyance," and, according to the case made, her name was put in it by her husband *Page 403 as a mere matter of convenience to himself, or, more correctly stated, as a cover. She stands, therefore, as his representative solely, and anything affecting his title in like degree impairs or destroys the title she holds for him. (Carr v. Carr,52 N.Y. 251; Gilbert v. Deshon, 107 id. 324.)
The judgment, therefore, was admissible in evidence, to be weighed with the other testimony in the case. Her relation to the property, and the consequences resulting from that relation, were established by other and independent evidence.
As to both defendants we think the appeal fails, and that the judgment appealed from should be affirmed.
All concur.
Judgment affirmed.