[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 417 The reversal of the judgment in the suit of Bostwick v.Frankfield subverted the basis and ground of the judgment in this case. The plaintiff, to sustain the allegation of a breach of the covenants of seizin and of a good right to convey, relied upon the fact that before the deed to the plaintiff was executed, the defendant had entered into a contract to sell the premises embraced therein to one Thrall, and that the contract was in full force when the plaintiff's deed was executed, and entitled Mrs. Bostwick, who had acquired Thrall's interest in the contract, to demand a conveyance of the land upon payment of the unpaid purchase-money. To establish the existence of this contract, the plaintiff was permitted, against the objection of the defendant, to introduce the judgment in the action of Bostwick v.Frankfield, brought to enforce the alleged contract with Thrall, whereby it was adjudged that the Thrall contract was in force, and the judgment directed a sale of the premises embraced therein and a conveyance to the purchaser. The judgment was claimed to be an estoppel against the plaintiff in this action, although he was not a party to the record, on the ground that he took his conveyance after the suit of Bostwick v. Frankfield had been commenced, and after the filing of a lis pendens therein, although he was in possession under a contract of purchase when that action was commenced. Independently of the judgment record, there was no evidence of the existence of the Thrall contract, or of any fact tending to show a breach of the covenants in the deed to the plaintiff. Subsequent to the judgment in this action the judgment in the Bostwick Case was reversed on the merits. The defendant thereupon moved at the Special Term to open the judgment in this action, on the ground *Page 419 that the reversal of the judgment in the Bostwick Case had deprived it of any force as an estoppel, and that the defendant should not be held to be bound by the estoppel of a judgment which had been set aside. The General Term vacated the judgment in this action and directed a new trial. We deem it unnecessary to decide whether, if the defendant had contracted to sell the premises to a third person by a contract in force when he conveyed to the plaintiff, this would constitute a breach of the covenants sued upon, or whether the judgment in the BostwickCase was binding upon the plaintiff and concluded him from questioning the fact determined thereby, so long as it remained in force. If he was not bound by it, he could not, according to the general rule, take advantage of it: (Co. Litt., 352, a;Gaunt v. Wainmann, 3 Bing. [N.C.], 69; 2 Smith's Lead. Cas., 587.) But assuming that the judgment in the Bostwick Case established the plaintiff's right to recover, the reversal shows that the judgment was erroneous. If the reversal had been had before the trial or judgment in this action, it would have been a complete defense to the plaintiff's case. The estoppel of a judgment is set at large by a reversal: (Delannay v. Burnett, 4 Gill., 454; Wood v. Jackson, 8 Wend., 9.) The motion for a new trial, on the ground of the reversal of the judgment in theBostwick Case, was addressed to the same sound discretion of the court. It is analogous to a motion for a new trial on newly discovered evidence. The erroneous judgment in the BostwickCase was not attributable to any fault of the defendant. He procured its reversal by appeal in the ordinary way. Meanwhile the plaintiff, assuming the validity of the judgment, abandoned the premises and brought his action on the covenants in the defendant's deed. There has been no sale under the Bostwick judgment, and no title to the property acquired thereunder. The reversal shows that the judgment was wrong from the beginning. (Hall v. Andrews, 65 N.Y., 572.) If the plaintiff has, as is claimed, relying upon the correctness of the Bostwick judgment, allowed the property to be sold upon mortgages *Page 420 which he assumed to pay, it is his misfortune. The court had power, in the exercise of its equitable jurisdiction, to relieve the defendant by vacating the judgment in this action; and we are of opinion that the order of the General Term was right and should be affirmed.
All concur.
Order affirmed and judgment absolute for defendant on stipulation.