The opinion of tbe Court, after a continuance for advisement, was drawn up by
Sheple? J.This is a review of the action reported, 2 Fairf. 361. The legal construction of the contract between the parties was finally settled in that case. It is not there decided, that upon legal principles, Saul Holbrook actually acquired any claim, right, or title in the premises by the bond from Samuel Holbrook.
That decision regards the contract as clearly intending to save Samuel harmless from that bond, although the language used in tbe contract, is that of a claim, right or title in the premises. And such a construction is made of the language as to carry into effect the intention of the parties, which intention to save Samuel harmless from the bond, the Court thought was clearly to be perceived from the situation of the parties, and the state of the facts then within their knowledge. This case presents no facts authorizing a different conclusion. And in the further examination, it is to be understood, that the contract of Holbrook and Preston, was a contract to save Samuel Holbrook harmless from bis bond to Saul Holbrook, although Saul thereby acquired no claim, right or title in real estate by it.
Such being the contract, the first question made in this case is, whether the judgment recovered by Saul against Samuel on the bond can bo evidence for Samuel in his suit against those, who have given him an indemnity against it.
That judgments under such circumstances are evidence for certain purposes, such as to prove the fact of damage, and in some cases tbe amount of damage, there can be no doubt. 1 Stark. Ev. 216.
Whether it was evidence to prove Samuel’s title to recover, must depend upon, whether those contracting to indemnify him had such-notice of the suit against him, that they could take upon themselves the defence of it by adducing testimony, cross-examining the witness, and entering an appeal. Where such notice is given the judgment binds the party, who engages to indemnify; and the party injured may offer it as evidence of his title to recover. Marshall *12C. J., speaking of warranty and indemnity, says, “ in such a case a judgment against the party to be indemnified, if fairly obtained, especially if obtained on notice to the warrantor, is admissible in a suit against him on the contract of indemnity.” Clark’s Executor v. Carrington, 7 Cranch, 308.
In the case of Kip v. Brigham, 6 Johns. R. 158, where notice was given to the party liable to indemnify, and he assisted in the defence by his counsel, the judgment was held to be conclusive of the title to recover.
If the party is notified, so that he may appear, whether he does or not in fact appear and defend, it is sufficient to authorize the admission of the judgment against him upon the question of title. Blasdale v. Babcock, 1 Johns. R. 517.
No formal notice appeal’s to have been given in this case to the parties liable to indemnify; but it appears that one of them, a coun-sellor of the Court, appeared for the defendant in that suit. The presiding Judge ruled, “ that if the jury were satisfied, that Preston appeared in defence of the action brought by Saul, and was apprised of what it was founded upon, the judgment was prima facie evidence against him and Joseph.”
It cannot be material to the person agreeing to indemnify, that he should have a formal notice served upon him. The law requires, that he should have notice before the judgment can be used against him, because he is the real party in interest. But any notice which will enable him to present any defence which he may have either in law, or on fact, is all that can be useful to him; and the law requires no vain or useless ceremonies in such cases. The ruling supposes, that he appeared in defence with a knowledge of what the action was founded upon, and of course with a knowledge, that he was a real party in interest, if he had agreed to indemnify against it. And knowing this, he had sufficient opportunity to defend. And where two are jointly liable, a demand made upon, or notice given to, one is sufficient.
The second point made, relates to the instructions given to the jury. The case states, that “the counsel for the plaintiffs in review contended thereupon, that in 1827, when the bond was given to Saul, the land belonged to Preston, and that therefore *13Saul could derive from the bond given to him by Samuel no claim thereto ; but I instructed the jury, that if Samuel received a conveyance from a party in possession and was in the actual seizin of the land, claiming it as his own, notwithstanding there might be an outstanding paramount title, Saul did acquire a claim in the premises in virtue of his bond.” It is of importance to notice the real point of difference between the court and counsel. The counsel contended, that as Preston was the real owner of the laud, Saul could derive no claim to it by his bond ; or in other words, that if Samuel had performed, what the bond required of him by giving a deed to Saul, such deed would have conveyed nothing in the land, the title being in another. It was this position, which the Court was to meet; and the Judge, differing from the counsel, in substance says, a deed so made would have conveyed an interest in the land though the title was in another, because “ Samuel received a conveyance from a party in possession and was in the actual seizin of the land, claiming it as his own.” As the parties to this title and occupation were situated, our statute allows an interest in land to be thus conveyed; and there was no error in the conclusion of the Judge.
The case as drawn up makes the Judge say, that “ Saul did acquire a claim in the premises in virtue of his bond,” and it is now to be understood, that such language was addressed to the jury. But in looking at the subject matter under discussion at the time, and the point of difference; that expression, though erroneous, could have had no more influence upon the jury, than to negative the position taken by the counsel. And this it was proper that he should do. The jury were not led into any erroneous view of the rights of the parties by the instructions given ; on the contrary, tbe true merits were really presented so as to enable them to find according to the rights of the parties.
The third point made at the trial relates to the effect of the deed from Samuel Holbrook to Preston, upon his contract of indemnity. And the instructions of the presiding Judge upon this point were clearly correct.
Judgment on the verdict.