(dissenting):
I dissent. I think that the verdict was properly directed for defendant, Catharine E. Sheridan, suing in the name of Emily Adams and Claudina Post, her grantors, made out a prima facie case, first, because the fair construction of the stipulation which was made in the action is that Cogswell, the prede*613cessor in title of Adams and Post, was in possession of the premises, and, second, because defendant did not rest upon the weakness of plaintiff’s title, hut attempted affirmatively to show his own title and proved that both claimed through a common source. (Aubuchon v. New York, New Haven & Hartford R. R. Co., 137 App. Div. 834.) But the deed from Adams and Post, to defendant, although made subsequently to the conveyance to plaintiff and subsequently to the commencement of this action, completely vested the title in him. At the time of such conveyance the land belonged to Adams and Post. So far as conveying any estate in the land itself is concerned, the deed to Sheridan was absolutely void. All that she obtained under that deed was a right to' sue, which right is in the nature of a chose in action. The conveyance by Adams and Post to defendant was one which they had a right to make even though the effect of the conveyance was to destroy this chose in action. (Dever v. Hagerty, 169 N. Y. 481; Jackson v. Demont, 9 Johns. 55.) But it is claimed that the deed from Adams and Post.to defendant was obtained “by trickery, by false suggestions of fact, by false statements of fact, and by duress and undue influence brought to bear upon them.” Assuming, for the sake of argument, that plaintiff’s exception is sufficient to present the question of the right to introduce such evidence in this action, I think that such right does not exist. If Adams and Post are the real parties in interest, although this is an action at law, I am inclined- to assent to the contention in the opinion of Mr. Justice Thomas that, if the fraud and oppression relate to the execution of the deed, they may be proved in this action. If plaintiff desired to be advised as to the grounds upon which the deed was to be attacked, she might have applied to the court to compel a reply; ■ Failing to do this, and the defense being affirmative in character, I think any evidence, either by way of denial or avoidance, was competent .to the extent indicated. But if Adams and Post are not the real parties in interest, and Catharine E. Sheridan is, then the latter cannot interfere in this suit and prevent the operation of the deed from Adams and Post to defendant upon the ground that execution of the deed was fraudulently obtained. As to her, it is *614res inter alios acta. She must stand upon the strength of her own demise. (Jackson v. Demont, supra.) But no person can he heard to attack a fraudulent transaction between strangers unless such person suffers injury as the result of the fraud. (1 Bigelow Fraud, 199; Bell v. Johnson, 111 Ill. 374.) The injury which Sheridan sustained was not by reason of the fact that the conveyance by Adams and Post to the defendant was fraudulently obtained. The injury would have been precisely the same if the conveyance had been voluntarily made by them. It does not concern her whether they were defrauded or not. She is not an assignee of that cause of action. That Catharine E. Sheridan is the real party in interest seems to he clear. (Hasbrouck v. Bunce, 62 N. Y. 475.) When a conveyance is made.by a party out of possession, the grantee therein, as was stated in that case, is “the real party in interest.- * * ⅜ The delivery of a deed, under these circumstances, and in view of this statute, is an irrevocable authority to the grantee to use the name of the grantor to recover the land. ⅜ ⅜ ⅜ He could sue in the name of his assignor, and the court would protect him against any interference by his assignor.” It is quite clear that the “irrevocable authority ” there referred to and the protection “ against interference ” relate to the bringing of the action, and not the maintenance of it. The land is one thing, the chose in action is another. It is in the latter only that the grantee is interested. The maintenance of the action can be defeated and the chose in action destroyed, as has been heretofore pointed out, hy .a conveyance of the land. When the grantee’s chose in action is gone, there is nothing before the court for determination.
Order affirmed on reargument, with costs.