By the Court,
Savage, Ch. J.I am at a loss to coniecJ , turc upon what principle this suit can be sustained. As mortgagee, were there no escheat in the case, the plaintiff would undoubtedly recover; but here has been an eviction by a paramount title. That the judgment was by confession cannot operate against the defendant in this case; the lessor had notice, and declined defending. The tenant then in possession was not bound to defend; judgment would of course have been taken by default. The confession did not prejudice the plaintiffs. By the statutes, the proceedings which have been had have the like effect as the proceedings under the act concerning escheats. The judgment in favor of the people is conclusive until reversed.
The case is certainly not analogous to the case of Osgood v. Manhattan Co. 3 Cowen, 612, where it was decided that the acts of executors are not binding upon the heirs to prove the insolvency of their ancestor. Here is a judgment regularly obtained ; upon confession, indeed, and for good reason : the grantor in the deed under which the tenant held, and who must have been able to defend if he could, had refused to do so. Had the tenant suffered judgment by default, the consequence would have been that both would have lost the land: and so they did under the confession. Had any other person but Marsh become the purchaser from the state, there could have been no question raised; and I can see no difference in principle whether the purchase from the state be by the purchaser under the former claimant or by a stranger. The title of the lessor has failed; the proceedings in ejectment prove it conclusively; and a tenant is at liberty to shew that his landlord’s title is at an end.
I am of opinion that the defendant must have jugdment.