— This action is in equity brought for alternative relief, either to set aside and annul a judgment and decree of the superior court, in an equity action of Wenborn v. Poston and wife, or to open •the same and make this plaintiff a defendant therein.
This plaintiff is not a party to the judgment and decree attacked, but claims as a privy in estate with, and as grantee of Boston and wife, to have an interest in the subject matter of the controversy.
Wenborn’s action was instituted May 13, 1854, for the purpose of determining and silencing an alleged claim of .Boston.and wife to certain real estate purchased by him from them, which arose out of the circumstance of some deed being lost and unrecorded. At the time of the action a lis pendens was placed on record, according to the statute, and, pendente lite, Boston and wife, on the 3d June, 1854, as is claimed by plaintiff, conveyed the property to Oalderwood; it was subsequently conveyed to other parties, until finally, on the 21st of July, 1856, it was conveyed to this plaintiff.
Oalderwood and plaintiff respectively purchased with full notice of the action of Wenborn, and of all proceedings had therein up to the period of their respective purchases, and in this action they are in no better position than Boston and his wife would be had this suit been instituted by them.
On the 10th October, 1854, a judgment and decree was rendered in favor of Wenborn, and against Boston and wife, substantially to the extent of the relief prayed.
Subsequently a motion to open the judgment, and for a new trial was made. I find of record a statement of the grounds, etc., relied upon in support of this motion, which was filed October 27,1854, and is signed by the attorney of Boston and wife and by Oalderwood, who had prior to that time, received his conveyance, as agent of the defendants. This statement also contains an affidavit made by Galder-wood, which was used in support of the motion. It appears then, that Oalderwood purchased prior to the trial and judgment, and had notice *164of the action through the recorded Us pendens, and that at the motion for a new trial, he participated therein as the agent of Boston and wife. Under our code of practice, it was his privilege to have intervened in the action in behalf of his own interest, and if he had desired to protect his rights he would have done so. In default thereof, he can have no good reason to complain, nor can his successor in interest, that Boston and wife did not properly defend the action. Why should they have done so, when they had conveyed all their interest to Qalderwood, who had purchased with notice of the pendency of the action.
The motion for opening the judgment and a new trial was granted, upon payment of costs. An appeal was taken by Boston and wife to the supreme court, which was dismissed on the ground that the inferior court had granted all the relief sought. The condition of granting the rehearing — the payment of costs — was not complied with, the costs never having been paid. It was a condition precedent, and therefore the judgment stands as it was originally entered, and this plaintiff is a purchaser with full notice of it and all the proceedings had in the action, and is in no better condition, and is entitled to no more favorable consideration, than would be Boston and wife, if they had retained their interest and were plaintiffs here.
It then remains to be seen whether, if Boston and wife were the plaintiffs—
1st. The judgment is void, and should be set aside; or,
2d. It should be opened, to allow them or this plaintiff to defend.
As I have stated, Boston and wife had a complete remedy by the re-hearing ordered, and if necessary, by an appeal to the supreme court in the other action, which if they had availed themselves of— and there is no excuse given why they did not — this action would have been unnecessary. If the action and judgment of the superior court had been at law, and Boston and wife still retained their interest in the property, and had instituted this action, no sufficient case appears by the pleadings and proofs, to authorize a court of equity to interfere and open the judgment, and grant them a re-hearing or new trial. This plaintiff, as their successor in interest, having purchased *165with notice, is certainly entitled to no greater consideration, when he invokes the aid of this court in their and his own behalf.
The complaint must be dismissed, and judgment entered for defendant with costs.