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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 410 The learned judges of the General Term were of the opinion that the judgment in Sanders v. Hart was a bar to a recovery by the plaintiff in this action, and they affirmed the judgment rendered by the trial court on that ground. As the assignee in bankruptcy was a party to that action, it was held that he and his assigns were bound by the determination made therein that title to the premises in question was duly vested in Sarah Hart during her life-time. It does not follow, however, that because the assignee was a party to that action, he was a party to the judgment as rendered and entered, or that because he failed to answer the complaint, he conclusively admitted all the facts alleged therein. If judgment had been entered against him by default, assuming that the court had jurisdiction, it would have been as conclusive, as to all facts properly alleged in the complaint, as if it had been rendered after issue joined, trial had and findings made. (White v. Merritt, 7 N.Y. 352; Gates v. Preston, 41 id. 113; Newton v. Hook, 48 id. 676; Herman's Estoppel Res Adjudicata, § 50; Freeman on Judgments, § 330.)
No judgment, however, was entered in that action, by default or otherwise, in favor of the plaintiff Sanders against the assignee, or any other defendant, nor in favor of any defendant against a co-defendant. The only judgment rendered was in favor of the defendants Hart, against the plaintiff Sanders, dismissing the complaint upon the merits, with costs, and affirmatively judging that the proceedings in foreclosure were valid and vested a good title in Mrs. Hart. While a judgment may determine the ultimate rights of the parties on the same side, as between themselves (Code C.P. § 1204), the judgment in question did not purport to do so, but simply determined certain issues between the plaintiff in the action and the defendants Hart. Neither in form nor effect did it determine the ultimate rights of those defendants and the assignee, as between themselves, nor could such a determination have *Page 413 been required by any defendant unless he had not only so demanded in his answer, but had also served a copy thereof upon the attorney of each defendant to be affected by the determination who had appeared, and personally upon each defendant so to be affected, who had not appeared. (Code C.P. § 521.) A judgment in favor of one defendant against another cannot be entered upon the default of the latter, unless he has had notice and an opportunity to defend as against his co-defendant. (Edwards v.Woodruff, 90 N.Y. 396; Albany City Savings Inst. v.Burdick, 87 id. 40.)
A judgment against a plaintiff in favor of a defendant determines nothing between the latter and a co-defendant, because, although both are parties to the action, they are not "adversary parties," as that phrase is applied to the subject of former adjudication. (Herman on Estoppel, § 138.)
No demand was made in any of the pleadings in the action brought by Sanders, which called upon the assignee to assert his rights or defend his title as against Hart, and no adjudication was made between the assignee and any party to the action. As to him the effect was the same as if no judgment had been entered, or as if he had not been made a party. We think, therefore, that the judgment relied upon, although not pleaded as a bar, is conclusive neither as a bar nor as evidence against the plaintiff in this action, who is in privity with the assignee and bound only as he was bound.
It does not follow, however, that the judgment appealed from should be reversed, as the result may be right, even if some of the reasons given for declaring that result are wrong. Both parties claim title to the land involved through Joseph Hart. The plaintiff has all the interest therein which belonged to said Hart on the 6th of July, 1878, when his petition in bankruptcy was filed. That interest was subject to a mortgage, dated August 17, and recorded November 27, 1876, which was subsequently foreclosed, and the defendants are in the position of purchasers in lawful possession under such foreclosure. The earlier title of the defendants must prevail over the later title of the plaintiff, unless the former is defective. *Page 414 It is claimed that the mortgage was paid before the sale thereunder was made and evidence was given from which the trial court could have found that such was the fact. The trial court, however, did not so find, and no request was made by the plaintiff for a finding upon the subject, and we have held that "an omission to find facts claimed by the unsuccessful party to be warranted by the evidence, can only be taken advantage of by an exception to a refusal to so find upon request duly made as required by the Code." (Travis v. Travis, 122 N.Y. 449, 454.) We cannot look into the evidence for facts to reverse the judgment, except to see whether there is any evidence to support a finding, although we may to sustain it. (Thomson v. Bank ofBritish North America, 82 N.Y. 1; Burnap v. National Bank ofPotsdam, 96 id. 125; Equitable Co-operative F. Co. v.Hersee, 103 id. 25.)
The title of the defendants through the foreclosure of said mortgage is not questioned upon any ground except the one already mentioned, and as that must fail, owing to the practice pursued, we think that the conclusion of the trial court that Mrs. Hart acquired a good and paramount title through the foreclosure proceedings was correct, and that it justified the dismissal of the complaint. As the trial court based its action upon two independent grounds, one of which was right, the result is not affected by the fact that the other, as we have held, was wrong.
The judgment appealed from should, therefore, be affirmed, with costs.
All concur.
Judgment affirmed. *Page 415