This case was referred to a referree to try the issues. Upon the trial the referee dismissed the complaint. The plaintiff appealed to the general term, which decided that the referee erred, and that upon the facts found by the referee the plaintiff was entitled to equitable relief and after settling the amount due on the mortgage, gave a judgment allowing the plaintiff to redeem on payment thereof. It appears to me the general term had no authority to render such a judgment. By § 330 of the code the appellate court may reverse, affirm or modify the judgment appealed from, and may if necessary order a new trial, and by § 10 this power is conferred on the court of appeals. This is the extent of the power possessed by the appellate court. In this case the referee dismissed the complaint and rendered judgment for the defendant. This judgment the court could reverse, and if necessary could order a new trial, and they did reverse the judgment, because they set aside the dismissal of the complaint in favor of the defendant. But they went further, and rendered a judgment in favor of the plaintiff. Such a judgment was neither an affirmance or a modification of the original judgment, but a rendition of an entirely different judgment, in favor of another party. Such *Page 544 a course must work great injustice to the party whose judgment is reversed. He may have exceptions to rulings upon the trial which he loses the opportunity of reviewing, and which may have excluded evidence that would have materially affected the decision. It is said he should have excepted and made his bill of exceptions if he wished to preserve his rights. But the successful party has no right to appeal. The 348th section of the code only allows an appeal from a judgment, and not for exceptions merely. The notion of a successful party appealing from a judgment in his favor might be very acceptable to his debtor against whom he had obtained a judgment, but not very beneficial to the creditor, who thereby would stay the collection of the debt due him, for fear his adversary might appeal and obtain a judgment in his favor. I doubt whether any court in this state would consent to hear argued a bill of exceptions where the judgment was rendered in favor of the party appealing. In Astor v. L'Amoreux, (4 Seld. 107,) this court held that the general term erred in reversing a judgment in favor of the plaintiff, and ordering judgment for the defendant. The same rule should be applied to this case. It becomes, therefore, necessary to inquire whether the referee erred in dismissing the complaint, in order to decide whether a new trial should be granted.
The complaint states facts, and asks for relief which could have been granted by the referee to the full extent to which the general term have rendered judgment in his favor, unless it be necessary for the plaintiff to tender the amount due before commencing his action.
The finding of the referee is that Ephraim Beach conveyed the whole estate to the plaintiff; that Beach resided on a portion of it, and received the whole of the rents and profits; but there is no finding that the conveyance was fraudulent, or that the plaintiff was not a bona fide holder. In the absence of any such finding we are bound to presume the contrary, and that the conveyance did in reality pass the title to *Page 545 the plaintiff. He was then, if a bona fide holder, entitled to the relief sought, and the referee should not have dismissed the complaint. Upon the whole I think justice will be promoted by sending this case back to the referee for a new trial, to give the parties an opportunity to review the case after having the opinions of the courts above. And in order that the proper judgment may be rendered by the referee, the judgment should be reversed, and a new trial ordered.
WRIGHT and JOHNSON, JJ., concurred with INGRAHAM, J.
Judgment affirmed.