We ordered, at the last term, an affirmance of the judgment in this case upon two grounds, one that the plaintiff had misconceived his remedy, and the other that he was estopped by a judgment in a proceeding in partition, to which he was a party, from asserting title to the property in dispute. It is now claimed that we were wrong on both the grounds stated, but more especially so in respect to the question of estoppel. It might, perhaps, have been as well to have rested our judgment upon the proposition first suggested, and left the question of the estoppel to be considered in the Superior Court of the city of New York, without any intimation of our opinion upon that question, if the plaintiff should regard any further proceedings in that court necessary to the protection of his rights. It is very certain that the decree, made upon the bill of review by Reed and wife against the plaintiff and other parties, to annul the first partition which he unsuccessfully defended, was conclusive upon him, and that its result divested him of all title he had apparently acquired, by the deed of Mary Child, to lot No. 32. In the proceedings for the second partition he was made a party, and he was a proper party if he had any interest whatever in the premises; and it is provided by statute that, if any person interested in the premises, or having any claim by which he may become interested at any future time, has not been made a party to the proceedings, he may, notwithstanding, be permitted to appear and answer as a defendant by leave of the court. (2 R.S., 319, § 15.) So that he was a proper party, whether he had any present interest in the property or any claim by which he might in the future become interested. Upon the question of estoppel we are unable to see any difference, whether the partition is by an ordinary suit or by a proceeding on petition at law, as originally provided for in the revised statutes, which, in this case, was finally adopted. Proceedings in either form, if properly conducted, would *Page 467 ordinarily conclude all rights of parties which might properly be the subject of consideration in the suit or proceeding.
We did not fail to observe that the plaintiff did, in the proceedings on bill of review, resist the setting aside of the first partition. This he did and was unsuccessful, and the decree in that suit put an end to all his title to lot No. 32, as is now admitted, and it is also urged, as a reason why he did not set up any claim to it in the last partition, that he in fact had no title to the lot, but that he had an equity to compel the defendant to convey the lot to him if it should, in the last partition (as it was), be set off to her in severalty. It seems sufficient to say that, if he had no title to the lot, no amount of alleged estoppel by judgment could do him any harm, and I think we had the impression that the supposed estoppel prevailed only as to the legal title. It may, indeed, be that any equities he is supposed to have, which could arise against the defendant only after the final decree in partition had been pronounced, would not be concluded by the record of that judgment, and, if it now be assumed that such is the exact condition of the plaintiff's right, it makes it only the more certain that he should have interposed, as he might, that affirmative defence in the action of ejectment brought against him, and demanded the relief to which he supposed himself entitled, and it furnishes a more satisfactory reason why our judgment, previously rendered, should not be disturbed.
The circumstance that a party to an ejectment suit may, within a limited period, upon payment of costs, have a new trial as a matter of course, has not the remotest influence upon the present question so far as we can discover.
The motion must be denied, with ten dollars costs.
All concur.
Motion denied. *Page 468