Opinion of the Court, per GRAY, J.

the land in controversy. I do not think that an occasional resort to lands, such as what was attempted to be shown in this case in the cutting of grass by Peter B. Benson, would be sufficient to prove occupancy or possession, in the absence of a deed describing and including the land where such an act was performed.

It is not proven here that there was any actual occupancy, or pedis possessio, which was either definite or notorious; and without color of title in, or occupancy by plaintiff's grantors, his claim utterly fails. In my judgment the plaintiff has not proven any foundation or origin of title in appropriation or possession, as he has failed to prove that the premises were ever granted to Peter B. Benson, from whom he claims to derive his title. The rule is well settled by frequent decisions that in an action of ejectment the plaintiff must recover upon the strength of his own title, and he cannot rely on any supposed or actual weakness of his adversary's title. The fact of title in, or of possession by those under whom the plaintiff claims must be shown, otherwise he has failed to show any cause of action, and, consequently, any reason for requiring the defendant to defend his possession.

The opinion at General Term was well expressed, and any further elaboration of our views is not called for by the brief of the appellant's counsel.

The order of the General Term, appealed from to this court, should be affirmed, with costs, and under the stipulation contained in the notice of appeal, judgment absolute is awarded against the appellant.

All concur.

Order affirmed and judgment accordingly.

SICKELS-VOL. LXV.

49

ELIZA W. PARKHURST, Respondent, v. ROBERT H. BERDELL,
Impleaded, etc., Appellant.

Where there is litigation in an action between two defendants therein they
are estopped by whatever is adjudicated as between them, the same as if
the adjudication had been in an action wherein one of them was plaintif
and the other defendant; and in a subsequent action between them the
judgment-roll in the former action is competent evidence to establish
that such an adjudication was made.

An appeal from a judgment does not suspend its operation as an estoppel,
and if competent evidence for that purpose when received, its reception
is not rendered erroneous by its subsequent reversal; and, notwithstand-
ing the reversal, it continues to have the same effect, in the action where
it was availed of as an estoppel, as it was entitled to when received.
The objection, therefore, that the judgment was reversed after its recep-
tion in evidence, is not available on appeal in the subsequent action.
It seems the only relief a party can have, against whom a judgment, which
has been subsequently reversed, has been received in evidence, is to move
in the court of original jurisdiction for a new trial.

In an action for an accounting as to certain securities alleged to have been
loaned by plaintiff to defendant, the wife of defendant as a witness,
upon the examination of plaintiff's counsel, testified, without objection,
as to conversations with her husband when they were alone as to plaintiff's
securities taken by him, his obligations to her for the same, and his
promise to secure her therefor. After cross-examination by the defend-
ant's counsel, he moved to strike out the evidence on the ground that
the conversations were confidential communications, and so the evidence
was prohibited by the Code of Civil Procedure (§ 831.) The motion was
denied. Held, no error; that the objection came too late, and even if it
had been timely, it would not have been available, as the communications
were not confidential within the meaning of the prohibition.

(Argued June 20, 1888; decided October 2, 1888.)

APPEAL from judgment of the General Term of the Supreme Court in the second judicial department, entered upon an order made December 5, 1885, which affirmed a judgment in favor of plaintiff, entered upon the report of a referee.

This action was brought to compel an accounting by the defendant for certain money and securities of the plaintiff had and appropriated by him, and to have the amount found due her declared a lien upon certain land in Goshen in this state. The facts found by the referee, so far as it is now material to state them, are as follows: Sylvester C. Parkhurst, the

Statement of case.

husband of the plaintiff, died in the city of New York, on the 12th day of April, 1867, and at the time of his death he had in his possession and was the owner in his own right of the following property: Two hundred and ninety-two shares of the stock of the Ninth National Bank of New York, of $100 each; fifteen bonds of the Long Dock Company of $1,000 each; United States bonds of the par value of $5,500; five bonds of the Alton and Terre Haute Railroad Company, of $1,000 each; five first mortgage bonds of the New York and Erie Railroad Company of $1,000 each, and ten bonds of a Newark Horse Railroad Company of $500 each. By his will he bequeathed all of the property to the plaintiff, and she took possession and became the owner thereof. She loaned the securities to the defendant Berdell, some of them in the year 1869, and the remainder of them in the year 1870. Soon after borrowing them the defendant sold 147 shares of the bank stock for the sum of $16,530, which he received, and after charging himself with that sum, together with the interest and dividends on the securities remaining unsold which had been collected by him, and deducting therefrom all such sums as he had paid or advanced to the plaintiff, and all other sums which she owed him, there was a balance found due her of $16,000, for which he gave her his note, bearing interest, dated July 1, 1870. He gave her his receipt bearing date January 1, 1870, for the balance of the bank stock unsold and the other securities, as follows:

"Received, Goshen, Orange county, N. Y., January 1, 1870, from Mrs. E. W. Parkhurst 14,500 (145 shares) Ninth National Bank stock; 15,000 (1,000 each) Long Dock bonds; 5,500 (1864's) U. S. bonds; 500 Terre Haute & Alton second mortgage bonds. The above securities have been loaned to me to use, and I agree to return them to her at her request.

"ROBERT H. BERDELL.

"Also five Erie first mortgage bonds; also 5,000 Newark Horse R. R. bonds.

"ROBERT H. BERDELL."

Statement of case.

After the giving of the note of $16,000, the defendant collected from time to time, as the same became due and payable, the interest and dividends on the securities mentioned in the receipt, and from time to time, as she required the same, paid plaintiff portions thereof. On the first day of January, in each and every year after, the receipt was given (except January 1, 1871), up to and including the 1st day of January, 1875, the plaintiff and defendant had an accounting and settlement in which he charged himself with the amount of the note held by her at that time and interest thereon, given by him to her on a previous settlement and accounting, and also with the dividends and interest received by him upon the securities mentioned in the receipt, and credited himself with moneys paid to or for her, and for the balance thus found due to the plaintiff on such settlement he then gave his note bearing interest and payable on demand. On the settlement had January 1, 1875, there was found due her the sum of $34,569.61, for which he gave her his note payable on demand, with interest, which note, with interest, remained unpaid and due to her. Defendant has not returned the securities mentioned in the receipt, although requested by plaintiff to do so, but he has refused to return the same and has converted the same to his own use. On the 24th day of September, 1873, for the purpose of securing plaintiff for the payment of the note then held by her, which had been given on a previous settlement, as above stated, and also for the purpose of giving her security for the return of the stocks and bonds mentioned in the receipt, or the proceeds thereof, defendant executed and delivered to her his bond for the sum of $80,000, dated that day, and also, together with his wife, for the purpose of securing the bond, executed and delivered to her a mortgage for the same sum on certain real property belonging to him in the city of New York, which mortgage was duly recorded. Thereafter, in the year 1874, defendant desiring to convey to the Central National Bank, the lands covered by the mortgage, requested plaintiff to

Statement of case.

execute and deliver to him a satisfaction piece thereof, in consideration thereof, promised and agreed that he would, in lieu thereof, execute and deliver to her another mortgage for a like amount, and for a like purpose, on real estate owned by him in the town of Goshen, Orange county, as a substituted security. On the 23d day of July, 1874, in compliance with his request and in reliance upon his promise, she executed and delivered to him a satisfaction piece of the mortgage for $80,000, and that mortgage was actually thereby satisfied of record, defendant, thereafter, conveyed the land covered thereby to the Central National Bank. On the twenty-fourth day of July, in the same year, defendant, in fulfillment of his promise, executed and delivered to her a mortgage on the Goshen real estate for the sum of $80,000, and she handed the same back to him for safe-keeping, he promising to have it recorded; this he has neglected and refused to do or to return the mortgage to her, although requested so to do, and it still remains unrecorded. A certain instrument, bearing date December 12, 1862, purporting to be a deed of trust by defendant to Sylvester C. Parkhurst, for certain lands in the city of New York, was never delivered by him, nor was it intended that it should be delivered, and it was not intended to be an operative instrument or to be carried into effect as between the parties to it or as between them or either of them and the cestuis que trustent named in the trust deed; nor was the trust agreement between him and Parkhurst, of the same date as the trust deed, intended when executed to be carried into effect as between them or either of them and the cestuis que trustent, named in the trust deed. The stock and bonds mentioned in the receipt, above set out, were, on the 6th day of November, 1875, the day when this suit was commenced, and ever since have been, of the value, in the aggregate, of $52,000, which, with the interest thereon from January 1, 1875, was chargeable to the defendant.

The referee found, as conclusion of law, that the plaintiff was entitled to judgment against the defendant for $125,620.80,