age on grievance day. From the order of reversal in the Appellate Division the plaintiffs have appealed to this court.

There was no authority on the part of the clerk or anybody else to enter such a judgment us was entered in this action. The trial judge had directed judgment dismissing the complaint. If such judgment had been entered it would have afforded no basis for an appeal to the Appellate Division by the defendant. There is no practice in any system of jurisprudence, so far as we know, which permits a successful litigant to review a judgment in his own favor. The fact that the judgment was not in conformity with the decision was apparent upon a mere inspection of the record; and that fact required a reversal of the judgment, not be cause of any supposed error in the findings upon which it was founded, but for the simple and manifest reason that it was essentially different from the judgment which had been directed by the trial court. The learned Appellate Division should have reversed and set aside the judgment on this ground alone and remitted the cause to the Special Term for the entry of a judgment in accordance with the direction contained in the decision. This view leads to a modification of the order of the Appellate Division which is now brought here for review, so as to direct that portion of the Special Term Judgment appealed from be reversed and set aside solely on the ground that it does not conform to the decision of the trial court, with a further direction that the case be sent back to the Special Term for the entry of a proper judgment.

It is evident that the entry of a judgment in this case, different from that authorized by the decision, was due to the desire of the defendant to review the finding of the trial Judge which declared a portion of the assessment to be invalid. This desire can be ascribed only to the idea that such finding constituted an adverse adjudication upon the validity of the assessment which would be binding upon the defendant in any other Judicial proceeding. That idea, if it existed, can only be ascribed to a misapprehension which seems to be by no means uncommon in the profession as to the effect of a finding which is not necessary to sustain the judgment actually directed in the case. Here, as has already been pointed out, all that the trial court really decided was that whether the assessment on the 19 lots was valid or not, the defect relied upon to invalidate it appeared upon the face of the proceeding and, therefore, did not constitute a cloud upon the plaintiffs' title so as to enable them to maintain an action to remove a cloud upon their title. The judgment which the trial court ordered was not a judgment invalidating the assessment, but a judginent dismissing the complaint for the reason stated; and the finding as to the invalidity of the assessment on the 19 lots 78 N.E.-5

did not thereby become in any wise available to the plaintiffs as evidence that the assess ment was invalid. The judgment which the trial court ordered was an adjudication not in favor of the plaintiffs, but against them; and if the proper judgment had been entered the defendant would have had no reason to appeal therefrom.

It is an established principle relating to res adjudicata "that a former judgment is not available in a subsequent action for another cause, between the same parties, to establish any fact not material to the adjudication actually made in the former action." Cauhape v. Parke, Davis & Co., 46 Hun, 306; affirmed in 121 N. Y. 152, 24 N. E. 185. The case cited was a suit upon a contract in which the plaintiff to prove the existence of the contract put in evidence the judgment roll in a prior suit between the same parties wherein a referee had found that such a contract was made, but had refused to grant any relief upon the ground that he had no jurisdiction. It was held that inasmuch as the referee had denied the plaintiff any relief on account of this contract in the prior action, his finding that it existed was not a binding adjudication upon the defendant in the second suit. As was said in this court by Andrews, J.: "Whether the alleged contract was valid or void, the point of jurisdiction was decisive against any recovery thereon. The finding that there was such a contract was, at most, mere inducement or introductory to the finding of want of jurisdiction. It was not an essential ground upon which relief was denied, and the denial of relief did not rest upon it." 121 N. Y. 155, 24 N. E. 186. So in the present case, whether the assessment upon 19 lots was valid or invalid, the point that the defect, if it was a defect, appeared upon the face of the proceedings was decisive against the maintenance of an action to prevent a cloud upon the plaintiffs' title. finding that the assessment was invalid was, at most, mere inducement or introductory to the finding that the defect, if any, was so manifest as to preclude the plaintiffs from maintaining an action of this character. The denial of relief embodied in the direc tion that the complaint should be dismissed did not rest upon the actual existence of the alleged defect, but upon the proposition that the objection to the assessment, whether good or bad in law, was patent upon an inspection of the assessment roll itself.

The

It is suggested not only that the form of the judgment was agreed upon by the attorneys for both parties, but that it was entered by consent. Of course, if it was entered by consent, no matter how much it differs from the judgment directed by the trial court, there could be no right of appeal. The fact that it was so entered, however, does not appear upon the face of the papers, and if it were sought to prevent the review by the Appellate Division upon this ground

it should have been made the basis of a motion to dismiss the appeal upon affidavits, so that the appellant before that court would have had an opportunity to controvert the allegation.

CULLEN, C. J., and O'BRIEN, HAIGHT, VANN, and WERNER, JJ., concur. HISCOCK, J., not sitting.

Order modified, without costs to either party in this court or in the Appellate Division.

(185 N. Y. 427)

DOWNEY v. SEIB.

(Court of Appeals of New York. June 12, 1906.)

VENDOR AND PURCHASER-MARKETABLE TITLE -POSSIBLE ISSUE-RIGHTS.

Plaintiff's father conveyed the premises in question to her for life, with remainder to her children living at the time of her death and the issue of any deceased children, and, on her death without lawful descendants, to his sons or the survivor of them and the issue of deceased sons. It was admitted that the father intended to convey the fee, and thereafter the sons who then had living issue executed a deed to plaintiff, who was still childless, purporting to convey the fee. After the conveyance plaintiff sued the sons and her father's widow and executor, and in such suit procured a decree reforming the original deed so that it purported to convey the premises to her in fee. Held, that plaintiff's rights being adverse to the children of the sons and to her own unborn children, neither of which classes of children were represented in the action, they were not concluded by the decree reforming the deed, and hence plaintiff had not a marketable title to the fee.

Scott was worth about $100,000. He had four children, the plaintiff and the three sons already named, who were then his only descendants. Shortly before he gave the deed, being well advanced in years, he told his children at a family consultation that he was about to make a will, and that he intended to give Margaret the house in question, which he had bought for her and in which she then resided. All of the children approved of this plan, whereupon he told the plaintiff that he would convey to her accordingly, and shortly thereafter he informed her that he had done so and had filed the deed for record. Acting on the belief that this was true, she expended a large sum of money in repairing and improving the house and premises. About the 20th of October, 1892, the plaintiff first learned that the deed did not convey the premises to her absolutely and in fee simple, but only for life, with remainder over, as already stated. She at once informed her father of the fact, and he said that he intended to make her an absolute conveyance, but the lawyer who drew the deed had made a mistake, which he would have corrected at once by a new deed. John, James, and William Scott, on learning of the mistake, promptly united in a conveyance of the premises to the plaintiff with full warranty. John Scott, Sr., was ill when the mistake was discovered, and, rapidly growing worse, died on the 5th of November, 1892, before he could execute the new deed, as he had promised. The plaintiff was then about 30 years old, and, although she had been married for more than seven years, she had never

Submission of controversy on agreed facts by Margaret F. Downey against George Dan Seib. A judgment was directed in favor of defendant by the Appellate Division (92 N. Y. Supp. 431), from which plaintiff appeals. Affirmed.

The controversy arose over the title to land on Jefferson avenue in the borough of Brooklyn through the claim of the defendant that he was not obliged to perform his contract of purchase because the title was not marketable.

The history of the title, as set forth by the parties in their agreed statement of facts, is substantially as follows: On the 13th of November, 1889, one John Scott, Sr., who then owned the premises in question, and his wife Ann, conveyed the same to their daughter Margaret, who is the plaintiff in this action, for life, with remainder over to her children living at the time of her death, and the issue of any deceased child, and upon her death without lawful decendants to her brothers, John, James and William Scott, who were parties of the third part, "or to the survivors or survivor of them living at the time of the death of the said Margaret and the lawful children and issue, if any, of such of said three sons as may then be dead.” At the time he executed said conveyance Mr.

expected none. This fact was known to her father, who in his will, executed after the deed, left her no part of his estate, because he believed that he had already made suitable provision for her by the absolute conveyance of said premises. Early in 1893 the plaintiff herein, alleging the foregoing facts among others in her complaint, commenced an action against her mother, her three brothers, none of whom had then been married, and the executor of her father's will, for a reformation of said deed so as to make it conform to the intention of the parties when it was executed. That action, which was not defended, resulted in a judgment, entered on the 2d of November, 1893, reforming the conveyance from John Scott, Sr., to his daughter by making it absolute in form and directing that the register of Kings county should, by apt and proper words, insert in the margin of the liber where said deed was recorded a reference to such judgment. Said William Scott died before this controversy arose, having never been married. Some years after the rendition of said judgment, John Scott, Jr., and James Scott, sons of John Scott, Sr., married, and their respective wives are liv ing. John has two children, and James one. The plaintiff has no issue, and her husband is still living. She is now 41 years of age,

has been married 19 years, and is not likely to become a mother owing to a structural defect in the organs of generation. Upon submitting the controversy the plaintiff demanded judgment that the defendant perform his agreement to purchase said premises and pay her the balance of the purchase money. The defendant demanded judgment that the plaintiff could not convey the premises, as she had agreed, by a good and sufficient deed in fee simple, for a return of the sum of $200 paid on account of the contract of purchase, and the sum of $75 for the reasonable expense of searching the title. The Appellate Division rendered judgment relieving the defendant from his contract, and awarding judgment against the plaintiff for the sum of $275, besides costs. From that judgment the plaintiff appealed to this court. Isidor Wels, for appellant. Isaac Ringel, for respondent.

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VANN, J. (after stating the facts). John Scott, Sr., probably could not write, for he signed the conveyance in question as a marksman, and perhaps he could not read. At all events, he did not understand that cumbersome and complicated instrument, which, with its parties of the first, second, and third parts, its reversions, remainders, and wealth of technical words, doubtless reflected the learning of the scrivener better than the instructions of the grantor. The unfortunate result is a title in the air, and unmarketable perhaps for generation. There would be little difficulty were it not for the action, unselfish and well intended, but not well advised, of the remaindermen in conveying to the life tenant before the judgment of reformation was rendered. While they wished simply to correct the mistake of their father so far as they could and to give their sister a good title, they created such a situation as to leave no one to be made a party to the action to reform the deed, who represented unborn children, and who through his own interest would be presumed to see that there was a fair trial and a just disposition of the case.

It is well settled, as stated by Judge Earl in a recent case, that, "where an estate is vested in persons living subject only to the contingency that persons may be born who will have an interest therein, the living owners of the estate, for all purposes of any litigation in reference thereto and affecting the jurisdiction of the courts to deal with the same, represent the whole estate and stand not only for themselves, but also for the persons unborn. This is a rule of convenience and almost of necessity." Kent v. Church of St. Michael, 136 N. Y. 10, 17, 32 N. E. 704, 18 L. R. A. 331, 32 Am. St. Rep. 693. After distinguishing Monarque v. Monarque, 80 N. Y. 320, upon the ground that the court took jurisdiction of that action only by consent, and that therefore its adjudication bound only those who consented

and could not bind persons not in being, the learned judge continued: "That case did not determine that in a proper action for the construction of a will persons not in esse could in no case be concluded by the judgment rendered therein. That they could be concluded I have no doubt, if the parties to the action properly brought were vested with the whole title, subject merely to the contingency that it might open and let in persons thereafter to be born." So Mr. Freeman, in his valuable work on Judgments, said, in section 172: "If several remainders are limited by the same deed, this creates a privity between the person in remainder and all those who may come after him; and a verdict and judgment for or against the former may be given in evidence for or against any of the latter." See, also, Black on Judgments, § 554; 24 Am. & Eng. Encyc. (2d Ed.) 759. The principle upon which the rule above stated rests is that the tenant of the first estate virtually represents the subsequent estates, because he has a common interest with the other parties in defending. Mere privity in blood does not authorize one party to defend the interest of another. Thus, again referring to Mr. Freeman, we find that "Kin ship, whether by affinity or consanguinity, does not create privity, except where it results in the descent of an estate from one to another. Therefore there is no privity between husband and wife, or parent and child, or other relatives, when neither of them has succeeded to an estate or interest in property formerly held by the other." "It is essential to privity, as the term is here used, that one person should have succeeded to an estate or interest formerly held by another. He who has so succeeded is in privity with him from whom he succeeded, and all the estate or interest which he has acquired is bound by the judgment recovered against his predecessor while he held such interest or interests." Freeman on Judgments, § 162. "If a person is bound by a judgment, as a privity to one of the parties, it is because he has succeeded to some right, title, or interest of that party in the subject-matter of the litigation, and not because there is privity of blood, law, or representation between them, although privity of the latter sort may also exist." Black on Judgments, § 549. While the learned authors, who are well supported by authority, may refer particularly to cases where the successor has taken the very title of the party against whom the judgment is recovered, we cannot see why the principle is not equally applicable to the case of the holder of one estate and the tenant of the subsequent estate. The case of McArthur v. Scott, 113 U. S. 340, 5 Sup. Ct. 652, 28 L. Ed. 1015, is instructive, if not controlling, on the subject. There after-born remaindermen were allowed to enforce a trust in lands devised by their grandfather under a will, which was adjudged void in an action brought and decided before their birth. Mr. Justice Gray, speaking for

the court, recognized the general rule as to parties not in being, but he said: "In every case there must be such parties before the court as to insure a fair trial of the issue in behalf of all." The parents of the plaintiffs in that action were parties, but, as stated by the court, had no interest to support the will though they had an interest to destroy it. There were charges in the complaint that the suit was fraudulent, but these were denied by the answer, and the court held that they should be considered as disproved. The decision rested on the ground that there was no real representation in the action of the subsequently accruing interests. This is made plain in a later case where Mr. Justice Bradley, in commenting upon McArthur v. Scott, said: "There was no party in the case to represent the will, or the interests created by it, or the legal estate which supported those interests. This was the special ground on which the decision in McArthur v. Scott was placed, as is fully expressed in the opinion." Miller v. Texas & Pac. Ry. Co., 132 U. S. 662, 671, 10 Sup. Ct. 206, 33 L. Ed. 487.

In the present case, by the conveyance from her brothers, the plaintiff had acquired the first freehold estate, namely, the remainder in fee after her own life estate, subject to be divested by her leaving issue before her death. Therefore she held the estate which in the ordinary course of things would make it to her interest to uphold the deed, but she was the very party who was trying to destroy it. She could not be plaintiff and defendant in the same suit. She in fact represented herself only and could not represent her after-born children or those of her brothers. The interest of her brothers was the same as her own, because they had their warranty of title to protect. We

are inclined to the opinion, therefore, that the judgment recovered by her did not bar the title of persons born after the judgment was rendered who were not represented by any party to the action. At least, the question is too doubtful to warrant the courts in compelling the purchaser to take title under such circumstances, for the persons entitled to raise the question are not parties to this controversy. As, since the date of the judgment of reformation, children have been born, it may be that the plaintiff can bring a new action, and by making them parties clear the title. In such an action those children would represent all who might be born thereafter, for they would have a common interest. That remedy, however, can have no effect on this action, and our present duty is to affirm the judgment appealed from. While in this case, as we feel well assured, there was neither furtive motive nor evil result in the judgment of reformation, still, if we sustain the position of the plaintiff, our adjudication will declare the law to govern all cases of like character arising hereafter, and the next to come before us may involve the robbery of children by a judgment rendered before they were born, with no one to represent or defend them. general rule, established by the decision of a question of law, is much more important than the effect in a particular case.

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The judgment should be affirmed, with disbursements, but, under the circumstances, without costs.

CULLEN, C. J., and O'BRIEN, HAIGHT, WERNER, and HISCOCK, JJ., concur; WILLARD BARTLETT, J., not sitting.

Judgment affirmed.

(185 N. Y. 308)

TAUTPHOEUS ▼. HARBOR & SUBURBAN BUILDING & SAVINGS ASS'N. (Court of Appeals of New York. June 5, 1906.) 1. BUILDING AND LOAN ASSOCIATIONS - BYLAWS.

Where a certificate of stock of a building association certified on the face thereof that it was issued and accepted "subject to the articles of association, by-laws, and terms, and condi tions expressed on the back hereof," the by-laws and articles of association formed a part of the contract, though they did not appear on the back.

2. SAME-MATURITY OF STOCK.

A stock certificate of a building association made the articles of association a part of the contract, and provided that the principal should be payable at any time after 72 months from date of the certificate, but by the articles of association payments were to be made in the order of application for withdrawals, and it was provided that the association should not be obliged to pay out on withdrawing or matured stock more than one-half of the amount received from dues and stock payments in any month. Held that, the provisions of the articles of association and the stipulation of the certificate being inconsistent, the stockholder was entitled to hold the association to the provisions of the certificate for withdrawal after 72 months. 8. ACTION-EQUITABLE RELIEF.

Where, in an action at law on a certificate of stock of a building association, it appeared that a certificate of a number of shares was surrendered by the owner in order to have the same split up, and the result was the issuance of the certificate in question and others, the court was authorized to find that the certificate should have been dated as of the date of the original certificate.

Appeal from Supreme Court, Appellate Division, First Department.

Action by Christopher F. Tautphoeus against the Harbor & Suburban Building & Savings Association. From an order and judgment of the Appellate Division (93 N. Y. Supp. 916, 104 App. Div. 451), reversing upon the law and the facts a judgment of the Special Term in favor of plaintiff and ordering a new trial, plaintiff appeals. Order and judgment of the Appellate Division reversed. Judgment of the Special Term affirmed.

The plaintiff appeals from the order and Judgment, stipulating that upon affirmance by this court judgment absolute may be rendered against him. This action is brought on a certificate of guarantied, 6 per cent. income stock, issued by the defendant, a building and savings association, which reads as follows:

"Number 1,504A. Shares, 10. Shares $100.00 each. Harbor and Suburban Building and Savings Association of New York. Chartered 1888. Operating under New York State Banking Laws. This certifies that Christopher F. Tautphoeus of Manhattan Boro, County of New York, State of New York, is a member of the Harbor and Suburban Building and Savings Association, and has subscribed for and is the owner of Ten shares of Guaranteed 6% Income Stock therein of the par or maturity value of One Hundred

Dollars each. This certificate is issued and accepted subject to the Articles of Association By-Laws and Terms and conditions expressed on back hereof and is transferable only on the books of the Association, after its surrender properly assigned. Given under the Seal of the Harbor and Suburban Building and Savings Association at New York City this first day of December, 1899. Alexander S. Bacon, President. [Seal.] Wm. Oppenheim, Secretary." On the back of the certificate appears the following guaranty: "This certificate is guaranteed: Against any assessments. As to payment of dividends of $1.50 per share, on the first days of January, April, July and October of each year. As to payment of principal sum in United States Gold Coin of standard weight and fineness, or its equivalent, on thirty days' written notice given by the holder to the Secretary, at the Principal Office of the Association, at any time after 72 months from date hereof. As equal to a payment of cash for its face value in the purchase of any piece of real property from the Association." The back of the certificate also contains blank forms of assignment and withdrawal receipt unnecessary to quote.

Hector M. Hitchings, for appellant. Alexander S. Bacon, for respondent.

EDWARD T. BARTLETT, J. (after stating the facts). This action is brought on a certificate of guarantied 6 per cent. income stock, issued by the defendant, dated December 1, 1899. A copy of the certificate is printed above. The plaintiff's contention is that, under the guaranty printed on the back of the certificate, the stock is due and payable at any time after 72 months from date by its express terms; that the date of the certificate is an error, and should have been February 3, 1897, instead of December 1, 1899. If the certificate properly bears date December 1, 1899, this action was prematurely brought; if the correct date is February 3, 1897, the 72 months, set forth in the contract of guaranty, had expired before the summons was served herein. This question of date lies at the foundation of the action.

The defendant makes the technical claim that this is an action at law and the alleged erroneous date of the certificate cannot be changed; that the proper remedy of the plaintiff is a suit in equity to reform the certificate and to recover upon it as so reformed. In the case at bar there is no disputed question of fact. It appears without contradiction by plaintiff's evidence that one George V. Morton was the owner of a certificate of the defendant for 25 shares, par value $2,500, which was dated February 3, 1897; that on or about December 1, 1899, he surrendered this certificate to the defendant to have the same split up; the result was that a certificate for 10 shares was issued by the defendant and is, in part, a