Hitchcock

The complaint in the action of Kane v. Castro et al. alleged “that the defendants Alexander Finance and Charles M. Hitchcock have, or claim to have, some interest in or claim upon said premises hereinbefore described, or some part thereof, as purchasers, mortgagees, judgment creditors or otherwise, which interest or claims are subsequent to and subject to the lien of the plaintiff’s mortgages.” The decree in that action would preclude the present plaintiff from asserting any right acquired from the mortgagor after the execution of the mortgage, but it did not devest him of any rights held paramount to the title of the mortgagor: Freeman on Judgments, sec. 303; Frost v. Koon, SO N. Y. 444; Lewis v. Smith, 11 Barb. (N. Y.) 156; Bank of Orleans v. Flagg, 3 Barb. Ch. (N. Y.) 318. The land of the plaintiff was not subject to the lien of the second mortgage mentioned in the complaint in Kane v. Castro et al., and the plaintiff’s right and estate were in no way affected by the decree in that action, in so far as it provided for the foreclosure of the second mortgage.

The plaintiff and defendant were tenants in common in possession of the land subject to the first of the two mortgages.…