Coan and Post vs. Osgood and others, 15 Barb. 583

By the Court, Welles, P. J. I think the offer of the submission and award respecting the disputed line, was properly overruled, for the reason that they were not between the same parties, and did not tend to establish title in Magdalene’Osgood. The defendants, by their answer, have set up title in her, and .justified their entry under a license from her. Neither of them had the right to change his ground upon the trial, and show title in himself.

The only effect of the evidence would have been to show title in David Osgood, one of the defendants, or what would have been practically the same thing, to show that David dole, the grantor of the plaintiffs, and consequently the plaintiffs themselves, were estopped from denying his title. If the defendants had justified by virtue of title in themselves, possibly the evidence might have been admissible for David Osgood, the ■only one of the defendants who was a party with Cole to the submission.

It was urged upon the argument, by the defendants’ counsel, that by the deed from David Cole to Magdalene Osgood, David Osgood and others, Magdalene and David were privies in estate of the premises, the division line of which was settled by the award, and therefore that the award bound the former, and consequently would enure to her benefit.

It will not be contended that this award could have any greater -effect upon individuals, not parties to it, by way of an estoppel, than if it had been a judgment or decree of a competent -court upon the same matter; nor will the general rule be denied, that a judgment cannot be evidence for either party in an action -against one who was a stranger to the former proceeding, who had no opportunity to examine witnesses or defend himself, or .to appeal from the judgment.

It is equally well settled that a ■verdict or judgment in a former action, upon the same matter directly in question, is evidence for or against privies in blood, privies in estate and privies in law. It is a mistake, however, to suppose that Magdalene Osgood was privy in estate with David Osgood, so as to be concluded by a judgment or award in his favor, or against him. Mr.

Green-leaf says, “ The term privity denotes, mutual or successive relationships to the same rights of property; and privies are' distributed into several classes, according to the manner of this relationship." Thus, there are privies in estate, as donor and donee, lessor and lessee and joint tenants; privies in blood, as heir and ancestor and coparceners j privies in representation, as executors and testator, administrators and intestate ; privies in Taw, where the law, without privity of bltiod or estate, casts the land upon another, as by escheat.

All these are more generally classed into privies in estate, privies in Mood and privies in law.’^ (1 Gr. Ev. § 189.) In the instances given by our author, of privies in estate, as indeed in the other classes also, they are between persons where one succeeds to the rights of another or, as it is sometimes expressed, where one comes in, in the post, to another; except in the case of joint tenants, where each represents the interest of all; like coparceners, where' all make but one heir. Privity is defined by Mr.

Burrill, in his dictionary, as 11 a derivative kind of interest, founded upon or' growing out of the contract of another, as that which subsists between an heir and his ancestor, between an executor and testator, and between a lessor or lessee and his assignee.” He defines “ privy” to be “ a person who has an interest in an estate created by another; a person having an interest derived from a contract or conveyance, to which he is not himself a party.

Thus, an heir is privy to the conveyance of his ancestor, an executor to the contract of his testator, and an assignee of-a lessor, to the contract of the- original parties.” It will be perceived that none of these relations' which constitute legal privities, existed between Magdalene and David Osgood. They were at most,'tenants i» .common with others, of the locus in quo, by virtue of the deed from David Cole and wife for the forty acres.

Their interests were distinct ; neither held by, through or' under the other, and, as I think, neither could bind or estop the other, by any act or admission without the consent of the other. They were not, as in the case of joint tenants, seised per my et per tout; and no jus accrescendi existed between them.

There is an exception-to the rule that no judgment or verdict can be given in evidence against or in favor of a person not a party or privy to the record; and that is, wherever the matter in dispute is a question of public right; in such case, all persons standing in the same situation as the parties, are affected by it; and the judgment is evidence to support ■ or defeat the right claimed; thus, a.verdict finding a prescriptive mode of tithing, the right of a city to toll, the right of an election of a church warden, a customary right of common, the liability of a parish to repay: a particular road, a public right of way, or the like, is evidence for or against the custom or right, though neither of the litigating parties is named in or claims under those who are parties to the record. (Peake’s Ev. 32.) Upon this principle the cases of Jacobson v.

Eountain, (2 John. 170,) and Gould v. James, (6 Cowen, 369,) referred to by the counsel for the defendants, were decided. The cases of Reed v. Jackson, (1 East, 355;) Case v. Reeve, (14 John. 79 ;) The Company of Carpenters, &c. v. Hayward, [Doug. R. 374;) Phill. Ev. 252-3, N. Y. ed. of 1823; Id. 327-8, ed. of Cowen & Hill of 1839 ; Gr. Ev. § 526, with many other authorities, assert or recognize the same general rule.

I also think .the offer of the defendants to prove an agreement between William Osgood and the Coles .at the time of the survey made by McFadden, respecting what the parties were to purchase from the state, wasj properly overruled, for the reason that it related to the title to real estate. Evidence was received "of the acts of the respective parties, tending to show their possessions respectively at the time referred to, which was as far as it was proper to go.. [Monroe General Term, September 5, 1853. Welles, Selden and T.

Rt Strong, Justices.] Not being able to discover any error in the charge of the judge, or in his refusal to charge, which can be the subject of an exception, I think the judgment at special term should be affirmed. Ordered accordingly.