FOURTH DEPARTMENT, JULY TERM, 1895. [Vol. 88. veyed the fifty-six acres to the defendant Frank B. Jenks subject to the mortgage given in 1874 to Pardee, and then held by the defendant Isaiah Cuddeback, which Frank B. Jenks assumed and agreed to pay. This mortgage on the 7th of February, 1888, was held by the defendant Frank L. Cuddeback. Upon the sale on the 7th of February, 1888, under the loan commissioners' mortgage, the fifty-six acre piece was first put up and was bid off by Frank L. Cuddeback for just the amount of the mortgage, interest and costs, thus releasing entirely the seventy-nine acres. After the sale and on the same day William D. Hunt, by warranty deed dated and recorded that day, conveyed to the defendant E. W. Childs the seventy-nine acres with other property for the consideration of $3,000, and April 1, 1890, Childs, by warranty deed recorded May 27, 1890, conveyed the seventy-nine acres to the defendants Sweeney, who now own the same. Frank L. Cuddeback, the purchaser on the sale, conveyed the fifty-six acres to defendant Isaiah Cuddeback by deed dated June 6, 1890, and recorded June 10, 1890, and he, by warranty deed dated the 7th of March, 1892, and recorded June 3, 1892, conveyed the same to the defendant Anderson, who now owns the same. In the action against Quinn on the warranty, the defendant therein alleged, among other things, that by the covenant in the deed from Daniel to John Curtin, the seventy-nine acres became primarily charged with the whole of the loan mortgage; that the charge continued down to the time of the sale and was known to Frank B. Jenks as well as to Hunt, the owner of the seventy-nine acres; that Jenks was present and took part in the sale; that the holders of the loan mortgage sold the fifty-six acres first at the request of Hunt and with the consent of Jenks, and without any objection from him or demand that the seventy-nine acres should be first sold, and that Jenks is estopped from claiming on the warranty. It appeared on the trial that Quinn was duly notified of the sale and promised Jenks to be present and protect him as to the fifty-six acres; that he failed to be present on account of sickness; that the loan commissioners sold the fifty-six acre piece first, under the mistaken idea that it was first liable. It was held that the failure to sell the piece primarily liable did not make the sale void and that the purchaser acquired a valid title, and that the failure of Jenks to Hun.] FOURTH DEPARTMENT, JULY TERM, 1895. object at the time of the sale did not estop him from claiming on the covenant, although, if he had objected, the result would have been different. In the Court of Appeals, upon the affirmance of the judgment, importance was given to the circumstance that it was not found that Jenks had any actual knowledge of the covenant in the deed from Daniel Curtin or its legal effect, and it was held that Jenks was not charged with constructive notice from the record of Daniel's deed of the covenant herein. The present action is against the owners of both pieces at the time of the sale, and those to whom conveyances of either part have been made since. The loan commissioners are also parties. It was held by the Special Term: "(1) That, upon the evidence and proofs in this case, the plaintiff is not entitled to any equitable relief in this action; (2) that, at the time of the trial of the action of Frank B. Jenks against the plaintiff, Thomas Quinn, and the procurement of the judgment sought to be set aside by the plaintiff by this action, all the facts set forth by the plaintiff in his complaint herein would have been available and admissible as a defense in said action; that the plaintiff knew all of said facts at the time, or could have acquired the information by diligent and careful labor in the preparation of said case for trial, but negligently omitted to do so, and persisted upon the defense interposed by him in said action, and prosecuted appeals from the decision rendered therein to the Court of Appeals, and took no action to enforce his claimed equities until after the title to both parcels of land covered by the loan mortgage had passed by sale and conveyance to other parties, who became purchasers thereof in good faith and for value, without notice of the equities which plaintiff asserts; (3) that the matters presented by the plaintiff's complaint in this action were passed upon, or might have been passed upon, presented and considered in said action; (4) that there was no fraud practiced on the trial of said action by the plaintiff, Frank B. Jenks, or any other person on his behalf, or for him in the procurement of the said judgments by which the said Thomas Quinn, defendant, was prevented from interposing or availing himself of the facts set forth in the complaint herein as a defense in said action; (5) that there are no facts proven in this action upon which the foreclosure sale under the loan mortgage should be set HUN-VOL. LXXXVIII. 55 FOURTH DEPARTMENT, JULY TERM, 1895. [Vol. 88. aside; (6) there are no facts proven in this action upon which the judgment of Frank B. Jenks v. Thomas Quinn, or the foreclosure of the loan mortgage, ought to be set aside; (7) that this action, being an action in equity, and Jenks being free from any fraud or intentional injury to the plaintiff, this action cannot lie against any of the defendants herein; (8) that the judgments recovered by Frank B. Jenks against the said plaintiff are valid and legal judgments, and the said Frank B. Jenks, plaintiff, is entitled to enforce and collect the same." There is evidence tending to show that, before the sale, the defendant Hunt claimed that the fifty-six acre piece was chargeable with its proportion of the loan mortgage, and that Quinn, representing that piece, had agreed with Hunt to be present at the sale and contribute its share toward the payment of the mortgage. At the time of the sale Quinn was not present. The defendant Hunt, together with Charles I. Hunt, who acted for the owners of the sixteen acres deeded to George W. Hunt in 1868, and defendant Frank L. Cuddeback, who held a subsequent mortgage on the fiftysix acres, raised the money, which was paid to the loan commissioners on the sale, each contributing according to the valuation of their respective parcels. There was evidence tending to show that the sale of the fifty-six acres first was not by the request of the defendant Hunt, but at the instance of one of the commissioners, he being misled by an error in a search. It is in effect found that there was no fraud or conspiracy on the part of any of the defendants, and there is evidence sufficient to sustain this view of the case. So far, therefore, as the plaintiff seeks to overturn the judgment in the case of Jenks v. Quinn, by reason of such alleged fraud or conspiracy, the present action has no basis. But the plaintiff claims that an essential circumstance in the determination of the case of Jenks v. Quinn was the absence of a finding that Frank B. Jenks had actual notice of the covenant in the deed from Daniel to John Curtin, and that in the present case he has shown the fact of such actual notice. The evidence, however, on that subject is contradictory, for Jenks testifies that he never had any actual notice of the covenant of Daniel Curtin. Be that as it may, the issue as to such notice was fully raised in the former case, Hun.] FOURTH DEPARTMENT, JULY TERM, 1895. and Quinn had full opportunity to try that issue. No good reason is presented for trying it over again in this case, within the wellsettled rule on that subject. In Mayor, etc., of N. Y. v. Brady (115 N. Y. 599) it was held, as summarized in the head note, that "No court has authority to vacate and set aside a judgment of a court of co-ordinate jurisdiction upon the ground that the contract upon which it was based was fraudulently obtained, or that there had not been an honest and fair performance thereof, in the absence of proof that the defendant in the action wherein the judgment was obtained was prevented by some act or contrivance of the plaintiff, or by some accident unmixed with negligence of himself or his agents, from prosecuting his defense therein. “The fraud which will authorize one court in a collateral proceeding to revise the judgment of another court is a fraud practiced in the procurement or concoction of the judgment, by which the defendant was prevented from availing himself of some defense. "Ignorance of facts constituting a defense does not excuse the omission of a party to make it, or entitle him to the aid of equity, unless it can be shown he could not have acquired the information by diligent and careful labor in preparing the cause for trial." In view of the law as thus laid down, we are of the opinion that the trial court did not err in holding that no sufficient reason existed for setting aside the judgments in Jenks v. Quinn as invalid. Assuming those judgments to be valid, is it shown that the court erred in refusing to set aside the foreclosure sale? The plaintiff, by reason of sickness, was unable to attend the sale, but he took no steps to have any one else appear for him. He knew immediately thereafter that the fifty-six acres had been sold, and that his liability on the warranty would be enforced, and still he took no steps to set aside the sale until four years afterwards, and until, as the trial court finds, the title to both parcels had passed to purchasers in good faith for value, without notice of plaintiff's equities. The plaintiff says that he did not know, until just before the commencement of this suit, in March, 1892, that the funds to pay the bid on the sale were raised by contribution from the owners of the other pieces in association with the purchaser Cuddeback. Still, for aught that appears, he might readily at any time after the sale, by reasonable inquiry, have found out all about it. He knew from the start the main fact, FOURTH DEPARTMENT, JULY TERM, 1895. [Vol. 88. which was that the fifty-six acres had been sold, without right as he claimed. Instead of attacking the sale he elected to defend the suit on his warranty. But the plaintiff claims that the purchasers under William D. Hunt are chargeable with knowledge of the existence of the loan mortgage and of the covenant of Daniel Curtin. To this it is replied that Hunt held under a sale upon the mortgage given to Pardee, which was in renewal or substitution for a purchase-money mortgage that was prior to Daniel Curtin's covenant, and that equitably, therefore, Hunt's title was not subject to that covenant. It is also suggested that the deed from Daniel to John Curtin, in which was the covenant referred to, was not a link in the title of the seventynine acres, and so the doctrine of constructive notice does not apply. (Acer v. Westcott, 46 N. Y. 384.) The covenant was not referred to in the deed from John to Daniel. There was proof that the purchaser from Hunt, the defendant Childs, had no actual notice of the covenant of Daniel. If there was constructive notice, still he had a right to believe that the sale was legal, as it was finally decided to be, and that it operated to discharge the mortgage. He knew that his grantor advanced his proportion, and he was informed that the other owners had agreed to pay the balance. The trial court was, we think, justified in its conclusion that Childs and his subsequent grantees, the defendants Sweeney, were purchasers in good faith for value and without notice of plaintiff's equities. There is also evidence tending to show that the present owner of the fiftysix acres, the defendant Anderson, purchased in good faith without any knowledge or information that the plaintiff claimed that the sale was, as to the purchaser, invalid. As the case stands we cannot properly say that the court erred in holding that the plaintiff was not entitled to equitable relief. It is not a case where there has been no change in the situation as in the case cited of Vilas v. P. & M. R. R. Co. (123 N. Y. 440). It is argued on the part of the appellant that the amount of the recovery in the warranty suit was inequitably large, and that relief should be given here. On the contrary, we must assume that the amount there allowed was correct. All the facts in regard to that subject were before the court, or the defendant there had full opportunity to present them. In fact, practically all the material facts |