RES JUDICATA-USE DEFENSIVELY OF FORMER JUDGMENT BY ONE NOT A PARTY OR IN PRIVITY WITH A PARTY TO FORMER ACTION

Plaintiff sued defendant in a federal district court to foreclose a mortgage lien alleged to exist on defendant\u27s land in consequence of a loan by plaintiff to defendant\u27s predecessor in title. Defendant\u27s land was but a part of the tract originally encumbered. In a prior action in the state court, plaintiff had sought foreclosure of the same mortgage against the holder of another parcel of the mortgaged land on the precise grounds now asserted against defendant. In that action it was held that the entire mortgage had already been discharged. Defendant moved for summary judgment, contending that the former decision estopped plaintiff from reasserting the validity of the mortgage claim. Plaintiff objected on the ground that defendant had not been a party ( or a privy to a party) to the form action. Held, motion granted. Riordan v. Ferguson, (D.C. N.Y. 1948) 80 F. Supp. 973