¶11. This is an action to foreclose a mortgage. In consideration of the conveyance to him, the appellant Charles Betcher, the grantee of the mortgagors, in the deed of conveyance assumed and agreed to pay the mortgage debt. On the trial the court ordered judgment that plaintiff recover of Betcher the amount of the mortgage debt and for foreclosure, but the judgment as entered does not adjudge that plaintiff recover of Betcher any sum whatever. This appeal is from the judgment.
¶2Appellant Betcher complains of the order for judgment, and contends that he is not liable on his covenant to pay the mortgage— First, because his grantor never had any title, and never conveyed any, and that therefore the covenant is without consideration; and, second, because there was a prior valid foreclosure sale under the mortgage for a sufficient amount to pay the whole mortgage debt. These questions are not now in the case. The rights of the parties are merged in the judgment, which does not adjudge that plaintiff recover anything of Betcher. The latter cannot complain that the judgment is more favorable to him than the order for' judgment. But, even if he could, he would have to apply to the court to make the judgment conform to the order before he could review that judgment on appeal, on the ground that it did not conform to the order. Harper v. Carroll, 66 Minn. 487, 60 N. W. 610; Bank v. Smith, 57 Minn. 376, 59 N. W. 311.
¶32. The court ordered judgment that the defendants be barred and foreclosed of all right, claim, lien, and equity of redemption in said mortgaged premises, and every part thereof, except only the right to redeem. As we construe the judgment entered, it is to the same . effect. Betcher claims an adverse title, prior and paramount to that of the mortgagors; and, from the findings of the court, it would *76seem that there is some merit in his claim. The point is made that the judgment as entered bars this adverse title, and is therefore erroneous. We are of the opinion that the point is well taken. See Hefner v. Northwestern, 123 U. S. 747, 8 Sup. Ct. 337. Under the circumstances, the judgment should have barred the defendants and all others claiming under them, since the filing of the notice of lis pendens herein, of all interests, rights, liens, and claims held by the mortgagors at the time of the execution of the mortgage, or derived from them since, or else the adverse claim of Betcher should have been expressly excepted from the effect of the judgment. The case should be remanded to the court below, with directions to modify its judgment in conformity to this opinion.
¶4It is so ordered.
¶5An application for reargument having been made, the following opinion was filed on December 6,1897.
¶6Respondent, in his petition for reargument, claims that, as Betcher went into possession under the title on which plaintiff is now attempting to foreclose, Betcher is, while he continues in possession, estopped from asserting his adverse title; and that therefore, as the parties have voluntarily litigated this adverse title, respondent is entitled to judgment forever barring it. Conceding, without deciding, that Betcher is estopped from asserting his adverse title in this action, it does not follow that, plaintiff can permit him so to assert it, and then, by means of such estoppel, deprive him of it. The estoppel is against Betcher’s asserting it in this action, not against his continuing to hold it; and plaintiff cannot use such doctrine of estoppel as a means by which to hold Betcher up, and deprive him of that title.
¶7The petition for a reargument is denied.