17 How. Pr. 477 | N.Y. Sup. Ct. | 1859
opposed, read an affidavit showing that on December 29, 1858, the summons was inclosed to the sheriff of Westchester county, to be served on Livingston and wife; and contended that under the latter part of section 99 of Code, the action was commenced as to Livingston on that day, and that under the amendment of 1858 to section 132 of Code, Bortano, &c., were subsequent purchasers, and bound by the judgment.
The provision in the latter part of section 99 of Code, making an attempt to commence the action equivalent to its commencement when the summons is de
The purchaser of mortgaged premises, objects to the title as defective, and moves to be discharged from the purchase, and to have the ten per cent, paid by him refunded.
1. Because the owners of the equity of redemption are not made parties.
The lispendens was filed with the complaint in the clerk’s office on 29th December, 1858, but the summons was not served on the defendant Livingston and wife until 26th January, 1859. On the 13th November, 1858, Livingston and wife conveyed the mortgaged premises to Bortano and others, but the deed was not recorded until 18th January, 1859, and these grantees were not parties to the action.
I have heretofore held that a lispendens filed before service of the summons becomes operative on such service, and giving that effect to the lispendens in this case, it became operative on the 26th January, 1858, as to Livingston and wife. (Benson a. Sayre, 7 Abbotts’ Pr. R., 472, note ; see also Waring a. Waring, 7 Ib., 472.)
The court is not deemed to acquire jurisdiction until the service of the summons (Code, § 139), and until served on each defendant, the action as to him is not commenced. (§ 99.) The provision as to delivering the summons to the sheriff is limited only to the statute of limitations.
The amendment of 1858 (Laws of 1858, 491), does not remedy the difficulty. If the summons had been served on Livingston and wife before the deed from Livingston to Bortano had been recorded, then the amended section of 1858 would have applied, and the notice of lis-pendens filed previous would have been effectual against the grantees; but neither before nor after the amendment of 1858 was the lispendens of any value, until the action was actually commenced against the defendant sought to be affected by it.
The amended section of 1858, places a purchaser whose deed is not recorded in the same condition as if he were a party. If
2. The proof of service of the summons by a certificate of the sheriff of Westchester, of a service in the city of ISTew York, is bad. The sheriff of Westchester had no authority to do official acts out of his county, and his certificate therefor was not proof, but this difficulty can be remedied by filing an affidavit of service nv/nc pro tunc.
3. The summons should have been signed by the plaintiff or his attorney (§ 128), and the printed name of the attorney was a nullity. As the copy served was correct, the plaintiff might also file a copy properly signed nunc pro tnmc.
4. The same remark applies to the complaint on file—as well as the other errors in practice. They can be remedied on application to the court.
For the first reason, however, I am of the opinion that the title is not perfect, and that the purchaser should not be compelled to complete his purchase.
The motion must be granted to discharge the purchaser from his purchase, to direct the repayment of the ten per cent, and interest, and that the plaintiff pay a counsel fee, and his disbursements in examining the title, with $10 costs of motion.
