14 Daly 470 | New York Court of Common Pleas | 1888
A mortgage, like a deed, by an infant, is said to be voidable, but not absolutely void (Thomas on Mortgages 134, and cases cited); but an exception has been made with regard to conveyances by a wife joining with her husband in order to release her dower, and such a deed by an infant feme covert is said to be absolutely void (Sherman v. Garfield, 1 Denio 329; Sanford v. McLean, 3 Paige 121). But whether the mortgage was, as to her, voidable only or absolutely void, she had a defense on either ground to the foreclosure, and could have pleaded it (Lewis v. Smith,
As Mrs. Feitner might have pleaded infancy in the foreclosure, the decree in the suit is binding upon her, notwithstanding the fact that she was an infant at the time it was entered, and the failure to have a guardian ad litem appointed for her.g The Court of Chancery had jurisdiction of. the subject-matter and of the parties. Its decree was therefore not void, but voidable only, and might have been opened and set aside upon motion of this plaintiff seasonably made. It was not necessary to serve her with the subpoena. Service upon her husband for her was sufficient in an action of the character of that under consideration. In an action for the foreclosure of a mortgage, where the wife has no interest in the property except an inchoate right of dower, service against the husband and wife on the husband alone is a good service on both (Ferguson v. Smith, 1 Paige 421). On a bill to foreclose a mortgage executed by husband and wife the subpoena may be served upon the husband only. Service upon the wife is only necessary where the proceeding is against her in respect of her separate estate and her husband is only a nominal party; not where the estate is. in the husband in right of the wife (Leavitt v. Conger, 1 Paige 421, citing 9 Vesey 486 and 2 Johns. Ch. 139; see, also, to the same effect, Eckerson v. Vollmer, 11 How. Pr. 42, citing 3 Chitty Gen. Pr. 263).
It was irregular not to have a guardian ad litem appointed, but that omission does not make the decree void. Where the infant defendant in an action for the foreclosure of a mortgage is served with process, but no guardian ad litem is appointed, and judgment is taken by default, the judgment is not void, but voidable. Upon the application of the infant made within a reasonable time, such a judgment would be opened; but where there is laches in making such application, the right to impeach the title of a Iona fide purchaser at a sale under such judgment is lost (McMurray v. McMurray, 66 N. Y. 175).
The plaintiff’s exceptions should be overruled and judgment ordered for the defendant upon the verdict.
There is but one important question
in this case, and that is, Are the allegations in the bill of complaint in the old foreclosure suit sufficient to apprise the then defendant (now the plaintiff), Elsie Feitner, that the mortgagee was seeking in the foreclosure suit to cut off her inchoate right of dower because she had joined her husband in executing the mortgage? If the bill of complaint did contain such allegations, then the decree in the foreclosure suit is a bar to the claim of dower now made by Mrs. Feitner. In Lewis v. Smith (9 N. Y. 502) and in Rathbone v. Hooney (58 N. Y. 463) it was held that a decree of foreclosure did not cut off rights not referred to in the complaint, though the persons entitled to those rights were parties to the action. On this ground only did the plaintiffs in those cases prevail; and the deduction is irresistible, that if they had been called upon to defend in the foreclosure suit the lights that they subsequently asserted in the cases that have been cited, it would have been decided that the decree in foreclosure was a perfect bar to the rights claimed (see also Malloney v. Horan, 49 N. Y. 111). Mrs. Feitner is not classed in the bill of foreclosure among those “ who have or claim to have some interest in the premises as sub
In the case under consideration, the bill of complaint alleges “ that George Feitner, together with Elsie, his wife, did duly execute under their hands and seals a certain indenture of mortgage, conveying the tenements, hereditaments, etc., etc., and also all the estate, right, title, interest, dower, property whatsoever of them, the said George and Elsie.” It further alleges that the mortgage was acknowledged in due form of law by said George and Elsie, and was recorded. It prays that all the defendants be foreclosed of and from all equity of redemption, and claim of, in, and to the mortgaged premises. These allegations were, in my judgment, sufficient to call upon the defendant Elsie to
I think the judgment of foreclosure is binding upon her, and for that reason I concur with Judge Daly in ordering judgment for the defendant.
Exceptions overruled, and judgment for defendant.