23 Barb. 88 | N.Y. Sup. Ct. | 1856
There is no doubt that the owner of the equity of redemption is a necessary party to a suit for the foreclosure of a mortgage. The mere statement of this proposition is sufficient to show its correctness, without the citation of any authorities in its support. The action is brought for the express purpose of foreclosing the equitable estate and right to redeem remaining against the mortgage, and of transferring to the mortgagee, or under our practice, to the purchaser at a sale by virtue of the decree, a complete legal title to the mortgaged premises. The very object of the proceeding would, therefore, be completely defeated if the owner of the equity of redemption were not a party. No title could be made that would not be defeasible by the person in whom this equity of redeeming the mortgage remained, not barred or destroyed. I do not understand that this proposition is disputed as a general rule by the counsel for the respondent, but it is sought to be met in its application to this case by the answer; first, that the mortgagor after he has parted with this equitable estate, cannot make the objection, that his grantee is not a party to the suit; and secondly, that the fact that the deed from the mortgagor to the present owner of the equity of redemption was not recorded at
The first answer is manifestly insufficient. The want of any necessary party—of any party without whom the matters in litigation cannot be finally determined or a perfect judgment be rendered—is an objection which is expressly given to any party, by the code ; by demurrer where the facts constituting the objection appear in the complaint, or by answer where they do not. And this objection comes with entire propriety from the mortgagor in a foreclosure suit, because his ultimate liability for the debt makes it of the highest importance to him that thó title which will be made by the sale should be perfect against all equities, and especially against that which is of the greatest consequence—the entire equity of redemption.
There is no question left as to this point but the main question, whether the owner of the equity of redemption by a deed unregistered at the commencement of the suit and at the filing of the notice of lis pendens is a necessary party. The fact of the conveyance by the defendant Euea Nelson, to one George W. Nelson, previous to the commencement of this action, was proved, on the trial, and that his deed had been subsequently recorded. No possession was shown to have been taken of the lands by the grantee in this deed, and thus the question turns upon the effect of the commencement of this foreclosure and the filing of the lis pendens upon the owner of the ‘equity of redemption by an unrecorded deed, and the effect of the recording of the deed upon the title of a purchaser at a sale by virtue of a judgment in this action.
The effect of filing a notice of the pendency of a suit of any description, affecting lands, is sufficiently plain from the code, 0 182.) It is declared to be constructive notice of the action from the time of its filing, to purchasers and incumbrancers. The same was its office under the former practice. (2 R. S. 174, § 48, [43].) The words purchasers and incumbrancers, in these statutes, evidently mean purchasers subsequent to the notice. The operation of the proceeding is wholly prospective; there is nothing in the act or elsewhere, declaring unrecorded
Nor does the registry act afford any better answer to this objection. Its whole object, as was stated by Chancellor Walworth in Stuyvesant v. Hall, (2 Barb. Ch. R. 158,) is to protect subsequent grantees and mortgagees against previous mortgages, deeds, &c. which are not recorded, and to deprive the holder of a prior unregistered conveyance of the right which his priority in time would have given him at the common law. The recording of a deed or mortgage is therefore constructive notice only to those who have subsequently acquired some right or interest in the property, under the mortgagor or grantor. And in this case of Stuyvesant v. Hall, the chancellor held that the recording of a subsequent mortgage of a part of the premises included in a prior mortgage, and the filing of a notice of the commencement of a suit to foreclose this junior incumbrance, were not constructive notice to the holder of the junior mortgage so as to establish any rights or equities against him. .It is not the intention of the recording acts, or the effect of recording any conveyances under their provisions, to create or destroy any rights with respect to prior recorded deeds or mortgages. An unregistered deed is not declared void as to a foreclosure of a mortgage commenced after its delivery, but only as to subsequent purchasers of the property in good faith. It is only be
It is perfectly clear that the objection raised by this answer and proved on the trial in the court below, was sufficient to prevent any further proceeding in the action, until this difficulty was obviated.
If there were no further question in the case, the judgment should be reversed and the proceedings remitted to the county court for a new trial, costs to abide the event. But another question is raised here and in other cases argued at this term, and that is the, constitutionality of the act conferring jurisdiction of suits for the foreclosure of mortgages on county courts.
If this were a new question I should have no difficulty in holding that the words “ special cases,” in section 16 of the article of the constitution relating to the judiciary, must mean cases which the legislature should specify. The extent of the selection and specification thus to be made might very properly be left to the legislature; and the county court according to such an exposition of the consitution might be moulded into such a form as the public exigencies should require. Undoubtedly the legislature, in the passage of the judiciary act and of the code of procedure, acted upon such a construction of the constitution— a construction which would vest a large discretion in them in giying jurisdiction to this tribunal. The community have acquiesced in this construction, and under these statutes litigations and judgments have taken place and titles have been acquired by the intervention of the county courts, and they were filling a large and increasing sphere of usefulness in our judicial sys
There were two methods of interpreting the words, “ special cases,” which is the limiting phrase used in the constitution in reference to the jurisdiction which may be conferred on the county courts, limiting their original civil jurisdiction and their “jurisdiction in equity cases.” One method is that which I have already indicated, and which would consider the word special as used with reference to the future action of the legislature, perhaps as rather directory than otherwise, making it necessary for the legislature to select and specify particular if not peculiar cases which this court might entertain, but allowing every action to be or become a special case within this jurisdiction which the legislature saw fit to legislate into that category. The other construction would refer the meaning of the word special altogether to the past action of the same legislative department of the government, and restrict it not to what the legislature might
We were pressed at the hearing with the argument that the term special cases was recognized and applied as the description of all causes or actions, as well as proceedings, which had been subjected to speciaf»regulations or enactments as to the mode of procedure. That is, that whenever the legislature had previous to 1846 taken a common law action, or any kind of suit in equity, belonging to the ordinary jurisdiction of the courts and had made special regulations as to the mode of proceeding or the manner of enforcing the remedy in any such case, this made any kind of action or proceeding which had thus been legislated upon, a special case. I do not know that there is any legislation
This mode of construing the constitution probably leaves us but little right to inquire or to conjecture what the meaning and intention of its framers was in this or any other part of it, except as it may be gathered from the most narrow and literal construction of terms. But we may be allowed to say what it seems quite obvious that the makers of that instrument did not intend to do. And it can hardly be doubted that they did not contemplate or design any such unreasonable distinction or absurd result as would follow from attaching the term special cases to all actions and proceedings in regard to which special provisions were then to be found in the statutes, and excluding all others. It is hardly to be supposed that the authors of the constitution intended to allow the legislature to confer upon these local and limited courts jurisdiction of ejectment and replevin, of proceedings to dissolve corporations and suits against them, of actions against legatees and next of kin, and against all public bodies and on all official bonds; in short of the most difficult and the most complicated actions known to the common law or to courts of equity, and which had for that reason been simplified as far as possible and specially regulated by statute, and
It is true that there are certain remedies and proceedings given and defined by these statutes, especially in the equitable jurisdiction of the courts, which would seem to come within a very narrow definition of the term special cases in the view which has been taken of it by the court of last resort, and yet which are among the most complicated and difficult, though by no means the most infrequent, proceedings in our courts. Such are the proceedings against heirs and devisees for the debts of the ancestor, which are in their present form a new and a peculiar remedy given by the statute exclusive of any other or former modes of procedure. Such also are perhaps the proceedings in partition, by suit or by petition. These are instances of new and peculiar remedies given by the statutes, not proceeding or resulting in accordance with the ordinary rules and practice of the courts of common law or equity jurisdiction. Whether these, and others resembling them, are cases of which the constitution intended that the county court should be allowed to acquire jurisdiction; whether indeed any action whatever brought in the ordinary manner of the courts, either as a legal or equitable remedy, can bo tried in the county court, are questions which must be decided as they arise: some of them will now be found to be questions of no little difficulty. It is enough for the present case to say that we can discover no. reason or principle upon which an action for the foreclosure of a mortgage —an action as frequent in its recurrence and as uniform and consistent with known rules in its procedure in a court of equity, as an action of assumpsit or of trespass, for an assault and battery in a court of law—can be regarded as a “ special case,” under any rule or construction of the meaning of that term which excludes the last mentioned form of action at law from its scope.
We are constrained therefore by the authority of the court of last resort—and following their construction, to decide that so much of the code of procedure as confers jurisdiction of suits for the foreclosure of mortgages upon county courts is unconstitu
Brown, P. J., concurred on the question of parties, with this opinion, but dissented on the question of jurisdiction.
When the holder of a mortgage of real estate institutes proceedings in equity to foreclose it, he is bound to include as defendants all who are known to him to have a title to, or lien upon, the equity of redemption. The knowledge may be either actual or presumptive. It is presumptive where it is simply inferred, either from the public records or from acts of possession by some one, in the character of owner. The right cannot be affected by an unrecorded conveyance of which the mortgagee has no actual notice. If the grantee neglects to put his conveyance on the public records until after a suit has been instituted and a notice of lis pendens has been filed, he must be considered as, and entitled only to the rights of, a subsequent purchaser. To hold that a purchaser by an unrecorded conveyance, of the equity of redemption, before the institution of a foreclosure suit, must be made a party in order to bind his interest by the decree, would subject such actions to serious obstructions and difficulties—such indeed as could not be avoided by the most active scrutiny, and would be contrary to the spirit of our statutes requiring that notices of lis pendens should be filed, that conveyances should be recorded, and that judgment should be docketed in the counties where the lands to be affected by them are situated.
If, however, the holder of an unrecorded conveyance ought to be made a party in order to conclude his rights, the omission to do so is no defense to one who continues the recorded owner,, as in this case, up to the time when his answer is filed. If he claims the benefit of having the purchaser from him made a party, he must first put himself right upon the records. I think, therefore, that the county judge was right in overruling the defense in this case, if indeed he had the requisite jurisdiction to act at all.
The legislature, in the judiciary act of May 12,1847, (article 4th, § 31,) in terms conferred upon the county courts jurisdiction in suits for the foreclosure of mortgages when the mortgaged premises are situated in their respective counties. The code (Title 4, § 30) provides that the county court has jurisdiction in what it denominates certain “ special easesamong which is the action for the foreclosure or satisfaction of a mortgage and the sale of mortgaged premises situated within the county, and the collection of any deficiency on the mortgage, remaining unpaid after the sale of the mortgaged premises. If actions in equity to foreclose mortgages of real estate in the counties where the courts are held and the defendants reside or can be found, are special cases, this purported delegation of power and jurisdiction is valid; otherwise it is not.
The mere denomination of these cases as special, in the code,
The county court had no jurisdiction in this case, and its judgment should therefore be reversed, and the complaint should be dismissed, but without costs.
Judgment reversed.
Brown, S. B. Strong and Emott, Justices.]