174 A.D. 308 | N.Y. App. Div. | 1916
The question is whether plaintiff has a marketable title of land which he has agreed to sell to defendant. He has such title provided certain creditors, whose judgment was a lien on the land, were properly before the court in an action to foreclose a prior mortgage. The creditors were two copartners and as such recovered the judgment, and as such were both made parties to the foreclosure action, but the summons was served on only one of them. The usual judgment in foreclosure was entered, and the land sold under it. Did the court have jurisdiction of the partner not served ? Section 1932 of the Code of Civil Procedure authorizes a judgment for a sum of money against all defendants jointly indebted therefor, although the summons was served on one or more, but not all of them. In such case the execution may be collected out of the personal property owned by the defendant not served jointly with those who were summoned, or any of them, and out of the real and personal property of the latter, or any of them. (Code Civ. Proc. § 1935.) In the foreclosure action the plaintiff does not
Stapleton, Mills, Rich and Putnam, JJ., concurred.
Judgment for the defendant, without costs, in accordance with the terms of the submission.