57 N.Y.S. 592 | N.Y. Sup. Ct. | 1899
This case was presented upon a stipulation and proofs which established the following facts: On the 2d day of May, 1895, one Edward L. Lawrence was seized in fee of the premises described in the complaint. On that day he executed and delivered to Simon Pretzfield, Emma Pretzfield and Isaac N. Heidelberg, as.executors of, and trustees under, the last will and testament of William Pretzfield, deceased, a mortgage upon said premises to secure payment of the sum of $43,000, on the 2d day of May, 1900, with interest at the rate of 5 per cent., payable half-yearly, on May 2d and November 2d.
On the same day Lawrence conveyed said premises to Mary J. Stockton for the expressed consideration of $65,000, subject to said mortgage of $43,000. On the 21st day of November, 1895, said Mary J. Stockton executed to one Theodore J. Miller, a mort
On the 28th day of May, 1896, the said executors and trustees under the last will and testament of William Pretzfield, deceased, commenced an action in the Supreme Court to foreclose said $43,000 mortgage for nonpayment of interest. On the 5th day of June, 1896, said Mary J. Stockton was personally served with the summons and complaint in said action. She did not appear in the action, nor answer the complaint, but did appear in surplus! proceedings instituted after the sale of said premises under the judgment in said action. On the 27th day of June, 1896, the usual affidavit of • nonappearance and failure to answer on the part of defendants was filed by plaintiff’s attorneys in said action. This affidavit contained a statement, that by inadvertence, the defendant Stockton had been described and designated in the summons, complaint and lis pendens, “ as Emma J. Stockton, whereas her name is, in fact, Mary J. Stockton.” Upon this affidavit an ex parte order was made referring it to a referee to compute the amount due to the plaintiff upon said mortgage, and directing “that.the summons and complaint and all other papers herein be amended by striking out the names, 1 Emma J. Stockton ’ as one of the defendants in this action and inserting in lieu thereof the name Mary J. Stockton.”
No amended lis pendens was filed in said action, nor was any amended or supplemental summons issued.
Upon the report of Arthur Berry, the referee appointed in said action, judgment of foreclosure and -sale of said premises was obtained and entered ex parte on the 29th day of June, 1896.
Said premises were sold under said judgment on July 30, 1896, to one William H. Siegman, for $2,250, subject to the plaintiff’s mortgage for $43,000, and interest thereon from May 2, 1896. On August 6, 1896, the said referee reported that there was a surplus of $928.75 which he had deposited with the chamberlain of the city of New York, and that he had conveyed said premises to said Siegman by deed dated July 30’, 1896.
On August 11th surplus proceedings were instituted under the judgment in said foreclosure action, and said Mary J. Stockton was duly served with an order, issued out of this court, requiring her to
Before the recording of said referee’s deed to Siegman, “ no conveyance from, or undischarged or unsatisfied lien, claim or incumbrance against, the said Mary J. Stockton or against the said premises, appears of record or was filed or recorded,” except those referred to. On the 6th day of January, 1897, said Siegman conveyed said premises to Ralph Weil, the defendant herein, subject to the said mortgage of $43,000, which still remains a lien upon said premises.
On the 29th day of January, 1898, the plaintiff and the defendant entered into the contract described in the complaint. It is conceded that the plaintiff paid to the defendant the sum of $2,500 at the time, of signing the contract; and that the sum of $330.80, paid by the plaintiff for the examination of the title to said premises, is a proper and reasonable charge for that service. Ho question is raised as to the sufficiency of the tender on either side.
On the opening of plaintiff’s counsel at tire trial, defendant’s counsel moved for a dismissal of the complaint, “ on the ground that the plaintiff has an adequate remedy at law, that defense being taken specifically in the answer.”
An examination of the answer discloses that no such objection appears therein, and the defendant must, therefore, be deemed to have waived his right to avail himself of this defense. Lough v. Outerbridge, 143 N. Y. 277; Rochester & Kettle Falls Land Co. v. Roe, 8 App. Div. 366. Although it would be otherwise had .this objection been taken by answer.
The complaint alleges that the defendant’s title is hopelessly bad. If this be true the defendant can no more give the plaintiff a good title now than he could at the time the contract was made. In that event plaintiff’s remedy would be a simple action at law for damages. If the defendant’s title is not defective, then there is no
The first objection raised by the plaintiff to the defendant’s title is, that the court never acquired jurisdiction of the person of Mary J. Stockton, who was the owner of the equity of redemption, and that the judgment of foreclosure and sale in Pretzfield v. .Lawrence was, therefore, void. In support of the contention plaintiff’s counsel cites Farnham v. Hildreth, 32 Barb. 277; Schoellkopf v. Ohmeis, 11 Misc. Rep. 253, and McGill v. Weil, 10 N. Y. Supp. 246. In the first of these cases which was in the Supreme Court, the defendant, whose name was Truman Hildreth, was sued by the name of Freeman Hüdreth. The defendant did not appear in the action, and judgment was taken against him by default. Execution was issued and certain lands belonging to the defendant were sold thereunder. The sheriff’s certificate and deed recited a judgment against Truman Hildreth. After giving of the deed, and the granting of an order for a new trial, the plaintiff in the judgment obtained an ex parte order, amending “ nunc pro tunc,” the judgment-roll, the docket of the judgment and the execution issued thereon, by inserting the word “ Truman ” wherever the word “ Freeman ” occurred. It was held that this amendment did not have the effect to render the sale valid or to divest the defendant of the title of the property levied on. In Schoellkopf v. Ohmeis, 11 Misc. Rep. 253, in New York Common Pleas, Joseph M. Ohmeis was sued as Jacob Ohmeis. Upon the defendant’s failure to appear or answer, an assessment of damages was had. A motion after judgment to amend the process and proceedings “ nunc pro tunc,” by substituting the name Joseph M. Ohmeis for Jacob Ohmeis was denied, on the ground that the court has never gained jurisdiction of the person of the defendant. In speaking of the comprehensive power of amendment given to the courts by section 723, Code of Civil Procedure, the court per Pryor, J.,
McGill v. Weil, supra, was a case in Justice’s Court, in which Gustaros Weil was sued by the name of Augustus Weil. The defendant did not appear, and judgment went against him by default. An order in supplementary proceedings was thereupon issued directing said defendant to appear before a referee for examination. Upon the defendant’s refusal to be sworn and be examined in said proceedings, a motion was made to punish him for contempt of court. This motion was denied upon the ground that the justice had never acquired jurisdiction of the defendant.
To the same effect are Moulton v. de ma Carty, 6 Robt. 477; Abeel v. Conhyser, 42 How. Pr. 253; Gardner v. Kraft, 52 id. 499; Miller v. Foley, 28 Barb. 631; Muldoon v. Pierz, 1 Abb. N. C. 309; Wiehle v. Schwarz, 22 J. & S. 171. The defendant relies upon the recitals of the judgment to sustain its validity, and cites many cases in support of this contention. Ho case has been brought to our attention, however, in which the prima facie evidence of the recitals of jurisdictional facts have been presented to override positive testimony showing want of jurisdiction. It is the well-settled rule of this state that the recitals in judgments of courts of general jurisdiction are prima facie evidence of the facts’ recited. When such judgments are attacked collaterally, such recitals are, in and of themselves, sufficient to show that the court acquired jurisdiction. The following cases furnish familiar illustrations of this rule: Smith v. Central Trust Co., 154 N. Y. 340; Steinhardt v. Baker, 20 Misc. Rep. 474; Murphy v. Shea, 143 N. Y. 78; Lowerre v. Owens, 14 App. Div. 216; Potter v. Merchants’ Bank, 28 N. Y. 641; Ferguson v. Crawford, 86 id. 609; Steinman v. Strauss, 44 N. Y. St. Repr. 380; Berkowitz v. Brown, 3 Misc. Rep. 1; O’Connor v. Felix, 87 Hun, 179.
But it seems to us that this rule has no application in a case where the record clearly disclosed, that the recitals, upon which the judgment is based, are not true, and it affirmatively appears that the court never acquired jurisdiction of the person of the defendant. It is a fundamental and necessary rule of universal application that no court can render judgment in any case, where it has not acquired jurisdiction of both the subject-matter of the action and the person of the defendant. The power of amendment given to the courts by section 723, Code of Civil Procedure, can only be exercised when such jurisdiction exists. The stipulation
The second objection which the plaintiff raises to defendant’s title is that no notice of pendency was ever filed against Mary J. Stockton. The stipulation on this point is not so explicit as it is upon the question of service of process, but the only fair inference to be drawn from the stipulation is, that the notice of pendency was filed against Emma J. Stockton. The thirteenth stipulation is “ That before the recording of the deed of Arthur Berry, referee, to William H. Siegman, on August 30, 1896, as specified in paragraph 10 of this stipulation, no conveyance from, or undischarged or unsatisfied lien, claim or incumbrance against thie said Mary J. Stockton or against the said premises, appears of record, or was recorded except as heretofore appears in this stipulation.” A lis pendens only relates to and affects voluntary alienations of prop
The third objection to defendant’s title is that the judgment entered in Pretzfield v. Lawrence was not in accordance with the provisions of the Code of Civil Procedure regulating the practice in foreclosure cases when the whole amount is not due. The prayer for relief in the complaint in that action, among other things, asks, “ That the said premises may be decreed to be sold according to law, subject, however, to said mortgage of $43,000'.” This was the mortgage being foreclosed for an installment of interest amounting to $1,075. The judgment followed the prayer for relief in this language: “ And it is further ordered that the said referee sell said premises subject to the plaintiffs’ mortgage of $43,000, with interest from May 2d, 1896, at the rate of — per cent, per annum.” This was extraordinary practice. It directly contravened the provisions of sections 1636 and 1637 of the Code of Civil Procedure, the former of which provides, in substance, that when the whole of the mortgage debt is not due, and the property is so circumstanced that it can be sold without injury to the interests of the parties, no more of the property shall be sold in the first instance than will be sufficient to satisfy the amount due with
The imaginary future difficulties referred to in the learned discussion of this question by plaintiff’s counsel, seem to have been happily averted by the agreement of plaintiff to take said premises subject to said mortgage of $43,000. The completion of the contract in accordance with this provision thereof, will set at rest any doubt as to the legal status of this mortgage.
We are, therefore, of the opinion that there are no objections to defendant’s title, "which affect its marketability, and that plaintiff’s complaint should be dismissed upon the merits "with costs. Let findings and decree be submitted in accordance herewith.
Complaint dismissed, with costs.