Brooks v. Ackerly — 16 N.Y. St. Rep. 656

Majority

p. 656

Alma L. Brooks, Appl’t, v. Emma Ackerly et al., Resp’ts.^[1]

(Court of Appeals,

Filed June 5, 1888.)

Headnote

Partition proceedings—Purchaser at sale—Title op—Effect op PILING LIS PENDENS.

Where in proceeding to partition real property the sale of the property is ordered by the court the title of the purchaser is to be deemed good not only as against the parties to the action and their representatives but against any person claiming from or under such party by title accruing after the filing of a proper notice of the pendency of the action.

This action was to foreclose a mortgage of $500, executed May 21, 1884, upon premises in Brooklyn, by Emma and Samuel S. Ackerly to Maria Moss, and by her assigned to the plaintiff. A sale of the premises, with other relief customary in such actions, was sought for. Davey was made defendant as one acquiring an interest in the mortgaged premises subsequent “to the lien of the mortgage.” He answered, setting up title acquired upon partition of premises (of which those mortgaged form a part), in an action commenced prior to July 26, 1883, to which the said Emma and Samuel S. Ackerly were parties, and against each of whom a Us pendens in said partition suit was on that day filed and indexed. He claimed that as to him the complaint in the foreclosure action should be dismissed. Upon trial the supreme court at special term so held, and its judg

p. 657

ment to that effect was affirmed by the general term, second department. The plaintiff appeals.

Mr. Johnson, for app’lt.; Mr. Stearns, for resp’ts.

The findings of the trial court sustain the defense. It was within the discretion of the court before whom the partition proceedings were pending to direct a sale or actual partition of the premises involved (Code, § 1546; Scott v. Guernsey, 48 N. Y., 106 ), and a sale having been ordered, the title of the purchaser is to be deemed good not only as against the parties to the action and their representatives, but against any person claiming from or under such party by title accruing after the filing of a proper notice of the pendency of the action. Code, section 1557, subd. 2; sections 1670, 1671. Such was the plaintiff’s position. The mortgagor was a party to the partition suit, and the mortgage under which the plaintiff’s claims were made, •subsequent to the effective filing and indexing of the Ms pendens in that suit and in regard to which the statute was complied with. It was the duty of the court below to give •effect to its provisions, and having done so, its judgment should be affirmed.

The judgment appealed from is therefore affirmed

All concur.