Feitner v. Lewis — 28 N.Y. St. Rep. 255

Majority

p. 255

Elsie R. Feitner, Resp’t, v. Richard J. Lewis et al., App’lts.^[1]

(Court of Appeals,

Filed January 14, 1890.)

Headnote

Foreclosure—Infant wife of mortgagor—Service on husband alone

SUFFICIENT TO BIND, IN CHANCERY.

Plaintiff joined with her husband in executing a mortgage, which was

p. 256

foreclosed in 1838. Service was made on the husband and a copy of the subpoena left with him for the plaintiif. At that time she was an infant. Held, that when service was made on the husband in accordance with the rule then in force, the court acquired jurisdiction to proceed against both and she was hound by the decree.

Appeal from judgment of the general term of the superior •court of the city of New York, denying motipn for new trial on • exceptions ordered heard there in the first instance.

The plaintiff, in 1836, joined with her husband in executing a mortgage upon his land. In 1838 a suit for the foreclosure of the mortgage was instituted, in which the husband and wife were made parties defendant. A copy of the writ of subpoena was served upon him, and a copy was delivered to him with the request that he would hand it to her. Judgment of fore-closure and sale was entered by default, and the property was ■sold thereunder. The husband died in 1882. This action was then brought by plaintiff in 1887," forty-nine years after the foreclosure, to recover her dower out of the premises described in the complaint, and which, through mesne conveyances, since the ■-acquisition of title under the foreclosure, have become the property of the defendants.

It was proved that at the time of her marriage the plaintiff ' was an infant, and that her infancy continued to a date subsequent to the sale in foreclosure. The trial judge declined to -dismiss the complaint and submitted to the jury the question of the plaintiff’s age, and a verdict was rendered for the plaintiff that she was under age when the foreclosure suit was brought. 'The trial judge ordered the exceptions to be"heard in the first instance at general term, where defendants’ motion for a new trial was denied and a verdict for the plaintiff ordered to be entered.

It was held there that the failure to serve the wife personally was fatal to the proceedings, and the judgment against her was void. ‘The defendants appealed to this court.

Thos. J. Bush, for app’lts; Isaac N. Miller, for resp’t.

I think the appellants should prevail. The court "below fell into the error of supposing that under the rules and practice in chancery proceedings a personal service of the writ of Lsubposna upon the wife was necessary, although the action did not •relate to her separate property. The only interest which the plaintiff had was an inchoate right of dower in the mortgaged land. That arose simply from her status as wife, and gave her no separate estate.

Chancellor Kent stated the rule in Ferguson v. Smith, 2 Johns. Ch., 139 , to be “that the service of a subpoena against husband .and wife on the husband alone is a good service on both; and the reason is that the husband and wife are one person in law, .■and the husband is bound to answer for both.” “But where the plaintiff is seeking relief out of the separate estate of the wife, it lias been deemed necessary in a late case, 9 Yesey, 488, that the -wife should be served.” See, also, Leavitt v. Cruger, 1 Paige, 422.

This is the exception to the rule, which required personal serwice upon an infant defendant.

p. 257

The merger of the legal identity of the wife in that of the husband is not affected by the question of her age. The legal unity is not dependent upon the fact of the wife’s majority. Therefore, when service was made upon the husband, in accordance with the rule then in force, the court acquired jurisdiction to proceed against both. The theory of the chancery practice was to secure jurisdiction over the person of the infant defendant, and it was effected, in all cases except in that of an infant wife, by a personal service of the writ. Thereupon, the infant was bound to appear, and to have a guardian appointed. In case of his neglect to do so, and of no application in his behalf, the court would proceed to make the appointment of itself, or when set on motion by complainant. Hind’s Ch. Pr., Title Appearance; 1 Barbour’s Ch. Pr., 127. But in case of an infant wife, and where her separate property was not the subject of the proceeding, no guardian was necessary, for the husband was bound to appear for both through his solicitor, and to put in a joint answer. If she refused to join in the answer, the husband could show the fact of her refusal, and would be permitted to answer separately. Upon this subject I may refer to the cases of Foxwist v. Tremaine, 2 Saunders, at p. 213 ; Chambers v. Bull, 1 Anstr., 269; Ferguson v. Smith, supra, and Leavitt v. Cruger, supra, and to the works on Chancery Practice. In Foote v. Lathrop, 53 Barb., 183 , a wife sought to avoid a judgment of foreclosure and sale, taken against her in 1857, on the ground that she was then confined as insane, and was not personally served with process. Marvin, J., speaking for the general term, in the case, in sustaining the order denying her motion, relied solely on the cases of Ferguson v. Smith, Leavitt v. Cruger, and Eckerson v. Vollmer, 11 How., 42 .

This action was destitute of merits, and lacked support in legal principles, and the complaint should have been dismissed.

The order of the general term, denying defendants’ motion for a new trial, should be reversed, the defendants’ exceptions sustained, and a new trial ordered, with costs to abide the event.

All concur.