Rogers v. Patterson — 67 N.Y. St. Rep. 759

Majority

p. 759

Andrew J. Rogers, App’lt, v. William A. Patterson et al., Resp’ts.

(Supreme Court, General Term, First Department,

Filed May 17, 1895.)

Headnote

Parties — Necessary—Action against heirs.

The purchasers at a partition sale, who purchase with notice oí a pending action against the heirs to charge them with the debts of the deceased owner of the land, are necessary parties to such action.

Appeal from an order denying plaintiff’s motion to bring in as parties defendant the purchasers, at a sale in partition, of the property described in the complaint, and for leave to serve a supplemental complaint.

George M. Baker, for app’lt; Charles Fox, for resp’ts.

It is the duty of the court, where a complete determination of a controversy cannot be had without the presence of other parties, to direct them to be brought in. Code Civ. Proc. section 452 et seq. The only question before this court, therefore, is whether the parties whom the plaintiff seeks to have brought in as defendants in this action are necessary parties, within the intent of the statute ? The complaint alleges a good cause of action, and, for the purposes of this motion, it must be assumed to be true; and, considering its allegations in connection with the facts stated in the affidavit of the plaintiff’s attorney, it seems quite clear that the motion to bring in other parties as defendants should have been granted.

The suit is brought under the statute (section 1843 et seq., Code Civ. Proc.) against the heirs at law of John H. Mccunn, deceased, to collect a debt due from him to the plaintiff. At the time of the commencement of this suit more than three years have elapsed since the decedent’s death, and hence that species of statutory lien running with the land which creditors have was terminated. Thereafter the remedy of the plaintiff was against the heirs of McOunn to the extent of the value of the lands which came to them by descent from him ; and in a suit timely brought against such heirs at law the plaintiff may acquire a lien upon such of the lands as have not been aliened by the heirs at the time of its commencement. Code Civ. Proc. § 1852.

Now, it appears that, when this suit was brought, certain real estate which had descended to these defendants as heirs at law of John H. McOunn had not been sold, and hence, under the provisions of the section last referred to, the final judgment (if plaintiff shall be successful, and, for the purposes of this motion, we must assume that he may be) may direct that the debt of the plaintiff be collected out of such real property. But in the meantime this property has been sold, by virtue of a judgment in partition, to the several parties whom the plaintiff insists must be brought in as defendants. It appears, not only by the filing of the Us pendens, but by actual notice given at the time of sale, that the defendants were informed fully of the pending action and the plaintiff’s claim thereunder. If the plaintiff shall be entitled in this suit to a judg

p. 760

ment directing that his claim be collected out of the real property of McCann, it is also his right to have it determined in the same suit whether any or all of the purchasers are entitled to the protection of section 1853 of the Code of Civil Procedure, which provides that the title of a purchaser in good faith and .for value, acquired before the notice of the pendency of the action is filed, or. final judgment is entered and the judgment roll filed, is not affected by the judgment provided for by the three preceding sections. Otherwise, the plaintiff, after obtaining a judgment against the heirs of McCann, and directing the sale of the real estate which descended to them to satisfy it, might be confronted, in an attempt to enforce the lien, with the claim by some of the purchasers that they were purchasers in good faith, and entitled, therefore, to -the protection afforded by section 1853. Such unnecessary litigation the law abhors, and its -aim is to prevent a multiplicity of suits ; and, to accomplish that purpose, it is made the duty of the courts, m such cases as the one under consideration, to bring in the purchasers of the land upon which the lien is sought to be established, to the end that all possible question or questions relating to its enforceability, as well as to the right of acquisition, may be fully and finally determined.

The order should be reversed with $10 costs and printing disbursements, and the motion granted.