Moran v. Conoma — 59 N.Y. Super. Ct. 101

Majority

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DENNIS W. MORAN, Plaintiff v. GEORGE CONOMA, et al., Defendants. In the Matter of Mayer and Simon Loeb, Appellants.

Headnote

Action for mortgage foreclosure—Jurisdiction of court over case and defendants by service of summons by publication—When purchasers at sale must consummate the purchase.

This action was brought to foreclose a mortgage on land, executed, by one of the defendants (George Conoma). Conoma was a sailor, and soon after the execution of the mortgage he left New York, and since then has not been heard from.

The summons and complaint in the foreclosure action show that the plaintiff made George Conoma and all persons unknown, having or claiming an interest in the premises described in the complaint, such unknown persons or owners being herein described as the wife, widow, heirs at law, devisees, grantees, assignees or next of kin, if any, of said George Conoma, and their respective husbands and wives, if any, all of whom and whose names, except as stated, are unknown to the plaintiff. Other persons are named as defendants in like manner and statements as in the case of Conoma. By an order of the court, duly entered in the action, service of the summons was directed to be made by publication and was so made under subdivision 6 of section 135 of the Old Code. On the 30th

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of December, 1889, judgment of foreclosure and sale was ordered and entered, based upon the service of the summons by such publication. On the sale, Simon Loeb and Mayer Loeb were the highest bidders for the property and the same was struck off to them, and they subscribed the terms of sale and paid ten per centum of the purchase money, but refused to further comply with the terms of sale, and on the third day of July, 1890, the order of this court was entered directing them to fulfil the terms of sale, from which said Simon and Mayer Loeb appeal.

The appellants contend that the court could not enter judgment in the said . foreclosure action against the alleged unknown owners, without evidence that they were in fact unknown or absentees, or that defendant, George Oonoma, died without heirs at law or néxt of kin.

Held, that Wheeler v. Scully, 50 N. Y. 667 , is a direct authority against the appellants, and we are unable to distinguish the ruling of the Court . of Appeals in that case from the case before us, and the order appealed from is affirmed.

Before Sedgwick, Ch. J., Truax and Dugro, JJ.

Decided March 2, 1891.

Appeal frorii an order made at special term granting the plaintiff’s motion to compel Mayer Loeb and Simon Loeb, appellants, as purchasers of certain mortgaged premises described in the decree of foreclosure and sale herein, to comply with the referee’s terms of sale and complete their said purchase.

E. J. Myers, for appellants, argued :—

That the court could not render judgment against the alleged unknown owners without some evidence that they were in fact unknown or absentees, or that George Conoma died without heirs at law or next of kin. Code of Civil Procedure, § 451; Crandall v. Beach, 7 How. 271 ; Gardner v. Kraft, 52 Ib. 499. The right to issue a summons against a defendant or class of defendants who are unknown to the plaintiff, is dependent on a fact, to wit, the plaintiff’s ignorance, and this fact must be judicially established before the court obtains jurisdiction. The power to conclude a class of persons by a judgment entered and

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rendered upon a summons which in fact is never served upon them should be sparingly exercised, and the plaintiff required to conform to every requirement of law before the judgment is granted. The privilege of describing parties as unknown is not an arbitrary br obsolete right, but is dependent upon the plaintiff's establishing the u ignorance ” of «the “ name of a defendant” to entitle him to enter a decree or judgment binding the unknown defendant. Gardner v. Kraft, 52 How. 500 . The Code of Civil Procedure (§ 1216) provides that judgment can only be entered upon application to the court after service of the summons “ otherwise than personally.” “ The court must require proof of the cause of action set forth in the complaint to be made.” The rules of the court •require that, “ If any of the defendants are absentees, the order of reference shall also direct the person to whom it is referred to take proof of the facts and circumstances stated in the complaint.” Rule 60, General Rules of Practice. The rules of courts have the force and effect of statutes. Mayor, etc., v. Nichols, 18 Hun, 535 . The order of reference provides “ that it be referred to Frederick Smyth, Esq., to take proof of the •facts and circumstances stated in the amended complaint.”

There was a total failure to offer any proof before the referee of the parties claiming under George Conoma as alleged in the complaint, or who his heirs at law or next of kin viere, or whether or not there were any absentees or infants. The plaintiff was not personally examined before the learned referee, nor was any affidavit ever made by him of his ignorance of the true names of the heirs at law or next of kin of George Conoma, and no averment or allegation is contained in the entire record of such fact, except in the captions of the summons and other papers in the record. It is not a compliance with this provision of law, certainly a condition precedent, that the plaint

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iff must be ignorant of the name of the defendant, before a summons of this character can issue, for the plaintiff’s attorney to make oath that the attorney is ignorant, to sustain the summons in this case. The proof before the referee was directed to showing that the property in fact passed to Isabella Sauvan under the devise contained in the last will and testament of George Conoma, deceased. This view was adopted by the learned referee, and if he was mistaken then the court did not acquire jurisdiction over the “ unknown heirs (?) ” of George Conoma by reason of the failure to prove the facts necessary to sustain the summons adopted in this case.

The learned referee finds : “ That the will of George Conoma was admitted to probate by the surrogate of the county of New York on the 1st day of February, 1859, as a will of personal property only.” Yet, without any other testimony as to the execution of the will of George Conoma than the record and adjudication of the surrogate admitting the said will “as a will of personal property only,” the learned referee found: “ That prior to the month of March, 1855, the said defendant George Conoma duly made and executed in due form of law his last will and testament by which he devised to the defendant Isabella Sauvan, under her name of Isabella Russell, the real property described in said complaint, in fee.” The presumption is that George Conoma, the mortgagor, had heirs at law to whom the equity descended, and “ the presumption is so violent that the estate of an intestate is transmitted to others by descent, that it can only be repelled by proof that the fact is otherwise.” Lawson on Presumptions, 198, 199, Rule 42 ; Harvey v. Thornton, 14 Ill. 217 . It is this doubt that makes the title unmarketable upon the face of the record, because it appears, 1st, that sufficient proof has not been made that the plaintiff was ignorant of the true names of the heirs or next of kin of

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George Conoma, and the summons was therefore improperly issued, 2d, that the title to the property is in the heirs of George Conoma, and they are not concluded by the judgment.

James Kearney and S. F. Higgins, for respondents, argued:—

I. The appeal is before the court, without any specific, or any formal objection to ‘the title, to the mortgaged premises, which the referee’s deed would give the appellants, and the plaintiff, therefore, presents to the court, the law arising from the facts, found by the learned referee, and shown by the record. The jurisdiction of the court, over the subject matter of the action, is beyond question. The question for consideration is then, were all the necessary parties properly brought in, and did the court acquire jurisdiction over them? The defendant Conoma, the mortgagor, is brought before the court, as a party defendant, by the service of the amended summons, by publication in due form, for the reason that the proceedings for the probate of his will, resulted only in its admission to probate, as a will of personal property. The unknown persons, having or claiming an interest in the mortgaged premises, such unknown persons are all who could, by any possible disposition of the mortgaged premises, by operation of law or otherwise, acquire any interest therein, under or through the defendant Conoma, and were all in default. The defendant Isabella Sauvan, derives title as devisee, under the will of the defendant Conoma, and her whereabouts being unknown, she having disappeared and no tidings of her having been heard for more than twenty-five years, she and those claiming under her, as stated in the title of this action, were proceeded against by publication and were all in default. The defendant Elvira Josephine Sauvan, the lawful daughter of the defendant Isabella Sauvan,

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was proceeded against in this action, in the same manner as her mother, and made default. The same is true with respect to the defendant Henry H. Morange. The defendants O tersen and John J. Sauvan, absentee defendants, residing respectively, in New Jersey and Massachusetts, were also proceeded against by publication of the amended summons, and by properly mailing to their respective residences, copies of the amended summons, amended complaint, the order for the service of the amended summons by publication, together with the notice required by law, to the respective residences of these defendants. The defendant John J. Sauvan, the lawful husband of the defendant Isabella Sauvan, and father of ■ the defendant Elvira Josephine Sauvan, died after the commencement of this action, and after the service of the amended summons upon him, and after his time to appear, answer, or demur to the amended complaint had expired, without having appeared in the action or answered or demurred; thereupon Arthur V. Sauvan, his son, and Mary B. Sauvan, wife of Arthur V. Sauvan, were by order, properly made and entered, substituted as parties defendants in the place of said John J. Sauvan, and voluntarily appeared in the action and waived service of all papers, except notice of sale and of application for surplus moneys. The other parties defendants, either appeared in the action, or made default after personal service of the amended summons upon them.

II. The unknown persons, parties defendants, are fully and properly designated in the amended summons, in this action. The title of this action, with respect to the designation of the persons, whose names were unknown, as heirs at law, devisees, grantees, assignees * * # * and next of kin, if any, of George Conoma, etc., is a compliance with the provisions of section 451, of the Code of Civil Pro

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cedure. The words, if any, show that the persons summoned are unknown, and could in no event mislead any person. Bergen v. Wyckoff, 1 Civ. Pro. Rep. 1, affirmed 84 N. Y. 659 . The amended complaint contains averments, sufficient to support the designation in the title, of the action of the persons, parties defendants, whose names were unknown.

III. The question, whether the proceedings are right when the court has given judgment of foreclosure and sale, cannot be raised by a purchaser. The purchaser gets a good title on all questions, except that which goes to the jurisdiction. - Gaskin v. Anderson, 55 Barb. 259 . In De Forest v. Farley, 62 N. Y. 628 , the court held, “If the court had jurisdiction of the parties and of the subject matter and power to render the judgment, his (purchaser’s) title is not affected by defects in the proceedings which rendered the judgment irregular, and in consequence of which it might have been set aside or reversed.

IV. A purchaser will be compelled to complete his purchase where the record shows prima facie title against which there is no reasonable ground of suspicion. The purchaser must point out such ground: Williamson v. Field, 2 Sand. Ch. 533 ; In re Browning, 2 Paige, 64. When the court cannot discover, or rationally anticipate a defect in the title, it will order the purchaser to consummate • the purchase. Donnan v. Minard, 4 Paige, 441.

V. The judgment in this action and the sale under it cannot injuriously affect any one but the parties and they do not complain-; on the contrary they ask to have the sale perfected. No one except the parties has the right to complain; and the' parties by not interposing any objection, either by answer or by demurrer, have, in effect, consented that the court might entertain jurisdiction of the action, and so long as the judgment is unreversed, they are bound by it

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and the proceedings under it. As no one but the parties to the action can call in question the purchaser’s title, and as they are bound by the judgment, there is no reason why the sale should not be consummated. Blakeley v. Calder, 15 N. Y. 617 .

The action was brought to foreclose a mortgage made in February, 1853, by the above named George Conoma. Shortly after making the mortgage the said George Conoma, who was then a sailor, left New York and has never since been heard from. The plaintiff made said mortgagor, George Conoma, a party to the action, and he also made “ all persons unknown having, or claiming an interest in the premises described in the complaint, such unknown persons or owners being herein described as the wife, widow, heirs at law, devisees, grantees, assignees, or next of kin, if any, of said defendant, George Conoma, and their respective husbands, and wives, if any, all of whom and whose names except as stated are unknown to the plaintiff.” There were other persons made defendants with the same general description. It is unnecessary to set out in full the names of those so made defendants.

The appellants contend that the court could not render judgment against the alleged unknown owners without some evidence that they were in fact unknown or absentees, or that the said George Conoma died without heirs at law or next of kin, and refer to section 451 of the Code of Civil Procedure, and to certain eases as authority for that contention.

Section 451 says, that “ Avhere the plaintiff is ignorant of the name, or part of the name, of a defendant, he may designate that defendant in the summons * * * * by a fictitious name, or by as much of his name as is known, adding a description identifying the person intended. Where the plaintiff demands judgment against an unknown person, he

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may designate that person as unknown, adding a description tending to identify him. In either case the person intended is thereupon regarded as a defendant in the action, and as sufficiently described therein for all purposes, including service of the summons as prescribed in article second of the last title.” This section is composed of section 175 and part of section 135 of the old Code.

We are of the opinion that Wheeler v. Scully, 50 N. Y. 667 , is a direct authority against the appellants in this action. That was an action for the foreclosure of a mortgage executed by the defendant Scully, and as in this case, in that, the mortgagor, Scully, left the state in the year 1853, and has not been since heard from.

Service of the summons was made under subdivision 6 of section 135 of the old Code, which is as follows: “ In actions for the foreclosure of mortgages on real estate * * * if any party or parties having any interest in or lien upon such mortgaged premises are unknown to the plaintiff, and the residence of such party or parties cannot with reasonable diligence be ascertained by him, and such fact shall be made to appear by affidavit to the court * * * such court * * * may grant an order that the summons be served on such unknown party or parties by publishing the same * * * which publication shall be equivalent to a personal service on such unknown party or parties.”

In Wheeler v. Scully, supra, the printed book on appeal shows that the action was brought against “ Patrick Scully, if living, and his wife, if any, whose name is unknown to plaintiff, and the widow, devisees, heirs at law and next of kin of the said Patrick Scully, if deceased, who are unknown to the plaintiff.” Judgment was perfected in that action, and upon the sale the premises were bid off by one Cabre. He refused to take title and complete the purchase upon the ground

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that from the length of time which had elapsed it was to be presumed that the mortgagor was dead; that it was as much to be presumed that his heirs at law were infants as that they were adults, and if infants, the judgment did not bar them as the service of summons was not sufficient as against infants : whereupon a motion was made to compel him to complete the purchase. It was held by the Court of Appeals that if it be conceded that the presumption was that the mortgagor was dead—as to which the court expressed doubt—and if the unknown heirs were infants, they were bound by the service, as the subdivision of section 135 above referred to made no exception in case the unknown defendants were infants; and that if otherwise, there was no presumption that they were infants, and this was for the purchaser to show in order to justify his refusal.

We are unable to distinguish Wheeler v. Scully, supra, from the case before us.

The order appealed from is affirmed with costs to the plaintiff.

Sedgwick, Ch. J., and Dugro, J., concurred.

Cases cited

Wheeler v. Scully 50 N. Y. 667 N.Y. 1872-11-12 p. 102, p. 109
Bergen v. Wyckoff 84 N. Y. 659 N.Y. 1881-03-08 p. 107
Garkin v. Anderson 55 Barb. 259 N.Y. Sup. Ct. 1869-10-04 p. 107
De Forest v. Farley 62 N. Y. 628 N.Y. 1875-06-08 p. 107
Williamson v. Field's Executors 2 Sand. Ch. 533 N.Y. Ch. 1845-07-21 p. 107
Blakeley v. Calder 15 N. Y. 617 N.Y. p. 108