Landon v. Townshend

• Decision Date: 15 January 1889
• Citation: 112 N.Y. 93,19 N.E. 424
• Parties: LANDON et al. v. TOWNSHEND et al.
• Court: New York Court of Appeals Court of Appeals

112 N.Y. 93

19 N.E. 424

LANDON et al.

v.TOWNSHEND et al.¹

Court of Appeals of New York.

January 15, 1889.

Appeal from supreme court, general term, First department.

Ejectment by Charles G. Landon and Henry A. Hurlbut, as executors, etc., of Benjamin H. Hutton, deceased, against Mary N. Townshend, John Townshend, her husband, and Francis G. Wieck. Judgment for plaintiffs on the report of a referee was affirmed at general term, and defendants appeal.

John Townshend, for appellants.

Wm. D. Page, for respondents.

ANDREWS, J.

The appellants rest their appeal, as they rested their defense on the trial, upon the claim that the plaintiffs failed to establish title in themselves to the premises in controversy. The trial court found, and the judgment there and at the general term proceeded on the ground, that the plaintiffs had the legal title to the lots in question, and the correctnessof this conclusion is the question now to be determined. It is undisputed that on the 23d of March, 1836, John Scudder, the then owner of the lots in controversy, conveyed them to Ebenezer L. Williams, subject to a mortgage thereon for $1,000, executed by Scudder to Edward Price, September 5, 1835, and recorded on the same day. By a decree of the United States court for the Southern district of New York, made February 4, 1843, under and pursuant to the bankrupt act of 1841, Williams was adjudicated a bankrupt, and one William C. H. Waddell, who was the general and official assignee in bankruptcy in cases arising in that district, became virtute officii the assignee of Williams. Williams owned the lots from March 23, 1836, the date of his own conveyance from Scudder, to the time of his bankruptcy. The Scudder mortgage was outstanding and unpaid. Under the bankrupt act of 1841, Williams' title to the mortgaged premises vested by operation of law, without any assignment, in Waddell as assignee. Section 3. But the assignee took the title, as theretofore it had been held by Williams, subject to the mortgage.

The plaintiffs claim title under a foreclosure of the Scudder mortgage in an action brought by the administrator of Price, November 20, 1858. The title of the plaintiffs, as presented by the record, depends upon the efficacy of the foreclosure judgment, and the sale thereunder, to bar the equity of redemption of Waddell, the assignee in bankruptcy, and those whom he represented. In the title of the foreclosure action the parties were designated ‘William Coulter, Administrator of the Estate of Edward Price, Deceased, vs. Rhoda Williams and William H. C. Waddell.’ The complaint set out the death of Price, the mortgagee; the appointment of the plaintiff as his administrator; the execution of the bond and mortgage; the amount due and unpaid thereon; a description of the mortgaged premises; and contained the usual general averment that the defendants had or claimed some interest in the mortgaged premises subsequent to the mortgage, together with a special allegation that on or about December 1, 1838, Price, the mortgagee, instituted proceedings in the court of chanceryto foreclose the mortgage; but that the defendants, or either of them, were not made parties thereto, ‘although the defendant Waddell had theretofore, and since the execution and delivery of such mortgage, become seised of the interest of said Scudder in said premises,’ and ‘that the claim, right, or title in such premises of these defendants was obtained under and through the said John Scudder since the execution and delivery of said bond and mortgage.’ Both defendants appeared in the action by the same attorney, December 1, 1858, who afterwards, on the 22d of December, 1858, consented to a reference to compute the amount due, and this was followed by final judgment of foreclosure, December 31, 1858. There was no answer in the action, and no appearance therein by Waddell as assignee; the notice of appearance served by the attorney being in the general form, specifying that he appeared ‘for the defendants in the action.’ The premises were sold pursuant to the judgment, January 28, 1859, and were conveyed to the plaintiffs' testator (the assignee of the purchaser) on the same day.

Upon these facts the question arises whether the judgment of foreclosure of January 28, 1859, and the sale thereunder, barred the equity of redemption of Waddell, as assignee of Williams, and cut off the Williams title. There was no reference in the summons and complaint to Waddell's official character, nor any suggestion, so far as the record shows, at any stage of the proceedings, as to the nature of his title or interest in the premises. In form the action was against him as an individual. His appearance was in his individual, and not in his representative, character. The judgment followed the prior proceedings, and adjudged that ‘the defendants' be forever barred and foreclosed of all right, title, interest, or equity of redemption in the mortgaged premises; making no reference to his official character or title.

We are of opinion that the foreclosure was ineffectual to bar the equity of redemption of Waddell as assignee in bankruptcy. It is a fundamental doctrine of jurisprudence that all persons whose interests are to be affected by a judicial decree must be made parties, either individually or by representation, to the proceeding, or have, what in some cases is equivalent, notice, so that they may have an opportunity to be heard, and that as to such persons...