
    ELSIE R. FEITNER v. RICHARD J. LEWIS, et al.
    
      Infant.—When right of dower of infant wife not barred by foreclosure of a mortgage in which she joined.—Service of process on infant.
    
    Where a mortgage upon real estate was executed by plaintiff, then a minor, with her husband, in 1836, and where, in the subsequent proceedings, under the chancery practice which then existed in this state, to foreclose the mortgage, she (still under age), was made a party defendant, but did not in any manner appear in the suit and was not personally served with the summons,
    
      Held, that the judgment taken against plaintiff in the foreclosure suit was void, and she was in no way affected thereby as to her right to dower.
    Before Sedgwick, Ch. J., Freedman and O’Gorman, JJ.
    
      Decided May 7, 1888.
    Exceptions ordered to be heard in the first instance, at general term.
    The action was brought by plaintiff, as widow of George Feitner, deceased, for dower in a lot in 48th street, in this city, of which lot the defendants are seized and possessed.
    The material facts are these: The plaintiff was born in 1820, and was married to said George Feitner in 1835. In 1836, she joined him in executing a mortgage on the lot referred to, she being then an infant, over fourteen years of age. In 1838, while she was still under age, a suit in chancery was instituted for foreclosure of that mortgage, in which suit her said husband and she were parties defendant. A copy of the writ of subpoena in that suit was served on her husband, and a copy of the same was delivered to him with the request that he would hand it to her. He did not deliver it to her, and she was never served with a subpoena in the suit, and never in any manner appeared in the suit, and judgment of foreclosure and sale of said lot was entered against her husband and against her by default, and the same was enrolled on July 9,1838, she being still, and until 1841, an infant under twenty-one years of age. In pursuance of said judgment, the said mortgaged property was sold by a master in chancery, and the deed of the master in chancery to the purchaser was executed and recorded in December, 1838.
    The plaintiff contends: First. That the execution by the plaintiff, while under age, of the mortgage, was of no force and effect to bar her right of dower. Second. That she was not made a party to the suit for foreclosure, or brought within the jurisdiction of the court therein, or bound or in any way affected, as to her right to dower, by the judgment therein.
    
      H. Brewster, for plaintiff:
    I. The plaintiff, being a minor until 1841, she was incompetent to execute a valid deed or mortgage, and this mortgage if signed by her, as to her was absolutely void. The deed of an infant when he receives a direct benefit is voidable, but when it is not for the benefit of the infant it is absolutely void. Sherman v. Garfield, 1 Den. 330; Sanford v. McLean, 3 Paige 121; Chapin v. Shafer, 49 N. Y. 412 ; Comyns Digest, Enfant. (C. 2); Tyler on Infancy and Coverture, 48; Sanderson v. Marr, 1 Lev. 86; Darby v. Boucher, 1 Salk. 279; Conroe v. Birdsall, 1 Johns. Cas. 127; Baylis v. Dinsley, 3 Maule & Selw., 477; Luthers v. Fish, 4th Lans. 213; Story on Contracts, 4th ed., § 57.
    II. The plaintiff’s right of dower is not barred or affected by the foreclosure proceedings had in this case for the following reasons: (a) An infant defendant must be personally served with process. Walter v. DeGraaf, 19 Abb. N. C. 406; People v. Hoffman, 7 Wend. 489; 2 R. S. 447, §§10 and 11., 1st ed.; 1 Hoffman's Practice, 106 ; Ingersoll v. Mangam, 84 N. Y. 622 ; Grant v. Van Schoonhoven, 9 Paige 255. In this case there is no evidence that she ever saw the subpoena issued from the court of chancery or knew the contents, and if the service on the husband was good, his neglect to cause her appearance to be properly entered does not prejudice her under the provisions of the statute, which is as follows : “ No judgment or decree confessed by or recovered against him, and no laches, default, covin or crime of the ■ husband could prejudice the right of his wife to her dower or jointure or prejudice her from the recovery thereof if otherwise entitled thereto. 2 R. S. 6 ed., p. 1122, § 16 ; Alvord v. Beach, 5 Abb. 452. (5) A decree cannot be taken against an infant merely by default. Wilkinson v. Parish, 3 Paige 655. In other words an infant defendant must be brought into court and the only mode of appearance by an infant is by a guardian. Bloom v. Burdict, 1 Hill 139 ; Kohler v. Kohler, 2 Edw. Ch. 69 ; Knickerbacker v. Defreest, 2 Paige 306 ; Harvey v. Large, 51 Barb. 222; Fairweather v. Satterlee, 7 Rob. 546 ; Kellogg v. Klock, 2 Code Rep. 28; Lathers v. Fish, 4 Lans. 213; Mockey v. Grey, 2 Johns. 192; Bliss v. Rice, 9 Ib. 159; Ingersoll v. Mangam, 84 N. Y. 622; Boyley v. McAvoy, 29 How. 278; Park v. Park, 19 Abb. 161; Code Oiv. Proc., § 1218. (c) The court •did not acquire jurisdiction to take a decree pro confesso on a service upon her husband. The rules of the court of chancery only provide for taking a decree by default where the service is made personally. Chancery Rules ■22 and 23. It is said the husband is bound to enter an appearance for his wife. If this applies to an infant feme covert then it was the duty of the husband to see ■that her appearance was entered. In the previous citation from the Revised Statutes, no laches or default of the husband shall prejudice the right of his wife to her dower. (d) There was no issue in the foreclosure action ■raising the question of plaintiffs right of dower and although her capacity for being endowed accrued on the fact of marriage and seizin of .the husband the actual right of dower accrued to the plaintiff on the death of her husband. Her right of dower on the death of her husband was a prior and superior claim to that of the mortgagee under his mortgage and could not be tried in that action, hence there could be no estoppel by the decree in that action. Corning v. Smith, 2 Sel. 82; Rathbone v. Hooney, 58 N. Y. 463; Hallet v. Hallet, 2 Paige 18 ; Lewis v Smith, N. Y. 502; Frost v. Koon, 30 N. Y. 448; Emigrant Industrial Savings Bank v. Goldman, 75 N. Y. 131; Holcomb v. Holcomb, 2 Barb. 20. See Lawrence v. Smith, 2 Coms. 255; Lasher v. Lasher, 13 Barb. 106. (e) Estoppel is not favored in law because it shuts out the truth; estoppels also must be mutual and bind both parties. Dempsy v. Tyler, 3 Duer. 100; Masten v. Olcott, 101 N. Y. 160; Welland Canal Co. v. Hathaway, 8 Wend. 484; Brown v. McCune, 5 Sandf. 224. In that case it is said, estoppel does not apply to infants. See also Maloney v. Horan, 49 N. Y. 11. (f) There is no estoppel because inchoate right of dower gives no right or title to a wife in the lands of her husband. Witthaus v. Schack, 105 N. Y. 332; Sherman v. Garfield, 1 Den. 330. In this case as the plaintiff was an infant and the plaintiff’s signature wholly void the mortgage is to be treated as by the husband alone.
    III. A judgment is never binding where the court never acquired jurisdiction over the person. Ferguson v. Crawford, 70 N. Y. 253 ; William v. Van Valkenberg, 16 How. 146; Starbuck v. Murray, 5 Wend. 148.
    IV. The marriage of the plaintiff was before the statutes of 1848 and 1849 and hence the law then in force is the one applicable to this case, consequently she could not be in default as a feme covert, and as hereinbefore shown it was the business of the husband to take care of her interests; 1 Hoffman's Practice, 161; but as before shown his neglect cannot prejudice his widow as to her right of dower. Walsh v. Powers, 43 N. Y. 27. An infant can disaffirm his contract without restitution of the consideration money. Green v. Green, 69 N. Y. 553.
    V. If the plaintiff had put in a joint answer with the husband and confessing the allegations in the complaint in foreclosure, that would not estop her in this action for dower. A woman is not estopped after coxrerture by an admission on record by her husband and herself during coverture. 2 Phil. Ev. 9; Com. Dig. Estoppel, C.
    VI. The possession of the various grantees was not adverse to the plaintiff until the death of her husband; in cases of this description the limitation is from the death of the husband, which occurred on May 30, 1882. Code Civ. Proc., § 1596.
    
      Wm. H. Regan, attorney, and Thomas J. Rush, of counsel, for defendants:
    I. The decree of the court of chancery in the suit of Purdy, Jr., v. Feitner, et al., is final and conclusive. (1.) The court of chancery had jurisdiction of the subject and of the parties. Service of the subpoena, the process of the chancery court, in the manner proven was sufficient, (a) Prior to the Code personal service of a subpoena upon a married woman who was a party to a chancery suit was necessary only when the proceedings affected her separate estate in xvhich her husband was only a nominal party and not where the estate was in the husband, the wife having merely an inchoate right of dower. Thomas Mort., 265 ; Daniells’ Eq. Prac., 444; Barbour’s Ch. Prac., 50; Ferguson v. Smith, 2 Johns. Ch. 139; Leavitt v. Cruger, 1 Paige 421; Eckerson v. Vollmer, 11 How. Pr. 42. (2.) From the moment of the servióe of the process, the court of chancery had such control over the litigants, that all its subsequent proceedings, however erroneous, were not void. Freeman on Judgments, § 125; Hunter v. Lester, 18 How. Pr. 347. Myers v. Overton, 2 Abb. Pr. 344; Myers v. Wilson, 1 Hilt. 259. (a) The judgment of a domestic court of general jurisdiction is not void, except when the court has no jurisdiction over the subject matter of the suit, or when, having jurisdiction over the subject, it is shown by the record to have had no jurisdiction over the judgment defendant. Allen v. Huntington, 16 Am. Dec. 
      702 ; Whitaker v. Merrill, 28 Barb. 536. (3.) Judgment and decree in the foreclosure suit against Elsie Feitner; admitting for the purpose of the argument that she was an infant, without the formality of appointing a guardian, ad litem, may have been irregular but was not void. (a) The plaintiff was served in the chancery suit in which she was a necessary defendant and if voidable, the decree taken against her could only be set aside in an action or proceeding seasonably brought for that specific purpose and (as against parties who purchased under that decree) only for fraud or collusion. (6) “A distinction is to be made between a case where there is no service whatever and one which' is simply defective or irregular. In the first case the court acquires no jurisdiction and its judgment is void; in the other case, if thé court to which the process is returnable adjudges the service to be sufficient and renders judgment thereon, such judgment is not void, but only subject to be set .aside by the court which gave it upon seasonable and proper application or reversed on appeal.” Isaacs v. Price, 2 Dillon C. C. R. 351; McMurray v. McMurray, 66 N. Y. 175; Daniell’s Chan. Pr. 164. (4.) A motion on behalf of the plaintiff in the action to vacate the decree and sale in the chancery suit if made promptly might have been granted, but prompt action to repudiate the transaction was necessary. Howard v. Dusenbury, 44 How. Pr. 423. (5.) A judgment against a married woman is not void; and when erroneous because based upon a contract which she is not competent to •make, or from any other reason, is still binding upon her until set aside. Freeman on Judgments, § 150; Olmstead v. Hoyt, 4 Day (Conn.) 436; Green v. Branton, 1 Dev. Eq. 500. (a) It is not enough that a married woman prove facts sufficient to have avoided the judgment in the first instance. She must allege and establish that she was deprived of a full defense by the contrivance of her adversary. The inaction of her husband will not sustain the charge of contrivance. Green v. Branton, 1 Dev. Eq. 500.
    II. The court of chancery having jurisdiction of the subject matter and the party in the foreclosure suit of Purdy v. Feitner, et al., the decree of the court embodying its judgment in the case is final as to every matter therein determined. The bill of complaint alleged the execution of an instrument by which Elsie Feitner released her right of dower in the premises, and demanded judgment foreclosing the parties thereto. The decree was based on the finding that the mortgage was a valid instrument and declared that the allegations of the bill were true, giving effect to the instruments referred to and announcing them free from defects. (1.) If there was any valid defense to that suit, or any equitable ground on which the premises were entitled to exemption from the mortgage, it should then have been set forth in that action, or within a reasonable time after the entry of purchaser thereunder by a proceeding for that special purpose. Le Guen v. Governor, 1 Johns. Cas. 492; Jackson v. Hoffman, 9 Cow. 271; Lansing v. Goelet, 9 Ib. 362; Talbot v. Todd, 5 Dana 193; Peck v. Woodbridge, 3 Day 30. (a) The general rule is well settled that the estoppel of a former judgment extends to every material matter within the issues, which was expressly litigated and determined, and also to those matters which, although not expressly determined, are comprehended and involved in the thing expressly stated and decided, whether they were or were not actually litigated or considered. Pray v. Hegeman, 98 N. Y. 351; Dunham v. Bower, 77 Ib. 76; Embury v. Connor, 3 Coms. 522; Clements v. Clements, 37 N. Y. 74. (6) “A judgment rendered by a court having competent authority to deal with the subject matter involved in the action, and jurisdiction of the parties, although against the facts, or without facts to sustain it, is not void as rendered without jurisdiction and cannot be questioned collaterally.” Jordan v. Van Epps, 85 N. Y. 427; Reed v. Reed, 28 
      Week. Dig. 26 ; Cromwell v. Hull, 97 N. Y. 209; Bloomer v. Sturgis, 58 N. Y. 168.
    III. A judgment or decree upon default, is equally conclusive with one upon the merits. Blair v. Bartlett, 75 N. Y. 150; Newton v. Hook, 48 Ib. 676; Powers v. Witty, 4 Daly 552; 42 How. Pr. 352.
    IV. The rights of innocent third parties will not be affected by irregularities or errors in a proceeding which is regular on its face. Freeman on Judgments, § 510 et seq.; Holden v. Sackett, 12 Abb. Pr. 473; Newbold v. Schleus, 10 Fast. Rep. 698; McMurray v. McMurray, supra.
    
    Y. The provisions of the Revised Statutes, taken from the Revised Laws, protecting dower rights (3 Rev. Stat., 7 ed., § 16, p. 2198), are not applicable, (a.) There was the assent of the wife evidenced by her acknowledgment of the instruments, (b.) The judgment in foreclosure was against her, and remains binding and unreversed, foreclosing her right.
    VI. The case of Lewis v. Smith (19 N. Y. 502), and other analogous cases relied upon by the plaintiff’s counsel to defeat the effect of the decree in foreclosure are, decided upon the issues raised by pleadings where the rights' of a doweress were sought to be cut off by the general allegation in the bill to foreclose (wife not having joined in the mortgage), that she had some interest in the mortgaged premises, as subsequent purchaser “ or otherwise,” but not alluding to her as a doweress. In the action of Purdy v. Feitner, the bill of complaint alleged the due execution and delivery of mortgages executed by this plaintiff, and her husband, conveying her right of dower, and prayed the decree of this court making effective that instrument by perfecting the rights of the mortgagee thereunder. The decree of the court found that said mortgage was a valid instrument. The plaintiff should have set up any defense she may have had to the mortgage in that action of foreclosure, and having failed so to do, and suffered the decree to be entered against her, and having allowed the judgment to remain undisturbed for nearly fifty years, she is concluded by it, and cannot now attack it collaterally in this action. See comments of Judge Gray of U. S. Supreme Court, in Hoffman v. N. W. Mut. Life Ins. Co., 37 Alb. L. J. 141; Jordan v. Van Epps, 85 N. Y. 436. And cases cited above.
    VIII. The attention of the court is respectfully drawn to the distinction between the case at bar and the leading cases cited by the plaintiff’s counsel, viz.: Ingersoll v. Mangam, 84 N. Y. 622; Ferguson v. Crawford, 70 Ib. 253; Walsh v. Powers, 43 N. Y. 27.
   By the Court.—O’Gorman, J.

(after stating the facts as above)—The foreclosure suit was brought and concluded under the chancery practice which then existed in this state, but the principles, by which that practice was controlled, were not different from those which now prevail.

It was held in Priest v. Cummings, 16 Wend. 617 (1837), that a feme covert is not barred of her right of dower by joining with her husband in a conveyance of land, and acknowledging her' execution of the deed, if she be a minor within the age of twenty-one at the time of the acknowledgment. See also Tyler on Infancy and, Coverture, 555.

Whether her execution of that release of dower was void, or only voidable, and subject to ratification by her on arriving at full age, is a question which need not be discussed here. There is no evidence or presumption that she ever did ratify it. The plaintiff was never properly brought into court in the foreclosure suit, the court acquired no jurisdiction over her, and as to her, the judgment is of no force or effect. The only way in which an infant could have been brought within the jurisdiction of the court in that action was by service of the subpoena upon her inperson. Without that service, all proceedings against her in the suit were absolutely void.

As to the absence of some other steps in the action subsequent to her being served with process, if this service had been made, the defect might be only an irregularity, which could be cured. But the failure to make this personal service on her of the subpoena was fatal and incurable. She was never brought within the jurisdiction or power of the court, and all its proceedings against her were void. The judgment taken against her by default was void. Wilkinson v. Parish, 3 Paige 655.

Want of jurisdiction may be set up at any time. Ferguson v. Crawford, 70 N. Y. 253, 263.

In McMurray v. McMurray, 66 N. Y. 175, cited on behalf of the defendants, a decree of foreclosure against infants was held to be only voidable, notwithstanding the fact that no guardian, ad litem, had been appointed for certain infant defendants, which was required by law. But in that case, they had been served with process, and were thus brought into court, and were within its jurisdiction.

In the case at bar, the infant was never personally served with any process in the suit, and as far as appears, did not know of the existence of the suit until after her husband’s death, which occurred on May 30, 1882.

The defendant’s exceptions were not well taken, and there should be a judgment for the plaintiff with costs.

Sedgwick, Ch. J., and Freedman. J., concurred.  