
    Elizabeth Gruner, Respondent, v. Jennie H. Ruffner, Formerly Jennie H. Thomas, and Lucina H. Keese, Individually and as Sole Executrix, etc., of Harriet Thomas, Deceased, Defendants, Impleaded with Charles A. Pooley, Individually, Appellant, and as Sole Executor, etc., of John Thomas, Deceased.
    Fourth Department,
    November 24, 1909.
    Foreclosure — parties — heirs of deceased mortgagor—lis pendens — estoppel against claim that infants are not necessary parties — appointment of guardian ad litem for non-resident infant defendants — effect of failure to give notice or serve summons — when sale should be set aside — codefendant may vacate sale.
    Where a mortgagor dies intestate pending a suit of foreclosure her children become the owners of the equity of redemption, subject to their father’s curtesy, and they should be made parties defendant.
    A lis pendens filed on foreclosure is constructive notice to purchasers or incumbrancers, but is not effective as against infants who subsequently acquired title by inheritance. This is true although section 1632 of the Code of Civil Procedure provides that a conveyance upon foreclosure bars the title of parties to the action and those claiming under them “ by title accruing after the filing ” .of the Us pendens. The word “title” mentioned in section 1632 should be construed in connection with section 1671 which limits its effect to a purchaser or incumbrancer subsequent to the filing of the lis pendens.
    
    Where a mortgagee on the death of the mortgagor procures an invalid order substituting her infant heirs as parties defendant and obtains a judgment foreclosing their interest, he cannot resist a motion to set aside the sale on the ground that the infants were not necessary parties, for he has obtained a judgment cutting off their interest.
    An order substituting the infant children of a deceased mortgagor as defend- - ants in an action of foreclosure is invalid and a subsequent sale will be set aside where no notice of the order of substitution and no summons were served on the infants or on the persons with whom they resided in a foreign "State.
    Although section 473 of the Code of Civil Procedure empowers the court to designate a person to act as guardian ad litem, for a non-resident infant defendant under certain circumstances, such order can be granted only where the infant has already been made defendant, and is residing out of the State, or is temporarily absent therefrom.
    A person can only be made defendant to a suit of foreclosure by the service of a summons or by voluntary appearance. But an infant cannot voluntarily appear in a j udicial proceeding.
    
      Where infants have not been properly brought in as parties defendant in an action of foreclosure, a codefendant who appeared and objected to the sale for that reason and who has been charged with a deficiency on the sale may move to set it aside.
    Appeal by the defendant, Charles A. Pooley, individually, from an order-of the County Court of Erie county, entered in the office of the clerk of said county on the 3d day of June, 1908, denying the said defendant’s motion to set aside a sale in foreclosure.
    The action is in County Court for the foreclosure of a mortgage given by one Thomas and the defendant Pooley collateral to a bond executed by said mortgagors. Thomas died before the commencement of the action devising a part of the premises covered by the mortgage and owned by him to his widow, who subsequently married Ernest L. Euffner. She was made a party defendant, and, pending the action, died intestate, leaving' her surviving her husband and two infant children, each under the age of fourteen years.
    After her death and on the 28th of October, 1907, an order was granted on the application of the plaintiff substituting the defendants .Ernest L. Euffner and the two infant children, defendants instead of the said Jennie H. Euffner, deceased. At the time the order was granted the father of the children was a major in the United States army stopping in Columbus, Ohio, en route to the Philippine Islands, claiming his residence, however, in the city of Buffalo. The infant children at that time were residing with an uncle in Columbia, in the State of Connecticut. 3STo notice was given to said infants or to the person with whom they resided nor to the father of the application for such order of substitution, nor has any summons been served upon any of said ¡Dersons.
    About the time of the granting of said order making said infants parties defendant the County Court appointed William E. Daniels guardian ad litem of said infants in the action. The order was based upon the petition of said Daniels and the request of the father, duly acknowledged in the State of Ohio. ISTo notice of this application was given to said infants or to the uncle with whom they resided, nor was any notice of such appointment served upon any of said persons in any way.
    The guardian a/l litem appeared in the action and served the usual answer in behalf of said infants. Judgment of foreclosure and sale was finally obtained, and at the sale of the premises the defendant Pooley, against whom a deficiency judgment was asked, appeared and objected to the sale on the ground that the infants had not been properly made defendants in the action and that their rights would not be cut off by any conveyance delivered in pursuance of the judgment. His protest was disregarded and the premises sold for $1,000, only about one-lialf the amount due on the judgment. The defendant Pooley, alleging that he refrained from bidding at the sale because of the circumstances detailed, applied to the court for an order setting aside the sale and all the proceedings in the action subsequent to the death of Mrs. Ruffner, which application was denied, and he has appealed from that order.
    The opinion delivered by the County Court is reported in Gruner v. Ruffner (59 Misc. Rep. 266).
    
      Layton H. Vogel and Charles A. Pooley, in person, for the appellant.
    
      Edmund P. Cottle, for the respondent.
   Spring, J.:

The infant children, upon the death of their mother, became the owners of the equity of redemption of a part of the mortgaged premises, subject to the tenancy by the curtesy of their father. The estate of the mother terminated by her death, and their title came by operation of law, and they should be made parties to the action. (15 Ency. PI. & Pr. 651.)

The effect of filing the notice of pendency of action was “ constructive notice * * * to a purchaser or incumbrancer of the property affected thereby.” (Code Civ. Proc. § 1671.) It was not effective against the infants who acquired title by inheritance.

Section 1632 of the Code of Civil Procedure, in defining the effect of a conveyance upon a foreclosure sale, provides that such conveyance is a bar against each party to the action who was duly summoned and every person claiming under him “by title accruing after the filing of the notice of the pendency of the action.” The authority for filing the notice is section 1670 of the Code of Civil Procedure, and its effect is prescribed in the succeeding section, as noted above, and the title ” mentioned in section 1632 should be construed in connection with section 1671, which limits its effect to a purchaser or incumbrancer subsequent to the filing of the notice.

. In any event, the plaintiff deemed it wise to make them parties defendant and obtained a judgment in terms extinguishing their interest in the premises, and he should not now be heard to claim that they are not necessary parties. If he was satisfied that it was not essential to make them parties, their names should be formally stricken from the record. Otherwise, he has a judgment cutting off their interest and upon the assumption that they have been properly made defendants.

Section 471 of the Code of Civil Procedure permits the appointment of a guardian ad litem upon the application of the infant defendant, made “ within twenty days after personal service of the summons, or after service thereof is complete, as prescribed in section four hundred and forty-one of this act.” Where an infant defendant resides out of the State” the court may designate a person to act in his behalf unless he or some one in his behalf procures such a guardian to be appointed, and notice in the manner prescribed in the order must be given the infant before this alternative designation becomes effective. (§ 473.) The language of this section implies that the infant must be made a party defendant by regular process before the court may grant the order of designation. The order is granted only where there is an infant already made defendant and residing out of the State or temporarily absent therefrom. In the present case an order continuing' the action against these infants has been granted, but without notice to them or any one interested in their behalf. Service of summons is the method prescribed by the Code of Civil Procedure for making a party defendant in an action (§ 416) unless he voluntarily appears (§ 424), which, of course, does not apply to an infant who cannot act voluntarily ” in a judicial proceeding.

Jurisdiction of the infant by the service of summons by one of the methods prescribed in the Code of Civil Procedure is necessary before the court can properly appoint a guardian ad litem for him in the action. (Ingersoll v. Mangam, 84 N. Y. 622; Smith v. Reid, 134 id. 568, 571 et seq.; Van Williams v. Elias, 106 App. Div. 288, 294 et seq.; Crouter v. Crouter, 133 N. Y. 55; Darrow v. Calkins, 154 id. 503, 513; 1 Abb. Pr. [Alden, 2d ed.] 834.)

The case first .cited was for the foreclosure of a mortgage executed by the infant’s father who had died before the commencement of the action. The infant affected was under fourteen years of age and resided in the State of New Jersey. The summons was not served upon him either personally or in' compliance with an order therefor. It was personally served on the infant’s mother in this State. Upon her application the mother was appointed guardian ad litem of the infant and appeared and served the usual answer. The purchaser at the foreclosure sale objected to the title on the ground that the summons had not been served on the infant, and this contention was sustained by the Court of Appeals. The court say (at p. 625): “ An infant must appear by guardian ” * * ; but a guardian can only be regularly appointed for an infant defendant after service of the summons personally or by the substituted mode (in certain specified cases) as prescribed. * * * The order for the appointment of the guardian ad litem in this case authorized the guardian appointed to appear and defend the action in behalf of the infant; but the difficulty is that the order was unauthorized because the court had no jurisdiction over the infant or to appoint a guardian ad litem when the order was made, by reason of the fact that the infant had not been brought in and the action had not been commenced against him by the service of the summons which is the statutory mode by which the court acquires jurisdiction of the person or property of an infant. The appearance by the guardian was not, therefore, an appearance by the infant and was not within section 424.”

We are cited to two or three authorities which, it is claimed, hold that service of summons on a non-resident infant is not a prerequisite to the appointment of a guardian ad litem for such infant.

In Gotendorf v. Goldschmidt (83 N. Y. 110) the action was partition and several of the defendants were infants residing in Germany and no summons was served upon them. The purchaser refused to take the deed for this reason, and an action was commenced to compel him to accept, and the court held that his objection was untenable, and the agreement to purchase was enforced against him. The court, however, placed its decision upon the ground that in a partition action as the law then existed the Revised Statutes controlled and service of process upon the non-resident infants was not required in that bind of action. In that case the order appointing the guardian ad litem was in the alternative form, requiring notice of the appointment in the manner prescribed in the order to be made upon the non-resident infants and upon their father, with whom they resided, which direction was complied with and no application was made in their behalf, and eventually the order became operative. The infants did have notice of the appointment of the guardian ad litem and an opportunity to be heard. In the case we are considering no notice at all was served upon them, or the person with whom they resided. The distinction between the holding in this case and the rule applicable to a foreclosure action is adverted to and sustained in the Ingersoll-Mangam action.

This distinction is further illustrated in O'Donaghue v. Smith (184 N. Y. 365) where the validity of a judgment obtained in an action of partition in'1870 was attacked because of alleged defective service of the summons on an infant heir at law. The infant was under fourteen years of age and attending the Academy of Visitation in the State of Virginia. The summons was personally served on the infant in that State and upon Mother Borgie with whom the infant resided, as the affidavit of service stated. The mother of the infant, with whom she resided when not in school, upon her own petition was appointed the guardian ad litem of the infant and appeared and answered by attorney. By the Bevised Statutes an action of partition was commenced by petition and notice, and service on a non-resident party could be made by publication, or the petition and notice could be served personally without the State “forty days previous to its presentation without publishing the same.” While the manner of commencing the action by the Code of Procedure then in force was by summons and complaint instead of by petition and notice, the mode of service in partition remained as provided in the Bevised Statutes, and the court, therefore, held the service sufficient.

It will be observed that the whole subject is one governed by~ statute, but there has been at no time, so far as I have been able to ascertain, any authority for making an infant a party defendant or for appointing a guardian ad litem to appear for him until he has received notice in some form so that he may be heard upon the application. The variance in the mode of the notice or service permitted has been due to the variation in the statutes regulating it.

•As already mentioned, in the present case there was no service of the summons either personally or by publication upon the infants or upon the uncle in Connecticut with whom they resided, and no notice was given to any of them of the application for the appointment of the guardian ad litem, and for these omissions I think the sale should be set aside.

There was a deficiency on the mortgage sale of more than $1,000, for the payment of which the defendant Pooley was liable. He attended and objected to the sale because the infants were not properly brought in as defendants and declined to bid. His interest is sufficient to authorize him to apply to set aside the sale.

The order should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.

All concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.  