
    GREEN v. MILBANK.
    
      N. Y. Supreme Court, First Department; Special Term,
    August, 1877.
    Order to mark Judgment “ Secured on Appeal,” when invalid. —Sureties on Undertaking on Appeal, when discharged.— Subrogation.—Parties in Equity.
    Where an order to mark a judgment “secured on appeal,” was obtained on the application of a law firm, of which one of the sureties on the undertaking on appeal was a member, upon notice .to the plaintiff in the judgment, but without notice to the other surety on the undertaking,—
    Held, that the order was valid as to the plaintiff in the judgment, and. the surety, whose law firm made the motion, but was invalid as to the surety who had not been notified of the application.
    The several members of a law" firm constitute but one person in the law. The act of one in the course of the partnership business is the act of all.
    Upon the payment of the judgment by one of the sureties on appeal, he is entitled to be subrogated to the rights of the creditor existing at the time he signed the undertaking, and may enforce the judgment against all property on which it was then a lien, unless the lien had been lost through some act or omission of the creditor.
    The rule is, however, that the surety can enforce the judgment against lands of the judgment debtor, conveyed away by him, in .the inverse order of alienation only.
    When a person advances money to take up a mortgage, and the same is paid upon the understanding and belief on his part, that the mortgage is the only lien upon the land, the party so paying is entitled to be subrogated to the rights of the mortgagee, as against a judgment recorded subsequent to the mortgage, marked “secured on appeal,” although the same was so marked without notice to a surety on appeal, who afterwards paid the judgment.
    It is a rule in equity, that all persons should be made parties defendant, and such persons may be brought in on the trial, whose presence is necessary to a complete judgment, with respect to all interests involved, under the issues raised by the pleadings.
    The objection to an action in equity, that the plaintiffs remedy is at law, should be taken at the first opportunity.
    
    Trial by the court. .
    John Green brought this action against Robert W. Milbank, Henry D. Brookman, Charles Lanier, and Sarah E. Lanier, his wife, The Mutual Life Insurance Company of New York, and William Fullerton, to have two certain judgments declared liens on real estate prior to a certain mortgage and conveyance.
    The facts out of which the action arose are substantially as follows:
    On July 2, 1869, Robert W. Milbank and wife executed a mortgage for $10,000, to Timothy C. Churchill, on certain real estate in the city of New York, on Thirty-fifth street, between Lexington and Third avenues. This mortgage was duly recorded.
    Thereafter, on November 27,1869, Henry D. Brook-man and others recovered a judgment in the supreme court, Kings county, against said Robert W. Milbank, and others, for $4,619.63,- and the same was entered on the same day, with the clerk of Kings county, and a transcript thereof docketed in the city and county of New York.
    On appeal to the general term, this judgment was affirmed, and a further judgment for $95.40 for costs of appeal rendered on December 29,1870. This judgment was also entered in Kings county, and a transcript thereof docketed in New York county, on December 31, 1870.
    The defendant, Milbank, then appealed to the court of appeals. In order to secure a stay of proceedings pending the appeal, the plaintiff, John Green, and the defendant, William Fullerton, executed, January 7, 1871, an undertaking on appeal, and all proceedings on the two judgments became stayed. At the time these judgments were obtained, Milbank owned two pieces of real estate in the city of New York, on which these judgments became liens. One of these was on Thirty-fifth street, between Lexington and Third avenues, and the other at the northwest corner of Thirty-sixth street and Park avenue.
    Milbank, having contracted to sell the piece of real estate first above mentioned to Charles Lanier, obtained a loan of $6,000 from the Mutual Life Insurance Company. The attorneys of Lanier and the insurance company refused to pass the title to the property unless the lien of the aforesaid judgments was removed.
    Thereupon, on motion of Fullerton, Knox, and Rudd (of which firm the surety Fullerton was a member), attorneys for Milbank, with notice to the judgment creditor, Brookman, who appeared by counsel and opposed the motion, bpt without notice to the plaintiff, Green, one of the sureties on the appeal bond, the dockets of the judgments were marked secured on appeal in Brooklyn, and transcripts showing that fact were filed in New York county, and the dockets there so marked, on January 28,1871. The defendants, the Mutual Life Insurance Company, and Lanier, then took their titles, relying'upon the facts stated in an affidavit of Milbank and upon the dockets, and upon the fact that the proceedings to mark the dockets had been taken in the office of the surety, Fullerton, and without any knowledge that the surety Green had not received notice of the proceedings to have the Brookman judgments marked as aforesaid.
    The consideration for the conveyance to the defendant, Lanier, was the sum of $16,000, which he paid as follows: $1,000 on December 28,1870, to the said Mil-bank ; $6,000 by assuming the payment of the mortgage to the Mutual Life Insurance Company; $4,000 by making to the order of the said Milbank his note for that amount, dated January 31, 1871, payable one year from date, with interest; $3,000 by executing a mortgage for that amount to Milbank; and $2,000 in cash on January 31, 1871, on the delivery of the deed. On that day the aforesaid note for $4,000 was indorsed by Milbank and delivered to Timothy G. Churchill, and was received by him, together with the $6,000 which had been borrowed from the Mutual Life Insurance Company for that purpose, in full payment of the aforesaid mortgage for $10,000; thereupon said Churchill delivered to the said Mutual Life Insurance Company a satisfaction-piece of said mortgage, together with the original bond and mortgage for $10,000, the latter of which the said company had in its possession at the time of this suit. It was the intention of the parties to the said conveyance that the premises should be conveyed free and clear from all incumbrances, except the $6,000 mortgage to the Mutual Life Insurance Company.
    On ¡November 23, 1872, said Milbank sold the aforesaid property at the corner of Thirty-sixth street and Park avenue, to Cornelius K. Garrison, but he was not a party to this action.
    It also appeared by the proof that Milbank at the time of the suit owned other property in Duchess county, on which these judgments were a lien.
    The judgment appealed from was affirmed by the court of appeals, with costs against Milbank, in December, 1872, and thereafter the defendant Fullerton paid the judgments and took assignments absolute in form to himself. The plaintiff, Green, in October, 1873, repaid Fullerton his one half, and received assignments of one half interest in the judgments. Fullerton refused to be made a co-plaintiff with Green, and therefore was made a defendant.
    The plaintiff herein asked that, as between him and the defendants, the Brookman judgments be adjudged to have never ceased to be liens on the premises in question, so far as his rights were involved, and that he have leave to issue execution therefor, the same as if the dockets had not been marked “secured on appeal.”
    The defendants, Lanier and the Mutual Life Insurance Company, claimed that they should be subrogated to the rights and lien of the Churchill mortgage, and be regarded as equitable assignees thereof ; that they possessed equities in the premises superior to those of the plaintiff to that extent, and also to the extent of payments for interest and Croton water rents. They asked that the complaint be dismissed with costs, or that, if the issuing of the execution was permitted,. and the said judgments were decreed to be liens on the said land, that they be directed to be enforced against real property formerly of said Milbank, in the inverse order of alienation by him.
    
      Moses Ely (Ely & Smith, attorneys), for plaintiff and defendant Fullerton.
    I. The surety is entitled to be subrogated to all the securities held by the assured.
    II. The plaintiff, when he became surety, was endowed by virtue of his suretyship with an incohate, contingent interest in said property, to the amount in which he should afterwards respond by reason thereof. Until payment, his rights in the property were analogous to those of a married woman in the real estate of her husband, during his life; after payment, to those after Ms death, with no provision for her in lieu of dower.
    III. His mere act of suretyship did not make plaintiff a privy to the record, and the court had no inherent jurisdiction as to him. to do anything which would operate on any of Ms rights.
    IV. The court can only affect the lien of an unreversed and unimpéached judgment by order, upon notice to the surety to mark the docket " secured on appeal."
    V. The order, having been made without notice to the plaintiff, was inoperative as to his rights, and his only remedy to remove the cloud on Ms title was by-action.
    VI. The plaintiffs and defendants are not in pari delicto. His interests were perfected before theirs were acquired. What his interests were, was a matter of record, and an examination of the records would have shown at any time that the court had no jurisdiction to affect Ms interests by the order.
    VII. The equities of the plaintiff are at least equal to those of the defendants, and had earlier existence. Qui prior est tempore, potior est jure. Plaintiff’s right of subrogation has not been impaired by any act or sufferance of his own ; whereas, the contesting defendants’ rights were acquired by active and affirmative conduct.
    VIII. The lien of the $6,000 mortgage has not priority of the judgment on the ground that it was borrowed to take up the Churchill mortgage, for the agreement on record shows that the loan was not for the purpose of taking up that mortgage.
    IX. Saving issued executions to the county in which the judgment debtor resided, plaintiff was not bound to further pursue his remedy at law by issuing execution to another county before bringing this suit, even though the judgment debtor had property in the other county (Shaw v. Dwight, 27 N. Y. 244). Besides, the Dutchess county property was incumbered for more than it was worth.
    X. The defendants having once already materially amended their answer on motion, this second application should be denied. But if granted, the facts alleged would not defeat this action. No present owner of the property sold to Garrison is a party to this suit, or is asked to be made such, nor have defendants pleaded there is a defect of parties (Code, §§ 147, 148).
    XI. The record in this ease does not show notice to the sureties; but even if it did, the recital would only be presumptive evidence of the fact (Potter v. Merchant’s Bank of Albany, 28 N. Y. 641).
    ■ XII. Even if defendant Fullerton is chargeable with notice or with consent, such notice or consent cannot be held to have prejudiced the co-surety (3 Kent’s Com. (11th ed.), p. 143, n. “b” ; 1 Pars. B. & N. 502; Gates v. Beecher, 60 N. Y. 523; Willis v. Green, 5 Hill, 232).
    XTTT. The notice given by the defendant Fullerton’s-firm, as attorney for Milbank, only bound Mm as attorney, but not as surety.
    
      XIV. Nor was knowledge by Ms partners notice to Mm, for it was obtained while acting in the range of their agency as partners, but in no respect in relation to any of his private affairs.
    XV. As Fullerton had no actual notice and gave no personal assent, and the defendants knew of no appearances of assent, for they relied blindly on the docket, he is not bound thereby (Bigelow on Estoppel, 480).
    XVI. The right to make the order is a strictly statutory one. There is no inherent power to do so, at least, after an appeal to the court of appeals. After such an appeal is perfected, the cause, judgment and docket are absolutely removed to that court, and while they remain there the court below has no control over them whatever, except such as is expressly conferred by statute ; and that must be strictly .and regularly pursued. An irregular pursuit of it is a usurpation, and the act will be vacated when exposed.
    
      Henry E. Davies and Julien T. Davies (Davies, Work, McNamee & Hilton, attorneys), for defendants Lanier and Mutual Life Insurance Company, urged :
    I. Fullerton is estopped from setting up this claim, because he had notice of the proceedings to mark the docket as one of the firm which obtained the order. An attorney is bound by and can take advantage of the acts of his partners (McFarland v. Crary, 8 Cow. 253 ; Harland v. Lilienthal, 53 N. Y. 438; Weetjen v. St. Paul, &c. R. R. Co., 4 Hun, 529).
    II. He cannot obtain the affirmative relief he asks. Section 274 of the Code refers to a condition of hostility between the parties on each side, and allows affirmative relief to a defendant against his co-defendant only when such relief consists in adjusting their equities that need consideration in view of a claim made against them both by the plaintiff (Kay v. Whittaker, 44 N. Y. 565 ; Mechanics’ Sav. Inst. v. Roberts, 1 Abb. Pr. 382 ; Woodworth v. Bellows, 4 How. Pr. 24 ; Norbury v. Seeley, Id. 73).
    
      III. Brockman’s rights under these judgments would not permit a resort to the premises in question, and Green and Fullerton’s rights are none other than Brockman’s (Code, § 282). The omission to serve the sureties was an irregularity and not a jurisdictional defect (Blackmar v. Van Inwager, 5 How. Pr. 367; Gould v. Root, 4 Hill, 554; Livingston v. Roberts, 3 Abb. Pr. 231; Burrall v. Vanderbilt, 6 Id. 70 ; 1 Bosw. 642 ; Munn v. Barnum, 2 Abb. Pr. 409 ; Wells v. Kelsey, 25 How. Pr. 384).
    IV. Green was released as surety by the entry of the order of January 26,1871. As the order was made, it must be presumed Brookman did not object to the motion being heard because the sureties had not been notified, as such an objection would have been fatal to the motion (Jackson en dem. Smith v. Wilson, 3 Johns. Cas. 295). Appearance and omission to object, is a waiver of a statutory requirement which is not jurisdictional (Buffalo & N. Y. R. R. v. Brainard, 9 N. Y. 100; Walker v. Wainwright, 16 Barb. 486 ; Farmers’ Loan & Trust Co. v. Reid, 3 Edw. Ch. 414). By Brook-man’ s waiving the irregularity the sureties were discharged (Bank of Albion v. Burns, 46 N. Y. 170 ; Chester v. Mott, MS. Ct. of Appeals ; Rathbone v. Warren, 10 Johns. 587; Wells v. Kelsey, 25 How. Pr. 384).
    V. Section 282 of the Code can be given proper «effect only by holding the sureties discharged under the facts of this case (Jackson v. Burgott, 10 Johns. 457; Same v. West, Id. 466 ; Same v. Phillips, 9 Cow. 94).
    VI. Green, being discharged for want of notice, was a volunteer in his payment to Fullerton, and takes only Fullerton’s rights in the judgments (N. Y. State Bank v. Fletcher, 5 Wend. 85).
    VII. The purchaser and mortgagee had a right to rely on the docket, as marked by the clerk, under the authority of the order (Taylor v. Ranney, 4 Hill, 619 ; Lownds v. Remsen, 7 Wend. 35, 41; Beebe v. Bank of N. Y., 1 Johns. 529 ; King v. Harris, 34 N. Y. 330; Driggs v. Simson, 3 Supm. Ct. [T. & C.] 786, affi’d in 60 N. Y. 641 ; Foot v. Dillaye, 65 Barb. 521; Union Bank v. Duryea, 3 Hun, 210; Roderigas v. East River Sav. Inst., 63 N. Y. 460).
    VIII. The plaintiff cannot in effect appeal from the court making the order, by attacking and seeking to set it aside in this action. The court will not extend the lien of the judgments beyond their legal and statutory effect (Buchan v. Sumner, 2 Barb. Ch. 195).
    IX. The lands owned by the judgment debtor subject to the lien of the judgments should be sold in the inverse order of alienation (Eddy v. Traver, 6 Paige, 521; Vartie v. Underwood, 18 Barb. 561; Barnes v. Mott, 64 N. Y. 397, 402). The court should cause C. K. Garrison, owner of other property subject to the lien of the judgment, to be made a defendant, if a complete determination cannot be had without, and such an order can be made at any time before judgment (Davis v. Mayor, 2 Duer, 663; Shaver v. Brainard, 29 Barb. 25 ; Carswell v. Neville, 12 How. Pr. 445; Code, § 122).
    X. The defendants, Lanier and the Mutual Life Insurance Company, should be subrogated, the latter to the amount of $6,000, and the former to the amount of $4,000 (Barnes v. Mott, 64 N. Y. 397; Hyde v. Tanner, 1 Barb. 76 ; Barnes v. Camack, Id. 392; Champlin v. Laytin, 18 Wend. 422 ; Mayor v. Colgate, 2 Duer, 1; Allen v. Mayor, 4 E. D. Smith, 404; Hurd v. Hall, 12 Wis. 135 ; Pitcher v. Turin Plank Rd. Co. 10 Barb. 436; Patterson v. Burdsall, MS. Ct. of Appeals; 2 Weekly Digest, 222; Burnhisel v. Firman, 23 Wall. 170 ; Padgett v. Lawrence, 10 Paige, 170; Millspaugh v. McBride, 7 Id. 509 ; Dickerson v. Tillinghast, 4 Id. 221).
    
      
       See also Grandin v. LeRoy, 2 Paige, 509; Bell v. Spotts, 40 Super Ct. R. 552; Clark v. Sawyer, 2 N. Y. 498; and also Stromberger v. McGovern, 56 Id. 12; Davis v. Morris, 86 Id. 569.
    
   Van Vorst, J.

The mortgage to Timothy G. Churchill is of a date and lien anterior to the Brook-man judgment.

As the moneys paid and advanced by the defendants, the Life Insurance Company and Lanier, in all the sum of $10,000, was so paid and advanced, to-take up that mortgage, upon the understanding and belief that there was no lien on the premises but that mortgage, it is just and equitable that these parties should be subrogated to the rights of' Churchill and his mortgage (Barnes v. Mott, 64 N. Y. 397).

The plaintiff is in no worse position by reason of the-cancellation of that mortgage, and has not acquired any rights against it, solely through these defendants, paying it off, under the supposition that the property was otherwise unincumbered, and he must yield to the equity of these defendants. The learned counsel for the plaintiff, in his closing argument, frankly concedes the justice and propriety of this, notwithstanding such-conclusion places the Brookman judgment, in any event, in subordination to the claims of these two-defendants, under that mortgage, which they hold for-their protection. This result, although it involves the dismissal of the complaint as to the defendant, the Mutual Life Insurance Company, does not absolutely end the controversy as to the other defendants who-have answered. Some preliminary objections taken by the defendant Lanier to the plaintiff’s action must be noticed.

One is that the action is unnecessary, as the relief demanded, if proper to be granted, could have been obtained by motion in the original suit.

This objection, I think, would have been good if no parties were concerned other than the sureties and the parties to the action in which the judgment was obtained.

It cannot but be, that if a judgment has been marked “secured on appeal,” without notice to the sureties, that they could apply to the court, by motion in the action, to vacate an order so improvidently made.

As section 282 of the Code provides for giving them notice of a motion so to mark the judgment, they .should have a standing, affirmatively, to bring the matter before the court, in the same manner for relief against an order made without notice to them. But when the rights of others, purchasers and mortgagees, strangers to the action in which the judgment was recovered, are concerned, they cannot be disposed of in such summary manner, and an action becomes necessary.

Nor is the objection available that in the event the order marking the judgment secured on appeal be adjudged void, the plaintiff’s remedy at law was ample.

The jurisdiction of a court of equity upon the matters alleged in the complaint, cannot well be questioned.

But, although the relief sought may not be beyond the jurisdiction of a court of equity, it was and still remains a rule that when the aggrieved party has a complete remedy at law, he will be remitted to that forum.

But it was repeatedly decided by the chancellor that after a party had submitted to the equitable cognizance of an action, it was too late to object that the remedy of the party was at law.

This objection must be taken at the earliest opportunity, and by answer (LeRoy v. Platt, 4 Paige, 77; Cumming v. The Mayor, &c., 11 Id. 596). And under the present system the same rule obtains (Truscott v. King, 6 N. Y. [2 Seld.] 147, 165; Cox v. James, 45 N. Y. 557-562).

No such objection having been taken by answer, this objection cannot now be urged.

It remains to consider the chief question about which a contention exists between the plaintiff and the defendant Lanier, and in which the defendant Fuller» ton is also concerned. '

Section 282 of the Code provides that the court in which a judgment is recovered, may, on special motion, after notice to the person owning the judgment, or toMs attorney, and to the sureties to the undertalcing on appeal, by order except from the lien of the judgment the whole of the property upon which the judgment is a lien, or a specific part thereof, and may direct an entry to be made by the clerk on the docket of the judgment that the same is “ secured on appeal,” and thereupon the judgment shall cease, during the pendency of the appeal, to be a lien upon the property so exempt, as against purchasers and mortgagees in good faith.

These provisions in regard to marking a judgment secured on appeal being created by statute, in order to obtain a valid order the statute must be complied with. Jurisdiction is only obtained in that way. However it may be with regard to the persons who have notice of the application, it cannot be reasonably insisted that an order obtained under the section of the Code now considered, would be good as to those who had received no-notice, and had no opportunity to be heard.

The rights and remedies of such person cannot bo affected by such order to Ms injury.

Brookman, the plaintiff in the judgment, had notice, and he appeared by counsel and opposed the application. The grounds of his opposition do not appear. As to the subject-matter of the application, the court had jurisdiction upon service. Having been served with notice thereof, he is bound by the order made on the motion. He did not appeal from the order, but submitted to the same (Gould v. Root, 4 Hill, 554; Fisher v. Hepburn, 48 N. Y. 41)

It is true if the order was void as to Mm, he was not bound to appeal (Kamp v. Kamp, 59 N. Y. 212).

But as to him, all the purposes contemplated by the statute were answered. He had his day in court, and if the order was erroneous, he had ample redress by appeal.

The law firm of which Mr. Fullerton, one of the sureties on the undertaking, was a member, made the motion. The notice of motion states the fact that Mr. Fullerton was one of the sureties.

With respect to Mr. Fullerton, he must be regarded as having participated in the action of his firm in ob taining the order. A member of a law firm should be regarded civiliter, as having notice of the acts of his firm in all legal proceedings conducted by it honestly and in an orderly way.

The several members of the firm constitute but one person in law. “The act of one in the business which concerns the subject-matter of the partnership, is the act of all the parties” (McFarland v. Crary, 8 Cow. 258). The same rule would apply to the business regularly prosecuted by the firm.

As already stated, it does not appear what objections the counsel of Brookman urged in opposition, but it is not probable that he objected that Mr. Fullerton had not been served. To any such objection, the answer could have been well made, that he was present, through his firm, making the motion. That would have been a good answer. He was constructively present, as an officer of the court, asking for the order. He could not in the same breath ask for and oppose it. The fact stated in the notice of motion that Mr. Fullerton was one of the sureties, influenced the making of the order.

As to the creditor and Mr. Fullerton, the order must be held valid, and the defendant Lanier, who purchased the property in question, and advanced his means, relying upon the action of Mr. Fullerton’s firm, in obtaining the order, and upon the acquiescence of the creditor therein, by not appealing therefrom, should be held harmless in his action based upon the validity of the order. But as to the plaintiff, the co-surety with Mr. Fullerton, he has neither done or omitted any act so as to be prejudiced by the order. His rights are the same as though the order had not been made.

Upon payment of the judgment he would be entitled to be subrogated to the rights of the creditor, and enforce the same against all property upon which it was a lien, when he became surety, unless the lien had been lost through some act or omission, of the creditor.

The creditor, as the owner of the judgment, could without doubt by some affirmative act give up the lien of the judgment, but that would be to discharge the sureties. But nothing of that kind can be claimed in this case. If a creditor acts in bad faith or is grossly negligent, whereby the value of the security is injured, the loss thus occasioned is a defense to that extent to the sureties (Black River Bank v. Page, 44 N. Y. 453).

In Hinckley v. Kreitz, 58 N. Y. 583-592, Chuboh, Ch. J., adopts the comprehensive statement of Stoby. “ That if a creditor does any act injurious to the surety, or inconsistent with his rights, or if he omits to do any act, when required by the surety, which his duty enjoins him to do, and the omission proves injurious to the surety; in all such cases the latter will be discharged” (1 Story’s Eq. Juris. § 325).

The creditor performed no act injurious to the surety, neither was he guilty of gross negligence. He employed counsel to oppose the motion. In spite of his opposition the motion was granted. The lien was not affected by any act or blameable omission of the creditor. He could not control the decision. His omission to appeal would not have the effect'to discharge the sureties. It cannot be said that this omission was gross negligence. He had counsel, and presumedly acted upon his advice.

Plaintiff did not pay the judgment creditor.

The judgment was paid in lull by Mr. Fullerton, alter it had been affirmed on appeal, plaintiff agreeing to pay the one hall thereof. Mr. Fullerton took an assignment to himself ol the judgment, and plaintiff afterwards, without any knowledge ol the order marking the judgment “ secured on appeal,” paid Mr. Fullerton one hall, and took an assignment Irom him ol the judgment to that extent.

II the action ol Mr. Fullerton’s firm in obtaining the order had had the effect to cancel the lien ol the judgment as to plaintiff, it may be that he could not have maintained an action lor contribution against his co-surety, but as the order did not have that' effect his ■claim lor contribution was good.

It is urged by the counsel lor the delendant Lanier, that the plaintiff acquired no right, and can invoke no remedies under the judgment, other than those existing in lavor ol Mr. Fullerton; his assignor, and that the lien being extinguished by the order, as to him, it cannot exist in lavor ol his assignee.

An assignee, in general, succeeds to no greater rights than those existing in lavor ol the person irom whom he takes title.

But the rights and remedies ol plaintiff do not flow altogether Irom the assignment ol the judgment to him.

It was in virtue ol his becoming surety on the appeal bond, that he was, upon payment ol the judgment in whole or in part, entitled to be subrogated to the rights ol the creditor under the judgment, existing at the time he signed, the undertaking on appeal.

And when he paid one-hall the judgment, although such payment was made to his co-surety, his right to enforce the same was unaffected by the order in question, made without notice to him.

It is difficult to discover any equity in favor of defendant Lanier, superior to the plaintiff’s equitable rights of complete subrogation to the creditor’s securities and liens unaffected by the order.

The defendant, Lanier, has acquired no such equity through any act or omission of the plaintiff.

The invalidity of the order in question, so far as it affected the plaintiff, appeared in the proceedings, and was open to any person proposing to deal with the judgment debtor, or acquire an interest in his property.

There are cases in which the rights of bona fide purchasers, taking title to land, when the docket of a judgment against the same showed that it was vacated, have been protected, notwithstanding the entry on the docket was subsequently vacated (King v. Harris, 34 N. Y. 330 ; Union Dime Savings Institution v. Duryea, 3 Hun, 210; Driggs v. Simson, 3 Supm. Ct. [T. & C.] 786 ; Beebe v. Bank of N. Y., 1 Johns. 529).

It does not appear that the orders in question in these cases were void for want of jurisdiction in the court making the same, or that any such defect appeared in the proceedings.

On the other hand, Kamp v. Kamp, supra, holds that no rights can be acquired under an order which the court had no jurisdiction to make, and that the person against whom it is sought to be enforced may resist it at all times.

But, although the plaintiff is entitled to relief against the order in question, in so far as it presents an obstacle to his temedles under the judgment, and his right to enforce the same against all the property of the judgment debtor, upon which it was a lien when he signed the undertaking ; yet, under the evidence I cannot say that he is absolutely entitled to satisfy the same out of the property of the defendant Lanier.

It appears that the judgment debtor owned other real property in the city of New York of considerable value, upon which the judgment was also a lien, and that he continued to own and hold the same until November, 1872, when he conveyed the same to C. K. Garrison. Such conveyance being made long after the deed to the defendant Lanier.

The rule in equity is that when resort is to be had against property sold by a judgment debtor, under circumstances and conditions existing in this case, the judgment must be enforced by sale of the land in the inverse order of alienation (Barnes v. Mott, supra; Guion v. Knapp, 6 Paige, 35).

The fact of the holding of such land by the judgment debtor, and its conveyance to Garrison, is set up in the amended answer of the defendant Lanier. Garrison is not, however, a party to this action, and he cannot be concluded by any judgment which may be made herein until he be made a party.

From all that appears, the property last conveyed by the judgment debtor should be sold by the plaintiff under the judgment. But there may exist reasons in this instance why such rule should not prevail. That can only be determined after an opportunity to Garrison to be heard has been given.

A complete determination of the plaintiff’s rights, and the equities of the defendant Lanier, require the presence of Garrison as a party defendant.

Such result will obviate the necessity of another action.

The equities of the defendant Lanier cannot be defeated by an omission to make Garrison a party; and unless a question which must be determined before the plaintiff can enforce his judgment out of the property of the defendant Lanier is now decided, another action is inevitable, which should be avoided.

It is a rule in equity that all persons should be made parties whose presence is necessary to a complete decree or judgment with regard to the interests involved in the issues raised by the pleadings.

Under the provisions of the Code a plaintiff is not at liberty to select just such parties as he chooses to affect by the judgment, and none others (Moak's Van Santvoord's Pleadings, 105).

Equity favors the bringing in all the parties interested in the particular subject matter, when complete justice can bf done to all, and thus prevent excessive litigation (1 Story's Eq. Juris. § 457).

And when it appears that a complete determination of the controversy cannot be had without the presence of other parties, the court must cause them to be brought in (Code, § 122; Shaver v. Brainard, 29 Barb. 25; Valentine v. Wetherill, 31 Id. 655).

This duty is imperative upon the court. I think it, therefore, my duty, in view of the plaintiff’s claims and the rights of the defendant Lanier, in both of which Garrison is interested, and in order that there be a complete and effective determination of the matters in issue, to direct that he be made a party defendant, and "that further proceedings herein be suspended until he be made such party. And to this end, that the plaintiff be at liberty to amend his complaint, without costs, making C. K. Garrison a defendant. Which being done, the cause may be brought on for a further hearing, so that a complete judgment may be made, in which the rights of all concerned will be adequately protected and secured.  