
    THE FARMERS’ LOAN AND TRUST COMPANY a, DICKSON.
    
      Supreme Court, First District;
    
    
      At Chambers, August, 1859.
    Notice of Action Pending.—Parties.—Service and Proof of.—Summons.
    A notice of action pending does not become operative until actual service of summons upon the defendant.
    After the notice of a foreclosure action pending had been filed, but before the summons had been served upon the defendant L. who was proceeded against as owner of equity of redemption, L.’s deed to third parties, which was dated and acknowledged before the filing of the notice, was put on record; and L. was afterwards served.
    
      Held, that L.’s grantees were necessary parties to the action, and that they not having been joined, the purchaser at the sale should be discharged.
    
      It seems, that though a certificate by the sheriff of A., of the service of process in the county of B., is no proof of service, the judgment and sale may be sustained against the purchaser’s motion to be discharged, by allowing an affidavit of service to be filed nunc pro tunc.
    
    
      It seems, that though a summons on which the attorney’s name is not subscribed, but printed, should be deemed a nullity, yet the copy served being correct, the plaintiff should be allowed, nunc pro tunc, to file a copy signed.
    Motion by a purchaser at a judicial sale, to be discharged.
    
      This action was brought to foreclose a mortgage on real estate in the city of New York.
    The complaint and lis-pendens were filed on December 29, 1858. The summons was served on that day upon all the defendants, except Robert Livingston and his wife, the said Livingston being proceeded against as the owner of the equity of redemption, and the other defendants being judgment creditors.
    On July 18, 1859, a deed from Robert Livingston and wife to Madalena Bortano and others, dated November 13, 1858, acknowledged November 8, 1858, was recorded in the office of register of the city and county of New York.
    On January 26, 1859, the summons was served by the sheriff of Westchester county, on Robert Livingston in the city of New York, and on his wife in Westchester county, and his certificate of such service was filed. The name of the plaintiff’s attorney was not subscribed to the summons, but printed at the foot thereof.
    Judgment of foreclosure and sale was made, and entered Hay 4, 1859, and the premises were sold by the referee to Robert Shiells.
    The purchaser objected to take the title on the following grounds:
    1. That the owners of the equity of redemption in the mortgaged premises were not parties to the action, nor bound by the judgment rendered therein.
    2. That there was no sufficient proof of service of the summons on the defendant Livingston.
    3. That the summons was not subscribed by the plaintiff’s attorney as required by the Oode. On an affidavit setting out the above facts, he moved to be discharged from his purchase, and be repaid the 10 per cent., with a reasonable counsel fee for examination of title.
    
      Samuel Riker, for the motion
    I. The purchaser at a judicial sale is not bound to accept a doubtful title. (Gerry a. Post, 13 How. Pr. R., 118.) The rule is not to compel the acceptance of a title against which doubts or suspicions exist of such a character as that the court cannot conscientiously warrant the estate to him. (Coster a. Clark, 3 Edw'd Ch., 430-1, and causes cited; Jackson a. Edwards, 7 Paige, 412.)
    
      II. The owners of the equity of redemption are not parties to this action. The deed from Livingston to Bortano and others was dated and acknowledged in November, 1858. The law' presumes that it was then delivered. The lis-pendens was not filed until December 29, 1858. As holders of a deed of the property, although not recorded, Madalena Bortano, &c., were the owners of the equity of redemption, and were necessary parties to the action. (Hall a. Nelson, 23 Barb., 88; Strong a. Dollner, 2 Sandf., 444; Reed a. Marble, 10 Paige, 409.)
    III. Nor does the amendment of 1858 to the law of lis-pendens affect this case, for the deed from Livingston was not recorded subsequently to the lis-pendens. The lis-pendens has no legal existence until the commencement of the action. (Waring a. Waring, 7 Abbotts’ Pr. R., 472; Burroughs a. Reiger, 12 How. Pr. R., 171; Tate a. Jordan, 3 Abbotts’ Pr. R., 392.) 2. The action is commenced as to each defendant, when the summons is served upon him. (Code, §§ 99, 127, and 139, and cases above cited.) 3. The summons was served on Livingston January 26, 1859. The deed from him was recorded January 18, 1859. So that before the commencement of the action as to Livingston, and before the lis-pendens had any legal existence as to him, the records showed that he had conveyed the mortgaged premises to Bortano.
    IV. The sheriff of Westchester county had no authority as sheriff, to serve the summons in the city of New York, and the proof of service by his certificate is defective, (Code, § 133.)
    V. The summons was not subscribed by the plaintiff’s attorney. (Code, § 128.)
   R. H. Bowne,

opposed, read an affidavit showing that on December 29, 1858, the summons was inclosed to the sheriff of Westchester county, to be served on Livingston and wife; and contended that under the latter part of section 99 of Code, the action was commenced as to Livingston on that day, and that under the amendment of 1858 to section 132 of Code, Bortano, &c., were subsequent purchasers, and bound by the judgment.

S. Riker, in reply.

The provision in the latter part of section 99 of Code, making an attempt to commence the action equivalent to its commencement when the summons is delivered with the intent that it shall be actually served, to the sheriff of the county in which the defendant resided, was designed only to save the action from the operation of the statute of limitations.

Ingraham, J.

The purchaser of mortgaged premises, objects to the title as defective, and moves to be discharged from the purchase, and to have the ten per cent, paid by him refunded.

1. Because the owners of the equity of redemption are not made parties.

The lispendens was filed with the complaint in the clerk’s office on 29th December, 1858, but the summons was not served on the defendant Livingston and wife until 26th January, 1859. On the 13th November, 1858, Livingston and wife conveyed the mortgaged premises to Bortano and others, but the deed was not recorded until 18th January, 1859, and these grantees were not parties to the action.

I have heretofore held that a lispendens filed before service of the summons becomes operative on such service, and giving that effect to the lispendens in this case, it became operative on the 26th January, 1858, as to Livingston and wife. (Benson a. Sayre, 7 Abbotts’ Pr. R., 472, note ; see also Waring a. Waring, 7 Ib., 472.)

The court is not deemed to acquire jurisdiction until the service of the summons (Code, § 139), and until served on each defendant, the action as to him is not commenced. (§ 99.) The provision as to delivering the summons to the sheriff is limited only to the statute of limitations.

The amendment of 1858 (Laws of 1858, 491), does not remedy the difficulty. If the summons had been served on Livingston and wife before the deed from Livingston to Bortano had been recorded, then the amended section of 1858 would have applied, and the notice of lis-pendens filed previous would have been effectual against the grantees; but neither before nor after the amendment of 1858 was the lispendens of any value, until the action was actually commenced against the defendant sought to be affected by it.

The amended section of 1858, places a purchaser whose deed is not recorded in the same condition as if he were a party. If the grantees of Livingston had been parties to the action, they would not have been affected by the filing of the notice of lispendens until the summons was served upon them, they are in no worse condition as purchasers, and until the summons was served on Livingston, they were not included in the description of subsequent grantees.

2. The proof of service of the summons by a certificate of the sheriff of Westchester, of a service in the city of ISTew York, is bad. The sheriff of Westchester had no authority to do official acts out of his county, and his certificate therefor was not proof, but this difficulty can be remedied by filing an affidavit of service nv/nc pro tunc.

3. The summons should have been signed by the plaintiff or his attorney (§ 128), and the printed name of the attorney was a nullity. As the copy served was correct, the plaintiff might also file a copy properly signed nunc pro tnmc.

4. The same remark applies to the complaint on file—as well as the other errors in practice. They can be remedied on application to the court.

For the first reason, however, I am of the opinion that the title is not perfect, and that the purchaser should not be compelled to complete his purchase.

The motion must be granted to discharge the purchaser from his purchase, to direct the repayment of the ten per cent, and interest, and that the plaintiff pay a counsel fee, and his disbursements in examining the title, with $10 costs of motion.  