
    Grace E. Kursheedt and Serena Kursheedt, Resp'ts, v. The Union Dime Savings Institution of the City of New York, App’lt.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed January 21, 1890.)
    
    Foreclosure—Wife of grantee whose deed is not recorded should BE MADE A PARTY WHERE MORTGAGOR IS NOT SERVED.
    Defendant foreclosed a mortgage, naming the mortgagor and one S. as parties defendant, but the mortgagor was not served and did not appear. 8. was a grantee whose deed was not recorded and defendant had no knowledge thereof. S. had a wife who was not made a party to the action. Held, that in view of the fact that the mortgagor was not served, the omission to make Mrs. 8. a party rendered the judgment ineffectual to bar her dower; that she held as purchaser from the mortgagor, and her rights were not affected by the fact that her husband was a party.
    Appeal from judgment of the general term of the supreme court in the first judicial department, affirming judgment entered on decision of the court in favor of the plaintiffs.
    
      William IIArnoux, for app’lt; M A. Kursheedt, for resp’ts.
    
      
       Affirming 7 N. Y. State Rep., 874.
    
   Bradley, J.

The purpose of this action was to recover back the purchase money paid by the plaintiffs to the defendant upon a contract, whereby the latter agreed to sell and convey to them certain land situated in the city of Hew York; and"the alleged ground of the claim is that the defendant was unable to convey to the plaintiffs such title as they were entitled to under the contract. They recovered. The title which the defendant claims to have came through that taken by one Rowe from Catharine A. Ferris who had the title on the 1st day of December, 1870, when she made a conveyance to Rowe. That conveyance also covered land which the defendant by contract undertook to sell and convey to one Todd, who also brought an action against this defendant to recover back purchase money.

The proposition, urged on the part of the plaintiffs in this action, that the title taken by the defendant was defective on the alleged ground that the deed from Ferris to Rowe was not sealed, has, at the present term of this court, been determined in Todd against this defendant upon the same evidence as that presented by the record here, adversely to the plaintiffs, and therefore will have no further consideration on this review.

There is, however, a further question in the present case which requires consideration. In May, 1874, one Clark, claiming to be the owner of the premises, made to one Clapp a mortgage upon them to secure the payment of $22,000 according to the condition of a bond made by the mortgagor to the mortgagee, which bond and mortgage were duly assigned by Clapp to the defendant, and that afterwards and in July, 1874, the defendant brought an action to foreclose the mortgage, and filed with the proper clerk the summons and complaint with a notice of the pendency of the action.

The mortgagor, Clark, and one Thomas L. Sandford were named as defendants in the foreclosure action. The summons was in no manner served upon Clark, nor did he appear in the action. Sandford appeared and defended; and, amongst other matters, alleged a conveyance of the premises by Clark to him. The fact was that he had a deed to that effect in his possession at the time of the commencement of that action. It was not then recorded, nor was the defendant then advised that such a deed had been made. But at the time of the commencement of that action Sandford had a wife, Delia. A. Sandford, who was not made a party defendant therein. The question arises whether, in view of the fact that Clark was not served, the omission to make Mrs Sandford a party defendant in the foreclosure action, rendered the judgment in that action ineffectual to bar her inchoate right of dower. Such would have been the effect if Clark had been served with the summons or had appeared in the action. Old Code, § 132; Fuller v. Scribner, 76 N. Y., 190. This is on the permitted assumption (without considering the effect if otherwise) that the Savings Institution was in no manner charged with notice of the conveyance to Sandford at the time of the' commencement of that action. Assuming that Clark had conveyed his interest in the property, he was not a necessary party to the action of foreclosure, but if the action had been brought and prosecuted upon that assumption, it was necessary to make those deriving any title or interest in it from his conveyance parties defendant.

Prior to the Code, the failure to record a conveyance made subsequently to a mortgage and prior to the commencement of an action for its foreclosure or filing lis pendens did not obviate the necessity of making such subsequent grantee a party defendant to bar his right of redemption. Those not made parties, and thus affected by the judgment, were purchasers and incumbrancers who became such pendente lite. Haines v. Beach, 3 John. Ch., 459 ; Hayden v. Bucklin, 9 Paige, 512; Butler v. Tomlinson, 38 Barb., 641.

The provisions of the Code so modified the rule as to make the action and its result effectual as against subsequent purchasers and incumbrancers, whose conveyances are not recorded at the time of filing the notice of pendency of the action. This may not be the rule when a plaintiff in such an action has actual notice of the unrecorded incumbrance at the time of its commencement. Lamont v. Cheshire, 65 N. Y., 30. There is no occasion here to consider that question. It was contemplated by the provisions referred to of the Code, that those whose conveyances or incumbrances appear by the record should be made parties in order to charge, with the result of the action, those holding under them not made parties, whose interests do not so appear of record at the time of filing such notice. That is to say, that the latter should be barred by charging the former as defendants in the action. The fact, therefore, that Clark had conveyed the property did not, for that purpose, obviate the necessity of serving him with tie summons and charging him by the decree and thus through him by that means to bind any person not made a party who had by his unrecorded conveyance taken any right relating to the title to the premises. It may be assumed that the notice was duly filed, representing Clark as a party defendant, but that of itself was ineffectual to bar Mrs. Sandford’s right of redemption, if she took any such right through or by means of the conveyance. Such result was dependent upon effectuating the proceedings in the action against him as a party defendant.' W ithout accomplishing such a result, he was in practical effect no more a party than he would have been if his name, as such, had not appeared in the summons.

The grantee, Sandford, in the conveyance made by Clark, was served, and, so far as he was concerned, the failure to serve Clark had no importance, and its only consequence has relation to Mrs. Sandford, and the effect of the foreclosure action, the decree and its execution, if executed, upon her alleged inchoate right of dower in the premises. Assuming, as we may for the purposes of this review, that such right existed when the foreclosure action was commenced, it was the subject of her protection by means of defense or any other adequate remedy until lawfully barred. Mills v. Van Voorhies, 20 N. Y., 412; Simar v. Canaday, 53 id., 298; Denton v Nanny, 8 Barb., 618.

The right of dower is not derived from the husband. It is a right at common law, and arises by reason of the marriage, and by operation of law. It is a right which attaches on the land when the seizin and the marriage relation are concurrent. And such is the effect of the statute. IB. S., 740, § 1.

When it was essential, under an early statute of this state, to determine the relation of the wife to the grant made of land to her husband, it was held that the wife’s inchoate right of dower vested at the moment of the grant to the husband; and that she took such right constructively as purchaser from the grantor. Sutliff v. Forgey, 1 Cow., 89; S. C., 5 id., 713; Priest v. Cummings, 20 Wend., 350 ; Connolly v. Smith, 21 id., 61; Lawrence v. Miller, 2 N. Y., 251.

And inasmuch as Mrs. Sandford did not derive her inchoate right of dower from her husband, the fact that he was a party defendant to the foreclosure action did not operate to bar or defeat her right of redemption. In view of the apparent situation, arising from the failure to bar this alleged right of Mrs. Sandford, the title which the defendant was able to convey to the plaintiffs was not free from reasonable doubt, and was not the marketable title which, in the contemplation of the parties, was to be conveyed in performance of the contract.

The judgment should be affirmed.

All concur, except Potter and Haight, JJ., not sitting.  