
    Elsie R. Feitner, v. Francis X. Hoeger et al.
    
    
      (New York Court of Common Pleas, General Term,
    
    
      Filed April 2, 1888.)
    
    1. Infant—Deed made by is voidable—Release of bight of dower BY INFANT WIFE JOINING WITH HUSBAND IS VOID.
    A mortgage like a deed by an infant is ordinarily voidable, not absolutely void, but where an infant wife joins with her husband in a mortgage in order to release her right of dower it is as to her absolutely, void.
    2. Same—Infancy may be pleaded as defense to action.
    The wife may in such case plead her infancy at the time of the execution of the mortgage as a defense to an action for its foreclosure.
    3. Foreclosure of mortgage—Action for—Service of summons .
    In an action for the foreclosure of a mortgage where the wife has no interest in the property except an inchoate right of dower, service of the initiatory process in the action against the husband and wife on the husband alone is good service on both.
    4. Same—Action for—Guardian ad litum for infant defendant— Failure to appoint is irregularity—Judgment in such cases is voidable.
    ■ Reid, That the failure to appoint a guardian ad litem, for an infant defendant in an action for the foreclosure was an irregularity, but that a judgment taken therein by defendant was not void but voidable.
    5. Same—Right to impeach judgment of foreclosure—May be lost BY'laches.
    
      Reid, That such judgment would be opened upon timely application made by the infant, but that the right to impeach the title of a bona fide purchaser at a s -le under sucha judgment might be lost by laches in making such an application.
    6. Judgment—Against wife—Not within 2 R. S., (6th ed.), 1122, § 16.
    The provision of 2 Revised Statutes (6th ed.), 1122, § 16, that no judgment or decree confessed by or procured against the husband, and no laches or default of his shall prejudice the wife’s right to dower, has no application • to the case of a judgment recovered against the wife.
    Exceptions ordered to be heard at general term where verdict was directed for defendant.
    The action was brought by Mrs. Feitner, as widow of George Feitner, who died in May, 1882, for dower in the premises on north side of Forty-eighth street, 375 feet west of Ninth avenue. The title of defendant Hoeger is derived through several mesne conveyaances from Lewis Lewis, to whom the premises were conveyed by Samuel Cowdrey, master in chancery, by deed dated December 8, 1838, recorded December 14, 1838, by virtue of a sale under a 'decree of foreclosure in chancery, and made in a suit to foreclose a mortgage made by said George Feitner and Elsie, his wife, this plaintiff, to Andrew Purdy or Prudy, dated May 3, 1836, acknowledged May 7, 1836, and recorded the same day.
    Mrs. Feitner was an infant when she executed and acknowledged the mortgage and when the decree of foreclosure was made. She was not personally served with the subpoena in the suit, but her husband was served with it for her. No appearance was entered for them and no guardian ad litem, was appointed for her.
    
      Henry Brewster, for pl’ff; B. J. Lewis, for def’t.
   Daly, J.

A mortgage like a deed by an infant is said to be voidable, but not absolutely void (Thomas on Mortgages, 134, and cases cited), but an exception has been made with regard to conveyances by a wife joining with her husband in order to release her dower, and such a deed by an infant feme covert, is said to be absolutely void. Sherman v. Garfield, 1 Den., 329; Sanford v. McLean, 3 Paige Ch., 121. But whether the mortgage, was as to her, void only, or absolutely void, she had a defense on either ground to the foreclosure and could have pleaded it. Lewis v. Smith, 9 N. Y., 502. There is no decision to the contrary; the case of Walsh v. Powers (43 N. Y., 21), cited by plaintiff’s counsel not being in point.

As Mrs. Feitner might have pleaded infancy in the foreclosure, the decree, in the suit is binding upon her, notwithstanding the fact that she was an infant at the time it was entered, and the failure to have a guardian ad litem appointed for her. The court of chancery had jurisdiction of the subject-matter and of the parties. Its decree was therefore not void but voidable only and might have been opened and set eside upon motion of this plaintiff seasonably made.

It was not necessary to serve her with the subpoena. Service upon her husband for her was sufficient in an action of the character of that under consideration. In an action for the foreclosure of a mortgage, where the wife has no interest in the property except an inchoate right of dower, service against the husband and wife on the husband alone is a good service on both. Ferguson v. Smith, 2 Johns. Ch., 139.

On a bill to foreclose a mortgage executed by husband and wife, the subpoena may be served upon the husband only. Service upon the wife is only necessary where the proceeding is against her in respect of her separate estate, and her husband is only a nominal party; not where the estate is in the husband in right of the wife. Leavitt v. Cruger, 1 Paige, 421, citing 9 Vesey, 486, and 2 J. C., 139; see, also, to the same effect, Eckerson v. Vollmer, 11 How. Pr., 42, citing 2 Chitty Genl. Pr., 260.

It was irregular not to have a guardian ad litem appointed, but that omission does not make the decree void. Where the infant defendant, in an action for the foreclosure of a mortgage, is served with process but no guardian. ad litem is appointed and judgment is taken by default, the judgment is not void but voidable.

Upon the application of the infant, made within a reasonable time, such a judgment would be opened; but where there is laches in making such application, the right to impeach the title of a bona fide purchaser at a sale under such judgment is lost. McMurray v. McMurray, 66 N. Y., 175.

I can see no distinction in principle in such a case between the infant wife of a mortgagor and any other infant who is a necessary party to the foreclosure. There was undoubtedly laches in this case and the title of defendant derived through the sale under the decree should not be disturbed.

The statute cited by plaintiff (2 E. S. [6th ed.], 1122, § 10), providing that no judgment or decree confessed by or procured against the husband, and no laches or default of his shall prejudice the wife’s right to dower, has no application to the case of a judgment recovered against the wife. The exceptions to admission and exclusion of evidence are immaterial, in view of the authorities which dispose of this case.

The plaintiff’s exceptions should be overruled, and judgment ordered for the defendant upon the verdict.

Van Hoesen, J.

—There is but one important question in this case, and that is, are the allegations in the bill of complaint in the old foreclosure suit sufficient to apprise the then defendant (now the plaintiff), Elsie Feitner, that the mortgagee was seeking in the foreclosure suit to cut off her inchoate right of dower, because she had joined her husband, in executing the mortgage?

If the bill of complaint did contain such allegations, then the decree in the foreclosure suit is a bar to the claim of dower now made by Mrs. Feitner. In Lewis v. Smith (9 N. Y., 502), and in Rathbone v. Hooney (58 N. Y., 463), it was held that a decree of foreclosure did not cut off rights not referred to in the complaint, though the persons entitled to those rights were parties to the action. On this ground only did the plaintiffs in those cases prevail, and the deduction is irresistible that if they had been called upon to defend in the foreclosure suit the rights that they subsequently asserted in the cases that have been cited, it would have been decided that the decree in foreclosure was a perfect bar to the rights claimed. See also Malloney v. Horan, 49 N. Y., 111.

Mrs. Feitner is not classed in the bill of foreclosure among those “ who have, or claim to have, some interest in the premises as subsequent purchasers, incumbrancers or otherwise.” In Lewis v. Smith (supra), the dower interest of the wife was nowhere referred to, and the dowress herself, who had other interests in the property, was made a defendant as “one who had, or claimed to have, some interest subsequent to the mortgage.”

This did not bar her claim to dower. In Rathbone v. Hooney (supra), the mortgagors were, one a trustee, and the other a cestui que trust, of the property mortgaged, but the mortgage made no reference to the trust, nor did the complaint, or the judgment of foreclosure. Waiving the objection as to the nullity of the mortgage of a trust extate, the court of appeals held that though the trustee was a party to the foreclosure suit in her individual character, yet because the complaint made no mention of the trust' or of the duties of the trustee, or of the rights of the cestui que trust, the judgment of foreclosure did not bind the trustee in his representative capacity, or preclude her successor in the office of trustee from asserting title to the land against a bona fide purchaser at the sale under foreclosure.

If the complaint had alleged the existence of the trust, and the making of the mortgage by the trustee and the cestui que trust, and had demanded that both cestui que trust and trustee should be barred and foreclosed, would not both of them, if they had made default, have been bound by the judgment of foreclosure? I find nothing to the contrary in any of the cases that have been cited.

In the case under consideration, the bill of complaint alleges “ that George Feitner, together with Elsie, his wife, did duly execute under their hands and seals, a certain indenture of mortgage, conveying the tenements, hereditaments, etc., etc., and also all the estate, right, title, interest, dower, property, whatsoever of them, the said George and Elsie.” It further alleges, that the mortgage was acknowledged in due form of law by said George and Elsie, and was recorded. It prays that all the defendants be foreclosed of and from all equity of redemption, and claim of, in and to the mortgaged premises.

These allegations were, in my judgment, sufficient to call upon the defendant, Elsie, to defend her inchoate right of dower.

The validity of the. mortgage as made by her, is asserted, and because it is valid as against her, the prayer is that she be barred and foreclosed. There can be no doubt that the validity of her act in joining in the mortgage, is something that could, would and should, have been tried under the complaint in that suit, if Mrs. Feitner had chosen to plead infancy, as she might have done.

I think the judgment of foreclosure is binding upon her, and for that reason I concur with Judge Daly m ordering judgment for the defendant.  