
    Laura A. Sanford et al., Appellants, v. Lavina. S. White et al., Julius Langenbahn, Purchaser, Respondent.
    (Argued April 7, 1874;
    decided April 14, 1874.)
    The provisions of section 135 of the Oode, authorizing service of summons by publication, and of section 175, authorizing the designation of a defendant by a fictitious name, when his real name is not known, are not applicable to “ unknown owners ’’ in suits for partition; they are to be brought in by the publication of notice substantially in .the form and in the manner prescribed by the provisions of the Revised Statutes (2 R. 8., 186, § 124, as amended by chap. 277, Laws of 1842), which are made applicable to partition suits. (§ 4, chap. 277, Laws of 1842; Code, § 448.)
    The publication of a summons in the ordinary form is not a substantial compliance with said provisions, as they require the published notice, to specify the nature of the action, whether in partition or not, and this is substantial.
    Accordingly, held, where in an action for partition there were unknown owners who were attempted to be brought in by the publication of the summons only, that a purchaser, under a decree therein, was not bound to complete his purchase, because of defect of title.
    Appeal from order of the General Term of the Supreme Court in the first judicial department, affirming an order of Special Term, denying a motion to compel Julius Langenbahn, a purchaser, to complete his purchase, and ordering that he be released and discharged from said purchase. (Reported below, 1 S. C. R. [T. & C.], 647; 46 How. Pr. R., 205.)
    This was an action of partition. The heirs at law, Kitchell Bishop and Jesse Bishop, were necessary parties to the suit, some of them were unknown and were designated in the summons and complaint thus: “ The legal representatives of Kitchell Bishop and Jesse Bishop, deceased, whose names are unknown to the plaintiffs.” They were proceeded against by publication under the Code, the summons as published being in the usual form; a judgment was perfected in the action decreeing a sale of the premises and upon such sale said Langenbahn became the purchaser. He refused to compíete his purchase upon the ground that the proceedings were irregular and title defective.
    
      Charles W. Dayton and Calvin Frost for the appellants.
    The term “ legal representatives ” is a sufficient description and designation of the “ unknown owners.” (Burrill’s L. D., 407; 2 Black.,216; 2 Kent., m. p. 425; 3 Wash, on R. P., 114; Wigram on Wills, 59, 312.) All the rights of the unknown owners are determined by the publication made in this case. (2 Hill, 625; 4 Cow., 296; Hard v. Seixas, 21 Wend., 40; 17 id., 483.) Plaintiffs were not compelled by section 448 of the Code, to resort to the statute as to publication against unknown owners. (Allen v. Allen, 11 How., 277; Jennings v. Jennings, 2 Abb., 13; Crary’s Pr., 321; Wait’s Pr., 535.)
    
      Samuel Hand for the respondent.
    The provisions of the Code as to proceeding against unknown parties by publication do not apply to this case. (Hyatt v. Pugsley, 23 Barb., 303 ; Close v. Van Husen, 6 How., 157; Rosekrans v. Rosekrans, 7 Lans., 486; 1 Wait’s Pr., 535, 536; 1 T. & S. Pr., 379, 380.) The designation of the unknown owners as legal representatives was insufficient. (2 Bouv. L. D., title Rep.; 2 Wms. Ex. [3d Am. ed.], 966; Mc Gray v. Mc Cray, 12 Abb. Pr., 3; Lee v. Dill, 39 Barb., 516.) The title was unmarketable and the purchaser was entitled to be relieved from his purchase and have what he paid refunded, and his expenses in examining the title paid. (Freeborn v. Wagner, 49 Barb., 53; Willard on R. E., 543; Seymour v. Delancey, Hopk., 436; Rayner v. Selmes, 52 N. Y., 579; Matter of Cavanagh, 14 Abb. Pr., 261.)
   Church, Ch. J.

This is a motion to compel a purchaser at a sale ordered in this action, instituted for the partition of ' real estate to complete his purchase, which is resisted by him upon the ground that the title is defective, by reason of irregularity in the proceedings against “ unknown owners.” The court at Special Term denied the motion and sustained the position of the purchaser that the proceedings were irregular, which was affirmed at the General Term. The “ unknown owners” were designated in the summons as the “legal representatives of Kitchell and Jesse Bishop deceased, whose names are unknown to the plaintiff” and were sought to be brought in by the publication of the summons in the ordinary form, under section 135 of the Code. We think that section is not applicable to “ unknown owners ” in suits for partition. There is no express provision in that section authorizing publication against such persons, and the requirement that it must appear by affidavit that the persons cannot after due diligence be found in the State seems to be inconsistent with the idea that they are unknown. The amendment of 1860 to that section provided expressly for publication against unknown owners in actions for the foreclosure of mortgages, which would have been unnecessary if the section before provided for such publication. Although not conclusive this amendment furnishes evidence of legislative construction, and of the general understanding upon the subject. There was no necessity for such a provision in partition suits because section 448 of the Code expressly made the provisions of the Bevised Statutes relating thereto applicable so far as the same could be applied to the subject-matter of the action without regard to form, and the Bevised Statutes as amended in 1831 and again in 1842 provided for the mode of bringing in unknown owners in partition suits. This means that those provisions shall be applicable as far as practicable without regard to the changed form of the action. The act of 1842 required that the notice to be published should be substantially in the form therein prescribed, and there is no difficulty in adapting the substance of that notice to an action commenced under the Code. The notice requires the court to be named — the title — the nature of the action, whether in partition or otherwise, and a notice requiring an appearance within a specified time, or judgment will be taken by default. This is the substance of the notice, although the terms used are appropriate to the old practice instead of the Code practice; and it is the substance which section 448 applies, without regard to form.” I think, therefore, that the provisions of the statute of 1842 are still available to bring in unknown owners,” in actions under the Code in partition, and that section 135 of the Oode is not applicable.

It is claimed that section 175, in connection with section 135, supplies the deficiency. I think not. That section has no application to what are designated in the statutes as “ unknown owners.” On the contrary,, it implies that* the persons to be designated by fictitious names are known. It implies certainty of number and identity, except as to name; and it allows fictitious names to be used until the real names are ascertained, and evidently contemplates that the real names will be ascertained and substituted for the fictitious. It has been suggested that this section has no application, unless there is a personal service, but it is unnecessary to determine this question. It is sufficient for this case that it is not applicable to “ unknown owners.” It was urged upon the argument that there was a substantial compliance with the act of 1842 in this case by the notice which was published. There is considerable force in this position, but, I think, it must be held untenable. The act of 1842 requires the notice to specify the nature of the action, whether in partition or otherwise ; and this is substantial. By looking at the notice published, with a knowledge of the statutes on the subject, no one would understand that the action was to partition lands, and those interested might, therefore, refrain from giving it attention. The rights of property should not be cut off without a strict compliance with all the substantial provisions of law.

The order must be affirmed, with costs.

All concur.

Order affirmed.  