
    Margaret Bowler, Appellant, v. Elizabeth Ennis and Others, Defendants. Philip Brandmeier, Purchaser, Respondent.
    
      Specific performance — service by publication on a defendant in a partition suit whose name does not appear in the summons as published—un'marlcetable title.
    
    The omission from a summons in a partition suit, published pursuant to an order of publication, of the name of a defendant on whom the summons was directed to be served by publication, and who did not appear in the action, constitutes a defect which will prevent the purchaser at the'sale from acquiring a marketable title, although in the printed notice declaring that the “foregoing summons is served upon you by publication,” accompanying the published summons, the name of such defendant appeared.
    Appeal hy the plaintiff, Margaret Bowler, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 19th day of July, 1899, denying her motion to compel one Philip Brandmeier, the purchaser herein, to complete a purchase of certain real estate from a referee appointed to sell the same.
    
      George Gru, for the appellant.
    
      Thomas E. Pilsworth, for the respondent.
   Woodward, J. :

The order appealed from should be affirmed, as it is no part of the duty of the courts to compel a purchaser to accept an unmercharitable title, and it is not clear that the referee in the present instance is prepared' to convey the property free from doubt upon this point. This action was brought for partition, and was prosecuted to interlocutory judgment, the premises being sold to Philip Brandmeier, who made a small payment at the time of the purchase, and who now refuses to complete the same, Upon the grounds that the ■ summons in the action, which was .ordered to ’ be served upon one John McCarthy by publication, did not, in the published summons, contain the name of the said McCarthy.; that in the notice accompanying the summons the name of John McCarthy appeared as John McCarty, and that the court never having acquired jurisdiction of the defendant, the referee is powerless to give an indefeasable title.

Without passing Upon the question of whether the error in spelling the name of McCarthy ivould have any bearing upon the matter if the name had thus appeared in the published summons, we think it is clear that where the summons is served by publication, and where the defendant does not appear, it is necessary to the jurisdiction of the court that the names of all'the defendants shall have a place .in the title to the action. The summons is addressed “ To the above-named Defendants,” and the defendant is not called upon to read the accompanying notice to discover that he is summoned, nor would it be notice to him. The mere fact that the notice attached to the summons and addressed to John McCarty, declares' that the “foregoing summons is served upon you by publication,” etc., does not make it appear to the defendant McCarthy that he is summoned to appear and answer, for the summons itself is addressed to other persons, and he has the same right to assume that an error has been made in the notice that he would have to suppose that his name has.been omitted from the title of the action. The service of a summons.by publication upon a person without the jurisdiction of the court is in derogation of the common-law rights of the individual, and the method pointed out by the statute must be strictly followed, unless the defendant shall have appeared in the action, in order to give, the court jurisdiction. (Ricketson v. Bichardson, 26 Cal. 149 ; cited with approval in Gabpin v. Page, 18 Wall. 350,. 369.) Section '440. of the Code of Civil Procedure directs that in cases of this character, the order of the court “ must direct that service of the summons, upon the defendant named or described in the order, be made by publication thereof in two newspapers,” etc. Obviously, if the summons is'to be served by publication, it must be the same summons which is filed in pursuance of the provisions of section 442.of the Code of Civil Procedure, and the omission of the name of one of the defendants who is thus to be served with the summons by publication, in the published copy of the summons, is not a compliance with this provision..

In the recent case of Stuyvesant v. Weil (41 App. Div. 551), in the foreclosure of a mortgage, a summons was served personally upon Mary J. Stockton, whose name appeared in the summons as Emma J. Stockton, and the defendant not appearing the name was afterward corrected by an ex parte order made upon an affidavit. In an action to compel "the specific performance of a contract to convey a title to the property, of to refund the amount already paid, the court held that the title derived under the judgment was not free from reasonable doubt, nor was it marketable. In the course of the opinion handed down by the court the rule was quoted with approval that “ When the record of a court of general jurisdiction discloses nothing in regard to the service of process or notice, and no evidence is given upon the subject, jurisdiction over the person will" be presumed, because the record itself imports sufficient proof of jurisdiction without disclosing the different steps by which such jurisdiction was acquired. When it affirmatively appears, however, that any essential step was omitted, the presumption in favor of jui’isdiction is destroyed and a presumption against jurisdiction at once arises.”

In the case at bar it affirmatively appears that the defendant McCarthy was never served with a true copy of the summons by publication; that his name was not among those to whom the summons was addressed, and we are of opinion that the referee is-not prepared to give such a merchantable title as Mr. Brandtneier had a right to demand, arid that the court below was justified in denying the motion to compel a completion of the purchase.

The order appealed from should be affirmed, with costs.

All concurred.

Order affirmed, with ten dollars costs and disbursements.  