Green v. Mussey

Spencer, J. This action was begun in December, 1894, to foreclose a real estate mortgage. John Carnduff, the owner in possession, was named as one of the defendants. Judgment was entered on default, and the property sold to the defendant Abram Mussey, who received the usual conveyance, but did not enter into possession. Thereafter in September, 1895, this court, upon the application of John Carnduff, made an order setting aside the judgment and sale as to him, on the ground that the service of the summons and notice of the object of the action had, by mistake, not been made upon him hut upon his son John A. Carnduff, who resided with him. Shortly after the making of such order, John Carnduff died having conveyed his interest in the property to his son John A; A motion is now made for and order permitting the plaintiff to make, file, and serve a supplemental summons and complaint and to bring in said John A. Camduff as party ■defendant. Camduff objects on the grounds: First. That the action having proceeded to judgment and sale, this court has no power to bring in a person whose interest has since been acquired; Second. That [289] plaintiff’s remedy is by strict foreclosure; Third. That plaintiff •has been guilty of laches. None of these objections strike me as valid. Irrespective of the provisions contained in sections 544 and 723 of the Code of Civil Procedure, this court by virtue of its common law powers never loses jurisdiction over its judgments, and should always exercise control thereof in-furtherance of justice. The failure to accomplish a valid foreclosure in this action is due in part to the conduct of John A. Camduff, the person now sought to be made a party defendant. His retention of the summons and notice of the object of the action served upon him, by mistake, was inconsistent with good faith. He acquired title with knowledge of the mortgage, its ineffectual foreclosure, and the reasons' therefor. He certainly does not stand in a position to question the justice of this application. The plaintiff does not seek to introduce a new and substantive cause of action. He asks only to. continue the action against a new party who had no interest in the mortgaged property when, the action was begun, but who has since acquired an interest with knowledge of the plaintiff’s rights. The relief asked for comes well within the principles established in Prouty v. Lake Shore & Mich. S. R. R. Co., 85 N. Y. 272. In regard to the contention that strict foreclosure should be resorted to, it is sufficient to say that strict foreclosure is simply a form of judgment and may as well be had in this action as in another, although it is not recognized by our system of practice under the Code. Code Civ. Pro., § 1626. It has generally been regarded as a severe fornf of judgment against persons standing in such relation to the mortgaged premises as that occupied by the party here who is asking to have it applied. Relief should not be denied because of laches as it does not appear that John -A. Camduff or his grantor has been injured by the delay. They have retained possession of the premises. Let an order be made permitting the plaintiff, within twenty days after the entry of such order, to make, file, and serve a supplemental summons and complaint, bringing in John A. Cam-duff as a party defendant and continuing such action as against him; and alleging such material facts as have occurred since the making of the original complaint as counsel may advise, subject [290] to "the right of said John A. Camduff to answer and defend in the same way and manner as if no action or proceeding had theretofore been taken for the foreclosure of such mortgage. No costs. Ordered accordingly.