Foote v. Lathrop

By the Court, Marvin, J. The only interest which the petitioner had in the land mortgaged by her husband was an inchoate right of dower. She joined in the mortgage. Her husband is now dead, and she seeks to avoid the judgment on the ground that she was not served with process in the action to foreclose the mortgage, and that she did not authorize an appearance in the action. If the judgment, as to her, is void, the motion must be granted. [185] [Erie General Term, February 8, 1869. In Ferguson v. Smith, (2 John. Ch. 139,) Chancellor Kent said: “ The general rule is that the service of a subpoena against husband and wife, on the husband alone, is a good service on both; and the reason is, the husband and wife are one person in law, and the husband is bound to answer for both.” If the relief is sought out of the separate estate of the wife, service should be made upon her. In Leavitt v. Cruger and wife, (1 Paige, 421,) the bill was to foreclose a mortgage executed by the defendants. The husband, only, was served with process. He appeared and answered for himself only. The chancellor decided that the husband was bound to appear and answer jointly for himself and wife, unless he showed a sufficient excuse; that service of subpoena on the wife is only necessary when the proceeding is against her, in respect to her separate estate; in which case the husband was only a nominal party. The separate answer of the husband was ordered off the files of the court as irregular, and it was ordered that the husband enter a joint appearance for himself and wife, or that the bill be taken as confessed. The same doctrine is reiterated in Eckerson v. Vollmer, (11 How. Pr. 42.) The interest the wife had in the premises was an inchoate right of dower, and the court said “ such interest results from the marital relations, and does not belong to the wife as her separate estate.” The well settled practice seems to have been pursued in this case, and the order of the special term appealed from should be affirmed. Marvin, Daniels and Zamont, Justices.]