Equitable Life Assurance Society of the United States v. Laird

The Chancellor. The mortgaged premises in this suit were sold by the sheriff of the county of Monmouth under the fieri fiaoias issued for that purpose. The petitioners became the purchasers at the sale. They paid the amount of deposit required by the conditions. They now apply for an order that the deposit be returned to them, on the ground that since — 323 — the sale they have discovered that the title to the mortgaged premises is defective, because, as they allege, the interest of Julia Laird, widow of the owner of the equity of redemption, was not foreclosed in the suit; and because the proceedings in the cause were irregular. They allege that Julia Laird way at the lime of the filing of the bill, a resident of this stale, and ought, therefore, to have been served with process in the suit. The evidence satisfies me that she was not, at the time of the filing of the bill in this cause, or at the time of issuing the subpoena to answer, addressed to her, or at the time of making the order for publication, a resident of this state. But if she were, the order was warranted by the affidavit which was before this court when it was made. The statute (Nix. Dig. 109, § 22,) directs, that “ in ease of a bill filed against any defendant, against whom a subpmna or other process to appear shall issue, and such defendant shall not cause his appearance to be entered in such suit as according to the rules of said court the same ought to be entered, in case such process has been duly served, and it shall be made to appear to the satisfaction of the Chancellor that such defendant is out of the state, or cannot, upon due inquiry, be found therein, or that ho conceals himself within this state, every such defendant shall be deemed and taken to be an absent defendant; and thereupon the Chancellor may, by order, direct such absent defendant to appear, plead, answer, or demur to the complainant’s hill at a certain day therein to be named, not less than two nor more than six months from the date of such order, which order shall, within twenty days thereafter, be served personally on such defendant by a delivery of a copy thereof to him, or he published in one or more of the public newspapers printed in this state, and designated in such order, for six weeks successively, at least once in each week, and which order shall also be published or served in any other manner that the Chancellor, in the same, may see proper to direct.” The statute applies as well to persons who may be domi — 324 — ciled in this state, as to those whose domicil is beyond its borders. The petitioners further insist, that if Mrs. Laird was properly regarded by the court as an “ absent ” defendant, notice was not given to her according to the requirements of the statute. It appears that the order for publication directed that the notice be, within twenty days from its date, served on Mrs. Laird, either by actual service upon her personally, or by leaving the same at her residence, with a person of the family; or that in default of such service, the notice be published within said twenty days in the Long Branch Times, a newspaper printed at Long Branch, in this state, and continued therein for six weeks successively, at least once in every week, and that a copy thereof be also mailed within the same time to her, directed to her post office address, if the same could be ascertained. The order in all respects was complied with, except that the newspaper in which the notice was published, AA'as one called The Long Branch NeAvs. It AA'as however, the only neAA'spaper AA'hich, at the date of the order, was printed or published at Long Branch. The designation, ‘Long Branch Times/ Avas unquestionably a mere misnomer. I have no doubt that the order is amendable in this respect. There is not, there cannot be any question but that the Long Branch News AA'as the paper intended by the court in making-the order for publication. The misprision in drarving the order, may be corrected. In Jeffreys’ Heirs v. Callis, 4 Dana (Ky.) 466, in error, the defendant had obtained a decree against the unknown heirs of Jeffreys, upon a certificate of publication, by a person as editor of the newspaper in AA'hich the publication AA'as made. But editors Avere not by laAV authorized to certify such publications; the certificate of the printer of the newspaper Avas required. The court had permitted the person Avho had so certified as editor, to amend the certificate three years afterwards. The order alloAving the amendment, Avas affirmed in the appellate court. It appears by the testimony, that Mrs. Laird was present at the’Sale of the mortgaged premises by the sheriff, and — 325 — neither gave notice of any claim upon the property, nor protested against the proceedings under which it was sold. She did not appear, plead, demur, or answer in the suit. The complainants amended their hill on the 22d day of March, 1873. The time for appearance fixed in the order for publication, was the 12th day of April, 1873. Mrs. Laird took no copy of the bill from the office. It is objected by the purchasers, that a decree based on the bill as amended, cannot bind her. The fifty-second rule of this court, provides that the complainant may amend his bill of course, and without motion or rule, at any time before answer, plea or demurrer filed, and without cost. The fifty-fifth rule provides that “ in all cases where the defendant’s appearance has been entered, and he hath procured a copy of the bill, and the complainant is allowed to amend without costs, he shall furnish the defendant with a certified copy of the amended bill, or amend the defendant’s copy gratis.” As before stated, Mrs. Laird did not appear in the suit. Under the rule, the complainant was at liberty to amend his bill, and no new subpoena to her to answer, was necessary. In Maddock’s Chancery, p. 369, it is laid down, that an amended bill is considered as an original bill, but new subpoenas are not necessary. In Daniell’s Ch. Pr., p. 402, (4th ed.) it is said, in reference to amendments of the character of those made in this case: “But although it is the practice to call a bill thus altered an amended bill, the amendment is in fact esteemed but as a continuation of the original bill, and as forming part of it, for both the original and amended bill constitute but one record ; so much so, that where an original bill is fully answered, and amendments arc afterwards made, to which the defendant does not answer, the whole record may be taken pro confesso generally, and an order to take the bill pro confesso as to the amendments only, will be irregular.” In Smith’s Ch. Pr. 250, it is said: A bill may be amended without costs, if the order to amend is obtained before the defendants have appeared; or if some of the defendants — 326 — have appeared, and others have not, it may be amended as to those who have not appeared, and as to those who have appeared, on the terms of amending their office copies. In pages 254 and 255 of the same work, it is laid down that all those defendants who have answered the original bill, are, if required to answer the amendments, served with subpoena, but it is not necessary to serve those defendants who by the order are not required to answer, nor those defendants who have appeared but not filed answers to the original bill, with subpoenas to answer the amended bill. In Stanley v. Bond, 6 Beav. 420, it was held that where a bill is amended before answer, it is not necessary to serve a subpoena to answer the amendments. In that case application was made to discharge an attachment, which had been issued against the defendant for not having answered. On his behalf it was urged that the bill ought to be regarded as an original bill, filed at the time of filing the amendments, and since, should it be so regarded, the time for answering would not yet have expired, the attachment was prematurely issued. The court, however, had no doubt of the regularity of the attachment, and refused the motion, with costs. Mrs. Laird.is not before the court complaining of any violation or disregard of her rights, whether through want of notice or irregularity of proceeding. The court adjudged that she had been duly notified according to law, and in pursuance of that adjudication, it decreed that she should stand absolutely debarred and foreclosed of all equity of redemption in the premises when sold under the decree. But it is further objected, that after the mortgaged premises had been advertised for sale under the execution, an order of this court was made, directing the sheriff to sell the property in a different manner from that in which it was directed to be sold by the decree and execution. "Whether the property be ordered to be sold in parcels or all together, the notice of sale is the same. The only question that can arise, is as to the propriety of the practice. To have sold the property according to the directions of the decree and execution, would — 327 — have been to sacrifice it. It was discovered that so to sell it would be to dispose of the hotel building in two parts. The encumbrancers, other than the complainants, therefore, and the personal representative of Samuel Laird, deceased, who, at the lime of his death, was the owner of the equity of redemption, to avoid the difficulty, united in an agreement that an order should be entered, directing that the sale be made in other parcels than those specified in the decree and execution, and that all the proceeds of sale, after satisfying the first mortgage, (the complainant’s,) which was on the whole property, and which, it may be remarked, was executed by Samuel Laird, prior to his marriage with the defendant, Julia Laird, be brought into court and disposed of according to the equities between the parties. The complainants made no objection to the proposed order, and the order was made, in effect amending the decree and execution in these respects. It has been the practice of this court to make sneli amendments in that manner, in the interest of all parties, thus to provide for the sale of the mortgaged premises in the most advantageous way. The subject is thoroughly under the control of the court. This amendment of the decree and execution, could not in any way injuriously affect the title acquired by the purchasers at the sheriff’s sale. The petitions of the purchasers will he dismissed, but without costs, and the order for publication will be amended.