Leonard v. New York Bay Co.

The Vice-Chancellor. This application must be denied. The person claiming the interest sought to he protected, by opening the decree, is not a party to the suit. It was her own fault she was not made a party. Bhe first acquired an interest in the mortgaged premises by deed dated January 4,1855, over sixteen years before the commencement of the suit. It was not recorded until June 25, 1872, more than eight months after the final decree had been carried into effect. A second deed, not yet recorded, was made to her in August, 1861, more than nine years before the institution of the suit. By her own gross negligence she prevented the complainant from making her a party, and deprived herself of an opportunity of contesting the complainant’s claim. The statute expressly declares, that in consequence of the omission to give notice of her title by registry, before the commencement of the suit, she shall be bound by the. final decree, so far as the mortgaged premises are concerned, in the same manner as if she had been made a party and appeared. Rev. p. 118, § 78. If the unregistered title had come to the knowledge of the complainant during the pendency of the suit, no duty would thereby have been cast upon him to have had the owner made a party. Dinsmore v. Westcott, 10 C. E. Gr. 302. If the petitioner had appeared, it is obvious she would have been precluded from assailing the decree and sale on the ground now urged. Registry laws are laws of forfeiture as well as laws of protection. Losey v. Simpson, 3 Stock. 246. Having neglected to register her deeds before the commencement of the suit, by the plain letter of the statute her estate was cut out and transferred by the decree and sale under it. It is clear, the purchaser could not have successfully resisted the execution of his contract of purchase on the ground now set up to avoid his title. [195] Dinsmore v. Westcott, supra; Equitable Life Ins. Co. v. Laird, 9 C. E. Gr. 319; McCahill v. Equitable Life Ins. Co., 11 C. E. Gr. 531. In a case where the purchaser is free, from any imputation of fraud, the court ought not to destroy a title, on the application of a person not a party to the suit, which it would have compelled the purchaser to take. But I confess I am unable to understand upon what principle the petitioner can be permitted to urge an alleged failure in duty to the persons who were parties to the suit [as a reason] why relief should be extended to her. It must be admitted she was omitted as a party through her own fault. If she has been condemned unheard, it was because she made it impossible, by her own laches, for the complainant to give her an opportunity. She asks relief solely on the ground that the solicitor of the complainant did not, in making inquiry for the residence and post-office address of certain absent defendants, explore all possible sources of information open to him. But suppose it is admitted his efforts fell short of “ diligent and careful inquiry,” what right has the petitioner to complain ? Hot being a party to the suit, the complainant owed her no duty. A failure in duty to a party to the suit, but who makes no complaint, the case being free from fraud, does not give a stranger a right to assail the decree. However, I think it is clear, upon the proofs, the solicitor of the complainant performed his whole duty. His inquiries were directed to every source of information which would have been likely to occur to the most careful person. I should feel I was trifling with important rights, and attempting to establish a very dangerous rule, to hold that a judicial sale must be set aside because the solicitor of the complainant in a foreclosure suit omitted to send notice of the suit to an absent defendant, addressed to him at a place designated as his residence in a deed made fifteen or twenty years before the institution of the suit, without other information that he still resided there. The order to show cause must be discharged, with costs.