Lewis v. Smith , 11 Barb. 152 ( 1851 )

By the Court,

Taylor, J.

The question whether the provision made by the will of Lewis for the complainant, was in lieu of dower, was disposed of by the judge at the special term, and as no appeal was taken from that part of his decree, it is unnecessary for me to take further notice of it.

The bill filed by Pumpelly and others, for foreclosure, made the complainant a party defendant, and she was stated in that bill to have been the wife of Lewis, the mortgagor. The complainant was made a defendant, as executrix and devisee under the last will and testament of George Lewis, her husband and the mortgagor, and after setting forth in the charging part of that bill her interest as such executrix and devisee, it goes on to state that Brasilia Lewis and others named, have, or claim to have, some interest in the mortgaged premises, as subsequent purchasers, incumbrancers or otherwise, without specifying any particular interest or claim. But in the whole bill there is no description of, or reference to, the interest or claim of the widow for dower. She was not made a party as doweress, but as devisee, and in the character of an executrix alone. I can not think that the paramount title of the widow can be cut off by such a proceeding, although she be nominally a party to the suit.

She is called upon to answer the matters set forth in the bill: she examines that bill, and finds that matters are particularly specified, in which she has an interest as executrix and devisee, but to which she has no answer to make. Relying upon the fact that the pleading which she is summoned to answer makes no mention of an interest, held in her own individual right as the widow of the mortgagor, I think she was not bound by any rule of equity pleading to answer those matters; but was justified in the belief that those interests of hers were not designed by the complainants to be brought into litigation in that suit, and this view of the case is fully sustained by that of Bank of Orleans v. Flagg, (3 Barb. Ch. Rep. 318,) where the chancellor says, “ The bill in this cause was not properly framed. To enable them to litigate that question, instead of alledging falsely, that he had or claimed some interest in the premises, which had accrued subsequently to their mortgage, the bill should have stated that he claimed an interest, under a contract to purchase, prior to the mortgageor in other words, the bill should state the facts truly as they existed, so far at least as not to mislead the opposite party as to the object of the suit. This was purely a bill of foreclosure. Now it is a rule of equity, that no facts are properly in issue, unless charged in the bill; nor can relief be granted for matters not chargeable, for the court pronounces its decree secundum allegata et probata, (Story’s Eq. Pl. 259; 3 Wood. § 55,) and they can pronounce upon nothing else. I am of opinion, that under this bill there was nothing alledged which called upon the complainant to interpose an answer setting forth her inchoate right of dower. (Elliott v. Pell, 1 Paige, 269.) The case of McGown, et al. v. Yerks et al. (6 John. Ch. 450,) did not, as I conceive, settle any question raised in this case. The purport of that decision was that all parties interested should be brought in, as a duty of the complainant, to the end that the sale may not he deceptive to the purchaser, but not that the rights of the prior incumbrance would be otherwise affected. In reference to the question now before us, the chancellor says, where the land is to be sold, it would be essential to all concerned, and necessary to prevent a sacrifice, that the value and extent of the prior incumbrance, made known by the pleadings, should be ascertained and declared. In this case no such incumbrance was made known by the pleadings, and if the omission was erroneous or improper, that was the fault of the complainants in the foreclosure suit. In the case of Jackson v. Hoffman, (9 Cowen, 271,) the remark of Sutherland, J. that the defendant, and those from whom he derived title, having been parties to the suit in chancery instituted for the foreclosure of the mortgage, were estopped from denying the title of any bona fide purchaser at the sale, under the decree of foreclosure, was perfectly correct. The defendants were not only parties to the suit, but were subsequent purchasers, and made parties as such. It would certainly then be improper for them to set up in an action of ejectment following a sale on the foreclosure suit, an equitable defense which might have been made in that former suit.

The doctrine as laid down in Le Guen v. Gouverneur and Kemble, (1 John. Ca. 436,) that the judgment or decree of a court possessing competent jurisdiction, shall be final as to the subject matter thereby determined, is well settled, though the correctness of the other branch of the opinion of Badcliffe, J. that it is not only final as to the matter actually determined, but as to every other matter which they neglect to litigate in the cause, and which the court might have decided, has with good reason been questioned. But admitting it to be correct, I still think it does not reach the case at bar, inasmuch as the court could not have decided any matters not brought before them, by proper charges in the bill. (Elliott v. Pell, 1 Paige, 269.) It is well settled that the mortgagee can not, in filing his bill for a foreclosure, make one claiming a paramount title adversely to that of the mortgagor, and prior to the mortgage, a defendant in the suit, for the purpose of contesting the validity of such adverse claim of title. (Eagle Fire Co. v. Lent, 6 Paige, 637.) It is a general rule that the proper parties in a foreclosure suit are the parties to the mortgage and subsequent incumbrancers, either under the mortgagor or mortgagee, and when prior incumbrancers are made parties, it is only that the amount of such incumbrances may be ascertained, to be paid out of the proceeds of the sale, or that the premises may be sold subject to such known incumbrance. (Holcomb v. Holcomb, et al. 2 Barb. S. C. R. 21.)

[Monroe General Term, June 3, 1851.

Selden, Johnson and Taylor Justices.]

The right of dower was certainly a claim paramount to those of the complainants, either under the mortgage or the contracts, and they therefore could not call upon the widow to litigate that right with them in the foreclosure suit. Many cases show that such a suit could not be sustained. (2 Schoales & Lefroy, 199. Hallett v. Hallett, 2 Paige, 18. Banks v. Walker, 3 Barb. Ch. Rep. 408. 4 Sandf. 209.)

I do not see how the statute (2 R. S. 192, § 158,) cuts off the claim of dower. I am not able to perceive how the widow was individually a party to the foreclosure suit, so that a decree should abrogate her rights. She was not called into court in such capacity, but solely as executrix and devisee, and therefore was not a party to the suit, as litigant, on account of her dower. And besides, it would be an act of injustice which the statute never contemplated, for a decree in a chancery suit to cut off and abrogate paramount rights of parties, when those rights had not been subjected to litigation by the form or substance of the pleadings in the case. The bill in the foreclosure suit was so framed as to lead no one to suppose that the dower right of the widow would be called in question. I think the bar against the parties in the suit mentioned in the statute, refers, first, only to the proper parties — namely, mortgagors and mortgagees, and subsequent incumbrancers, and to such rights as have been properly the subject of litigation in the foreclosure suit.

I think the judgment of the court below must be reversed.