Fuller v. Scribner , 23 N.Y. Sup. Ct. 130 ( 1878 )

BabNaed, P. J.:

The question whether a judgment-creditor was an incumbrancer, within the meaning of section 132 of the Code, was not presented by the facts of the case in Rodger v. Bonner (45 N. Y., 379). In that case a levy had been made by attachment upon certain lands. Before judgment was obtained in the attachment suit another creditor recovered judgment, and the Court of Appeals decided that the levy took precedence of the judgment recovered after the levy; that the levy created a lien, and that the judgment was subject to all prior liens, whether the creditor knew of the lien or not. The case is no authority for holding that when a foreclosure suit is commenced, and when the notice of lis pendens is duly filed, and the summons partly served on all the parties who wore proper at the date of the filing of the notice of Us pen-dens, a judgment subsequently obtained is not cut off by the decree of foreclosure. Such a doctrine is opposed to the general understanding and practice of the profession. It cannot be sustained by authority. A judgment in rem (a foreclosure action is virtually so) binds the parties litigant and all the others, if the suit was commenced against the proper parties. (Cleveland v. Boerum, 24 N. Y., 613.) It binds all parties and all who claim under them “by any means.” (Cleveland v. Boerum, 27 Barb., 252.) Notice of pendency is designed “ to carry out the well-known legal maxim pendente lite nihil innoventur.” (Lamont v. Cheshire, 65 N. Y., 30.) Judgment-creditors, by judgments obtained after filing notice of lis pendens in foreclosure suits, could not be made parties at their own request. (People’s Bank v. Hamilton Manuf. Co., 10 Paige, 481.) An incumbrancer by judgment pendente lite need not be made a party. (Cook v. Mancius, 5 Johns. Chy., 89; Bishop of Winchester v. Paine, 11 Vesey, 194.) Unless a judgment-creditor, after notice of lis pendens filed, is cut oil' by the decree, a foreclosure action would be interminable, or it could be made so by the confession or recovery of judgments against the owner of the equity of redemption. Many titles would be unsettled.

The order should be reversed, with costs and disbursements, and an order granted that the purchaser take the title.

Gilbbkt, J., concurred; DyiimáN, J., not sitting.

Order reversed, with costs and disbursements, and order granted that purchaser take title.