Meigs v. Willis

Larrkmore, J.

— The only break that appeared in Thompson’-'s title was the absence of a deed of the premises from I)/udley Selden, the admitted fountain head of title, to Andrew /McGown. But a recital of the existence of that deed is contained in the deed given by McGown to Patterson, March 1, 1828, and this, it is claimed, as to an ancient document, was sufficient notice within the rulings in Carver agt. Jackson (4 Peters, 83). Ho other proof was offered of the existence and loss of the deed, and it is at least a matter of serious doubt whether Willis, who does not claim under Patterson, and who is a stranger to his record title, is bound by it.

This question, however, is unimportant, in view of the ultimate disposition to be made of this case. The plaintiffs, as mortgagees, cannot maintain ejectment (Code Civil Pro., sec. 1498; Holcomb agt. Holcomb, 2 Barb. S. C., 20). As between the defendants Willis and Thompson, the right of possession to the premises cannot be settled in this action, but must be tried by a jury. Even if this objection did not exist, the defendant Willis has no right to insist upon a final disposition of his claim, for it does not appear that a copy of his answer has been served upon the attorney for the defendant Thompson, in- pursuance of section 521 of the Code of Civil Procedure.

Judgment is therefore ordered that as to the defendant Thompson the complaint be dismissed, and that as against the other defendants the plaintiffs are entitled to a foreclosure and sale of the mortgaged premises.