Seitz v. Messerschmitt

Ingraham, J.:

The questions presented on this appeal are stated in the opinion of Mr. Justice Laughlin. There is one ground upon which I do not agree with him.

The conveyance of the referee on the sale 'under the judgment in the foreclosure action is the foundation of the title; in that action no defendant, as representing the - heirs at law of the mortgagor, was made a party, it being alleged that the mortgagor died owning the equity of redemption in the property without heirs at law, which it may be assumed meant without heirs at law capable of • inheriting real property in this State. The title is sought to be«sustained upon that theory. If, however, the owner of the equity of redemption died without heirs at law capable of inheriting the title to his- rfeal property, it escheated to the State, who, therefore,, became the owner of the proqierty in question, subject to the mortgage % :

T agree with Mr. Justice Laughliñ that the facts would justify a finding that the mortgagor and owner of the equity, of redemption died without heirs at law capable of inheriting, and that, therefore, at his death the title to the property vested by escheat in the State. The question, then, is whether the title of the State was affected by . the sale Under the judgment of foreclosure. The People of the State were not a party to the foreclosure action, and it always has been a settled rule of law that a sovereign State could not be sued in its own courts without its consent. This questioh is discussed by Mr. Justice: Mitchell in Kiersted v. People (1 Abb. Pr. 385), and the rule, as I understand it, is there stated. He quotes from Brohsoñ, J., 'in Delafield v. State of Illinois (2 Hill, 159), that “ where a State is made defendant the State courts cannot exercise jurisdiction.” It seems to me clear that if the courts of the State could acquire no - jurisdiction as against the State to affect its title to real property, making the Attorney-General of the State a party defendant in actions affecting real property, could give the coui;t no jurisdiction to sell the property of the State under a, judgment in that action. Hpon the assumption that the property escheated to the State, the State became the owner of the equity .of redemption, and to sustain the title.offered to the purchaser we must hold that the deed by the referee under the judgment of foreclosure conveyed the equity of redemption which had become vested in the State. If- the court had no jurisdiction over the State, in whom the title to the property had vested, it certainly could not sell the interest of the State in the property under a judgment in an action to- -which the State was not a party (2 R. S. 192, § 158; 3 R. S. [5th ed.] 273, § 88 [158]; 3 R. S. [6th ed.] 199, § 102 [158] ; revised in Code'Oiv. Proc. § 1632); and as the Statute of Limitations has not run against the State, I do not see hoW we can say that the interest of the State has been divested by the sale under this judgment.

The cases in which courts of equity have allowed a State or the Attorney-General of a State to he made a party defendant have been cases in which there had been a lien upon real or personal property, which apparently was owned by the State and the Attorney-General was made a party, not for the purpose of affecting the rights of the State, but to notify him of the existence of the controversy, so as to give him an opportunity to appear and protect the interests of the State if he so desired. But in no case that I can find has it ever been held that where real property had vested in a State, making either the State or the Attorney-General a party to an-action affecting such real property without legislative sanction, could divest the State of the property that had vested in it. While the Attorney-General was the legal office!1 of the State, he had no power to divest the State of real property, that power resting solely with the Legislature. Making him a party did not bind him to interpose on behalf of the State, and upon principle I cannot see how it can be said that making him a party to the action and his appearance in the action mould vest the court with jurisdiction to sell the property of the State so as to divest it of title,

I do not think we can declare in this action, to which the State is not a party, that the title of the State to this property has been divested by the sale under the foreclosure suit, and, therefore, I think the title is not marketable.

The order should, therefore, be affirmed, with ten dollars costs- and disbursements.

Clarke and Scott, JJ., concurred; Laüghlin, J.,- dissented.'