Andrew S. Wheeler, Respondent, v. Patrick Scully et al., Defendants, Alexander A. Cabre, Purchaser, Appellant

Andrew S. Wheeler, Respondent, v. Patrick Scully et al., Defendants, Alexander A. Cabre, Purchaser, Appellant. The service of summons by publication in an action for foreclosure under the provisions of subdivision 6 of section 135 of the Code, which provides for service upon unknown parties having an interest in the mortgaged premises, is valid and binding, although, it appears that the unknown party is an infant. (Submitted June 11, 1872; decided November 12, 1872.) Appeal from order of the General Term of the Supreme Court in the second judicial district, affirming an order of Special Term directing appellant, the purchaser upon a mortgaged sale herein, to complete the purchase, or in case of his refusal directing a re-sale, holding him liable for any deficiency. This was an action for the foreclosure of a mortgage executed by defendant, Patrick Scully. Shortly after making the mortgage, and in 1853, the mortgagor left the State and has not since been heard from. Service of the summons was made by publication under subdivision 6 of section 135 of the Code, providing for service upon unknown parties having an interest. Judgment was perfected, and upon the sale the premises were bid off by Cabré, the appellant. He refused to take title and complete the purchase upon the ground that from the length of time which had elapsed it was to be presumed that the mortgagor was dead; that it was as much to be presumed that his heirs-at-law were infants as that they were adults; and if infants the judgment did not bar them, as the service of summons was not sufficient as against infants. Whereupon motion was made to compel him to complete the purchase. Held, that if it be conceded that the presumption was that the mortgagor was dead (as to which the court expressed doubts), and if the unknown heirs were infants, they were bound by the service, as subdivision 6 of section 135 made no exception in case the unknown defendants were infants. But if otherwise, there was no presumption that they were infants; and this was for the puachaser to show, in order to justify his refusal. 8. W. Games for the appellant. A. H. and W. E. Osburn for the respondent. [MAJORITY — Folgee, J.,] Folgee, J., reads opinion for affirmance. All concur. Judgment affirmed.