BUTLER a. TOMLINSON

BUTLER a. TOMLINSON. Supreme Court, First District; General Term, Nov., 1862. •Lis Pekdens.—Oonstbuottve Notice. Prior to the amendment of section 132 of the Code of 1862 (Laws of 1862, 860, oh. 460, § 6), the grantee of the equity of redemption was not charged with notice of the commencement of an action of foreclosure, although a lis pendan had been filed, unless the summons had been served on his grantor before the conveyance. Appeal from an order denying a motion to compel the purchaser at foreclosure-sale to complete his purchase. This action was brought by Charles Butler, trustee, against Theodore E. Tomlinson, Peter A. Youngblood, and others, to foreclose a mortgage. It appeared on the motion below, from the decision upon which this appeal was taken, that the complaint and the notice of Us pendens were filed on the 23d of January, 1862, Peter A. Youngblood, who then owned the legal title of record, being mentioned in both as a defendant. On the 24th of January the summons was served on the defendant Tomlinson, and on the 25th on other defendants. On the 29th of January an order was made requiring service of the summons to be made on the defendant Youngblood, as a non-resident residing in New Jersey, by publication for six weeks. The purchaser’s sole objection to the title under the foreclosure was, that before such service on Youngblood by publication was complete, a conveyance of the legal title in the premises from him to one who had not been made a party to the suit was duly recorded. Such transfer was in fact recorded on the first day of February, 1862, after the filing of the complaint arid notice of lis pendens, after the actual service of summons' on several parties, and after the order of publication. It was agreed that the conveyance of the legal title before mentioned was proved on the 24th of January, the record so showing. Joseph H. Choate, for the appellant. I. By section 132 of the Code, the notice of Us pendens is, from the time it is filed, notice to an incumbrancer or purchaser of the property affected by it. By the amendment of 1851, “ the time of filing the complaint” is substituted for “ the commencement of the action,” as the period from which the Us pendens is to be filed with effect. II. The case of the Farmers’ Loan & Trust Co. a. Dickson (9 Abbotts’ Pr., 61; S. C., 17 How. Pr., 477), stands alone in the anomalous construction put upon this section. It overlooks and disregards the plain provision that the Us pendens “from the time of filing shall be notice.” The Code makes the Us pendens notice from the same moment as to all the world, but the decision would bring it into operation at as many different times as there are separate defendants. The whole object of the provision of the Code was to establish as to all parties and to all the world a uniform time' at which the property should be considered as in the hands of the court, and no longer liable to be-affected by the acts, of any persons, but subject solely to the action of the court. The names of the parties are specially required to be inserted in the notice of Us pendens, and such an insertion and their introduction into the complaint does for all the purposes of this section make them parties. 1 III. If the notice of Us pendens is to have effect not from the time it and the complaint are filed, as the Code prescribes, but only from the service of the summons upon all the defendants, then an effectual foreclosure against unwilling or treacherous defendants is impossible. The Legislature meant only to provide a way which would secure the rights of the plaintiff without prejudice to those of innocent purchasers, by making the filing of the Us pendens with the complaint notice to them all, thus affording ample and complete security to everybody. IY. The present case differs from that of the Farmers’ Loan & Trust Co. a. Dickson in an essential particular. There, at the time when the deed was recorded, the action seems not to have been commenced against any defendant, although the notice of Us pendens was filed more than three weeks before. Where the action is thus really commenced by the actual service of summons, the suggestion that a notice that an action is pending cannot have effect when the action is not pending, can have no application. V. The Legislature of 1862 have made an amendment to this section, not altering its language, but simply declaring its meaning. We do not claim any retroactive force for this amendment, but merely that the court should give heed to it as a legislative construction of the section, consistent with its language and with the universal practice established under it. (Laws of 1862, 846, ch. 460.) Joseph N. Balestier, for the respondent, cited 17 How. Pr., 477. [MAJORITY — By the Court.—Leonard, J.] By the Court.—Leonard, J. J.The court is deemed to have acquired jurisdiction, and to have the control of all subsequent proceedings in a civil action, only from the time of the service of the summons. (Code, § 139.) Where the service is by publication, the summons is not deemed to be complete until the. expiration of the time prescribed for publication. (Code, § 137.) Notice of the pendency of an action has no effect until the action is commenced. Notice cannot be given of a fact which does not exist. Hence, although the Code (§ 132) permits such a notice to be filed at the time of filing the complaint, it can only be effectual for the purpose intended from the time it becomes really a notice of the fact that an action has been commenced. Prior to the service of summons, the court have acquired no jurisdiction, and have no control over any proceedings in the action, except in cases where there has been a voluntary appearance. For these reasons the grantee of land is not charged with constructive notice of the commencement of an action.of foreclosure, although a Us pendens has been filed,, unless the summons has been served on his grantor before the conveyance of the land. This embarrassment in foreclosure cases has been cured by an act of the Legislature since this action was commenced, but it has no retroactive effect to cure the difficulty here. The order must be affirmed, with $10 costs of appeal. Ingraham, P. J., and Bernard, J., concurred.