In Kittle v. Van Dyck, 1 Sandf. Ch. 76–78, The inchoate dower right of the wife of the vice-chancellor, citing Hobart v. Abbot, 2 defendant in a suit to foreclose a mort- P. Wms. 643, and Norrish v. Marshall, 5 gage given by his grantor, where neither she nor Madd. 475, held that a wife, who had not jointhe grantor is served or appears as defendant, the ed in a purchase money mortgage, takes her grantor being simply named in the summons, is dower in the premises subject to the mortgage, not cut off by the judgment of foreclosure under and is an interested and consequently a necesCode Proc., § 132, barring parties who claim under unrecorded deeds from a defendant in fore- sary party to the foreclosure suit. See also closure, although the conveyance was not record-Taggart v. Rogers, 49 Hun, 265; Walton v. ed, or known to the plaintiff. Her right is not Meeks, 41 Hun, 311. derived from her husband, but from the grantor.

(January 21, 1890.)

APPEAL by defendant from a judgment of the General Term of the Supreme Court, First Department, affirming a judgment of the New York Special Term in favor of plaintiffs in an action to recover back the purchase money paid for certain real estate. Affirmed.

The facts sufficiently appear in the opinion. Mr. William H. Arnoux, for appellant: Mrs. Sandford is a subsequent incumbrancer, and is barred by the proceedings subsequent to the filing of the lis pendens.

Old Code, § 132; Ostrom v. McCann, 21 How. Pr. 431; Fuller v. Scribner, 76 N. Y. 190, 16 Hun, 130.

It is objected that Clark was never served, but that makes no difference. A foreclosure is in its nature a proceeding in rem (Cleveland v. Boerum, 24 N. Y. 622); and hence, when it is begun as to one it is begun as to all, including Clark.

The title of the defendant to the premises in question was free from any and all defects, and was a good, valid and marketable title.

Moser v. Cochrane, 9 Cent. Rep. 427, 107 N. Y. 35; Schermerhorn v. Niblo, 2 Bosw. 161; M. E. Church Home v. Thompson, 10 Cent. Rep. 508, 108 N. Y. 618.

Mr. M. A. Kursheedt, for respondents: Mrs. Sandford was not made a party to the action, and, as she holds an inchoate right of dower, can now redeem from the mortgage. Wheeler v. Morris, 2 Bosw. 524; Mills v. Van Voorhies, 20 N. Y. 412.

This right is a real and existing interest, and as much entitled to protection as the vested right of a widow, and neither can be impaired by any judicial proceeding to which the wife or widow is not made a party. A wife as much as a widow is an absolutely necessary party to an action in order to produce such a title as a purchaser will be compelled to accept.

Wiltsie, Mortg. Foreclosure, 100, § 44; Mer

NOTE.-Dower; inchoate right. The right of dower, unlike an estate given by statute to the widow, confers no seisin until it is assigned to her, although actually in possession by acquiescence of the heirs and devisees. McMahon v. Gray (Mass.) 5 L. R. A. 748.

Procedure in 1858, it had been settled in this State, by numerous decisions, that a subsequent purchaser was not bound by a lis pendens, un

Previous to the amendment of the Code of

til the action was properly commenced against his grantor, by the service of process, either personally or by publication.

Hayden v. Bucklin, 9 Paige, 513; Butler v. Tomlinson, 38 Barb. 641.

Since then no case can be found where a notice of lis pendens has been held to affect a purchaser from a party named as a defendant. in the summons, but never served with process.

See Fuller v. Scribner, 76 N. Y. 190; Lamont v. Cheshire, 65 N. Y. 30.

The entry of a judgment against a defendant not served with process, and who has not appeared, is a void act, so far as he is concerned. Powell v. Finch, 5 Duer, 666.

A void judgment is, in legal effect, no judgment, and all claims flowing out of it are void. Freeman, Judgments, § 117.

Bradley, J., delivered the opinion of the court:

The purpose of this action was to recover back the purchase money paid by the plaintiffs to the defendant upon a contract, whereby the latter agreed to sell and convey to them certain land situated in the City of New York; and the alleged ground of the claim is that the defendant was unable to convey to the plaintiffs such title as they were entitled to under the contract. They recovered. The title which the defendant claims to have came through that taken by one Rowe from Catharine A. Ferris, who had the title on the 1st day of December, 1870, when she made a conveyance to Rowe. That conveyance also covered land which the defendant by contract undertook to sell and convey to one Todd, who also brought an action against this defendant to recover back purchase money. The proposition, urged on the part of the plaintiffs in this action, that the title taken by the defendant was defective on the alleged ground that the deed from Ferris to Rowe was not

titled to protection as the vested rights of the widow. See note to Mandel v. McClave (Ohio) 5 L. R. A. 519.

It is not defeated by a tax sale where the lien for taxes attaches after the dower right becomes fixed. Shell v. Duncan (S. C.) 5 L. R. A. 821. See also note

The inchoate right of the wife is as much en- to Everson v. McMullen (N.Y.) 4 L. R. A. 118.

sealed, has, at the present term of this court, | been determined in Todd v. Union Dime Sav. Inst. 28 N. Y. S. R. 697, upon the same evidence as that presented by the record here, adversely to the plaintiffs, and therefore will have no further consideration on this review.

time of its commencement. Lamont v. Cheshire, 65 N. Y. 30.

There is no occasion here to consider that question. It was contemplated by the provisions referred to of the Code that those whose conveyances or incumbrances appear by the There is, however, a further question in the record should be made parties in order to charge present case, which requires consideration. In with the result of the action those holding unMay, 1874, one Clark, claiming to be the owner der them not made parties, whose interests do of the premises, made to one Clapp a mortgage not so appear of record at the time of filing such upon them to secure the payment of $22,000 notice; that is to say, that the latter should be according to the condition of a bond made by barred by charging the former as defendants the mortgagor to the mortgagee, which bond in the action. The fact, therefore, that Clark and mortgage were duly assigned by Clapp to had conveyed the property, did not, for that the defendant, and afterwards, and in July, purpose, obviate the necessity of serving him 1874, the defendant brought an action to fore- with the summons, and charging him by the close the mortgage, and filed with the proper decree, and thus through him by that means clerk the summons and complaint, with a no- to bind any person, not made a party, who had tice of the pendency of the action. The mort by his unrecorded conveyance taken any right gagor, Clark, and one Thomas L. Sandford, relating to the title to the premises. It may be were named as defendants in the foreclosure assumed that the notice was duly filed, repreaction. The summons was in no manner served senting Clark as a party defendant; but that, upon Clark, nor did he appear in the action. of itself, was ineffectual to bar Mrs. Sandford's Sandford appeared and defended, and, among right of redemption, if she took any such right other matters, alleged a conveyance of the prem-through or by means of the conveyance. ises by Clark to him. The fact was that he had result was dependent upon effectuating the proa deed to that effect in his possession at the time ceedings in the action against him as a party of the commencement of that action. It was defendant. Without accomplishing such a renot then recorded, nor was the defendant then sult, he was, in practical effect, no more a party advised that such a deed had been made. But than he would have been if his name, as such, at the time of the commencement of that action had not appeared in the summons. The granSandford had a wife, Delia A. Sandford, who tee, Sandford, in the conveyance made by Clark, was not made a party defendant therein. The was served, and so far as he was concerned the question arises whether, in view of the fact failure to serve Clark had no importance, and that Clark was not served, the omission to its only consequence has relation to Mrs. Sandmake Mrs. Sandford a party defendant in the ford, and the effect of the foreclosure action, foreclosure action rendered the judgment in the decree, and its execution, if executed, upon that action ineffectual to bar her inchoate right her alleged inchoate right of dower in the premof dower. Such would have been the effect if ises. Assuming, as we may for the purposes 'Clark had been served with the summons or of this review, that such right existed when the had appeared in the action. Old Code, § 132; foreclosure action was commenced, it was the Fuller v. Scribner, 76 N. Y. 190. subject of her protection by means of defense or any other adequate remedy until lawfully barred. Mills v. Van Voorhies, 20 N. Y. 412; Simar v. Canaday, 53 N. Y. 298; Denton v. Nanny, 8 Barb. 618.

Such

This is on the permitted assumption (without considering the effect if otherwise) that the Savings Institution was in no manner charged with notice of the conveyance to Sandford at the time of the commencement of that action. The right of dower is not derived from the Assuming that Clark had conveyed his inter-husband. It is a right at common law, and est in the property, he was not a necessary party to the action of foreclosure; but, if the action had been brought and prosecuted upon that assumption, it was necessary to make those deriving any title or interest in it from his conveyance parties defendant. Prior to the Code the failure to record a conveyance made subsequently to a mortgage, and prior to the commencement of an action for its foreclosure or filing lis pendens, did not obviate the necessity of making such subsequent grantee a party defendant to bar his right of redemption. Those not made parties, and thus affected by the judgment, were purchasers and incumbrancers who became such pendente lite. Haines v. Beach, 3 Johns. Ch. 459; Hayden v. Bucklin, 9 Paige, | 512; Butler v. Tomlinson, 38 Barb. 641.

The provisions of the Code so modified the rule as to make the action and its result effectual, as against subsequent purchasers and incumbrancers whose conveyances are not recorded at the time of filing the notice of pendency of the action. This may not be the rule when a plaintiff in such an action has actual notice of the unrecorded incumbrance at the

arises by reason of the marriage and by operation of law. It is a right which attaches on the land when the seisin and the marriage relation are concurrent, and such is the effect of the Statute. 1 Rev. Stat. p. 740, § 1. When it was essential, under an early statute of this State, to determine the relation of the wife to the grant made of land to her husband, it was held that the wife's inchoate right of dower vested at the moment of the graut to the husband; and that she took such right constructively, as purchaser from the grantor. Sutliff v. Forgey, 1 Cow. 89; Forgey v. Sutliff, 5 Cow. 713; Priest v. Cummings, 20 Wend. 350; Connolly v. Smith, 21 Wend. 61; Lawrence v. Miller, 2 N. Y. 251.

And, inasmuch as Mrs. Sandford did not derive her inchoate right of dower from her husband, the fact that he was a party defendant to the foreclosure action did not operate to bar or defeat her right of redemption. In view of the apparent situation arising from the failure to bar this alleged right of Mrs. Sandford, the title which the defendant was able to convey to the plaintiffs was not free from reasonable

the Henry Circuit Court in the clerk's office of | edgment of service or not, as such notice is the Wayne Circuit Court acquired a lien on not necessary to the validity of this appeal. the interest of the said David C. Ulrich in the Section 2454, supra, provides that "any perestate of the testator, which lien, upon a sale son considering himself aggrieved by any deof the land, was transferred to the funds de- cision of a circuit court, or judge thereof in rived from such sale against which the set off vacation, growing out of any matter connected could not be allowed. with a decedent's estate, may prosecute an appeal to the supreme court, upon filing with the clerk of such circuit court a bond-. . . with sufficient sureties-. conditioned for the diligent prosecution of such appeal," etc.

Section 2455 provides that such appeal bond shall be filed within ten days after the decision complained of is made, etc.

Any person who is aggrieved, desiring such appeal, may take the same in his own name, without joining with any other person. The transcript shall be filed in the supreme court within ten days after filing the bond.

The contention of the appellant, Koons, as we understand it, is: (1) that by the terms of the will of the said Daniel Ulrich the said David had no interest in the land, but simply an interest in the proceeds of the sale of such land, which was personal property, and that by reason thereof the appellee acquired no lien by the filing of his transcript; and (2) admitting that the appellee did acquire a lien by filing a transcript of the judgment of the Henry Circuit Court in the clerk's office of Wayne County, that such lien was subject to the equities in favor of the estate, and that he was entitled to no more than the balance after the payment of the indebtedness of David to the estate. Before passing upon or considering the ques-duced from the decisions upon the subject is tions involving the merits of the controversy between the parties, it becomes necessary to inquire whether the case is in a condition to authorize this court to enter upon such consideration.

The appellee has filed in this court a motion to dismiss the appeal, for the alleged reasons: (1) that the appellant has failed to comply with the provision of 635, Rev. Stat. 1881, upon the subject of appeals; (2) for the reason that the case falls within the provisions of $ 2454 and 2455 of Rev. Stat. 1881, and it is claimed that, as the transcript in the cause was not filed in this court within the time limited by these sections, the appeal should be dismissed.

Section 655, supra, provides that "a part of several co-parties may appeal, but in such case they must serve notice of the appeal upon all the other co-parties and file proof thereof with the clerk of the supreme court."

It has been held by this court that where a part only of several co-parties appeal from a joint judgment without notice of such appeal to their co-parties, the appeal will be dismissed. Herzogg v. Chambers, 61 Ind. 333; People's Sav. Bank v. Finney, 63 Ind. 460; Cranmore v. Bodine, 65 Ind. 25; Hunter v. Chrisman, 70 Ind. 439; Couch v. Thomas, 71 Ind. 286.

But this rule is confined to parties against whom judgment has been rendered, and it is not necessary to serve notice upon parties to the record and against whom the court has failed to render any judgment in the cause, and who have no interest in the result of the appeal. Wilson v. Stewart, 63 Ind. 294; Logan v. Logan, 77 Ind. 558; Easter v. Severin, 78 Ind. 540; Hogan v. Robinson, 94 Ind. 138.

These statutes have been so often construed by this court that there is now no room for doubt as to their meaning. The rule to be de

that in all proceedings under the law providing for the settlement of a decedent's estate, where the exercise of the probate jurisdiction of the court is invoked, the appeal is governed by SS 2454 and 2455, Rev. Stat. 1881; but in all actions authorized by the Code, and not involving the exercise of the probate jurisdiction of the court, the appeal is governed by the Code, and these sections have no application. Browning v. McCracken, 97 Ind. 279; Bennett v. Bennett, 102 Ind. 86; Miller v. Carmichael, 98 Ind. 236; Yearley v. Sharp, 96 Ind. 469; Seward v. Clark, 67 Ind. 289; Rusk v. Gray, 74 Ind. 231; Willson v. Bunford, 74 Ind. 424; Hillenberg v. Bennett, 88 Ind. 540; Heller v. Clark, 103 Ind. 591, 1 West. Rep. 881.

This is a proceeding by a creditor of a legatee against such legatee and the administrator with the will annexed, to reach money in the hands of such administrator for the payment of a debt, not due from the estate represented, but due from such legatee. It cannot be successfully maintained that it is in any sense a proceeding authorized by the Act providing for the settlement of a decedent's estate, and hence the law regulating appeals from such proceedings has no application.

The motion to dismiss the appeal should be overruled.

The transcript of the judgment rendered in the Henry County Circuit Court, when filed in the office of the clerk of the Wayne Circuit Court, constituted a lien upon the interest of David C. Ulrich in the lands of which his father died seised. Upon a sale of the land by the appellant, such lien followed the proceeds of such sale into his land and bound it to the same extent it bound the land. Campbell v. Martin, 87 Ind. 577; Bell v. Green, 90 Ind. 75; Ballenger v. Drook, 10 Ind. 172; Simonds v. Harris, 92 Ind. 505; Wilson v. Rudd, 19 Ind. 101.

The decree rendered in this case is against appellant and David C. Ulrich alone. There is no finding, judgment or decree of any kind against any of the other parties to the suit. Notice of this appeal was served by appellant Such lien, however, was a general lien, and upon David C. Ulrich and he declined to join was subject to all the equities existing in favor in the appeal. Notice was issued for the other of the estate represented by the appellant, and parties to the suit and service acknowledged by conferred on the appellee, Mellett, no greater Kibby & Kibby, attorneys; but as they are not rights as against said estate than those possessed necessary parties to this appeal, we deem it un- by David C. Ulrich. The general lien of a necessary to inquire whether such attorneys judgment creditor upon the land of his debtor had authority to bind them by such acknowl- | is subject to all equities which existed against