Green v. Squires

This was an action to foreclose a mortgage. The mortgagor died seized of the premises (apparently intestate), and her heir at law was made a party defendant. The plaintiff, for greater security, made “ the unknown devisees ” under a supposed will parties defendant, and proceeded against them by publication. The action went to judgment and sale, but the purchaser declined to complete, on the ground that the order of publication was void. He contends that the order irregularly dispensed with deposit of the papers in the post-office addressed to these unknown devisees. His point is, that section 440 of the New Code requires a statement that the judge was satisfied by the affidavits on which the order was granted that the plaintiff could not with reasonable diligence ascertain the place or places where the defendants would probably receive mail matter. The order in question states that it so satisfactorily appears to the judge, but the words “ by affidavits,” etc., are omitted in that immediate connection. The entire order, however, is granted upon two affidavits which are recited, and which sufficiently prove the required fact. These affidavits show that the plaintiff has been unable to ascertain whether the mortgagor devised the premises by any last will and testament, for which reason the devisees, who are unknown, were made parties. *18The order also recites that the affidavits satisfactorily prove that the devisees are unknown, and that neither their names nor residence can be ascertained. From this it satisfactorily appeared that the plaintiff could not very well ascertain the place where mail matter would reach the unlcnown. The order to dispense with the deposit being made upon those affidavits, the proper facts did satisfactorily appear therefrom. An order which recites that it is made upon certain affidavits followed by the words “it satisfactorily appearing to me,” etc., is the equivalent of the statutory form of expression. The wording is substantially a statement that the judge, being satisfied by the affidavits, etc., dispenses with 'the deposit. The point is a very small one, and need not be dwelt upon further. At the same time we do not blame the purchaser for wishing the support of a judicial ruling.

The other point is equally untenable. The order requires the publication to be made in the State paper and in the Daily Register. That is a substantial compliance with the provision that the publication must be in two newspapers “ designated in the order as most likely to give notice to the defendant.” The law requiring the summons to be published in the State paper (the parties being unknown) and the Daily Register, necessarily declares that those official newspapers are most likely to give the required notice. Obedience to the law is a designation in the order of the newspapers most likely, etc.

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

Order affirmed, with ten dollars costs and disbursements.