Opinion
May, 1894.
Luther W. Emerson, for plaintiff.
Frederick C. Leubuscher, for defendant.
This controversy comes before us upon agreed facts, under sections 1279 to 1281 of the Code of Civil Procedure. In a partition suit, one of the record owners, James Mahady, had been absent from the state and unheard of for eighteen years. It was not known whether he was living or dead, or whether he was married or unmarried, or whether he had children or not. It is conceded that service of the summons therein was duly made on him and on his wife, if any, his heirs, grantees, devisees or assignees, as unknown defendants, by publication, pursuant to an order under and by virtue of section 438 of the Code of Civil Procedure.
The contention of defendant herein, who is under contract to purchase the premises from the plaintiff, the purchaser at the partition sale, is that, if James Mahady is dead and left him surviving no wife or children, no devisees or grantees or assignees, that then his brothers and sisters, whose names are known, cannot be cut off by the judgment of partition as unknown defendants.
This mode of service on unknown defendants is applicable to partition actions by section 1541 of the Code of Civil Procedure. Assuming that James Mahady was dead at the time of the commencement of the partition action, and that no one had heard from him after he departed from the state, at the age of nineteen, some eighteen years before, can it be seriously questioned by any one, without some proof, that he died without marrying, or without children or devisees, or without granting or assigning his interest, and that those who succeeded to his interest are unknown? If he is dead his heirs are unknown, for who can say who they are without some proof on the subject? We think his heirs, whoever they may be, are bound by the judgment, for they were properly served as unknown defendants. Wheeler v. Scully, 50 N.Y. 667; Moran v. Conoma, 36 N.Y.S.t. Repr. 680; Abbott v. Curran, 97 N.Y. 665.
The plaintiff is entitled to judgment, with costs and disbursements.
CLEMENT, Ch. J., and OSBORNE, J., concur.
Judgment for plaintiff, with costs and disbursements.