#### ANSON U. BECKER, Respondent, *v.*GEORGE HOWARD and BRONSON C. RUMSEY, Appellants.

*Lis pendens*— *Tam sale—effect of, on prior mortgage—chap.*437, *Laws of*1855.

A *lis pendens*only relates to and affects voluntary alienations of property pending a suit in respect to it, by or from the defendant therein, and in no way affects independent parties asserting adverse rights in respect to it.

Where land, upon which there is a recorded mortgage, is sold for unpaid taxes, and a deed thereof is subsequently given by the comptroller, the purchaser acquires the legal title to the land, subject only to the right of the mortgagee to redeem as provided by sections 76 and 77 of chapter 437 of 1855.

Appeal from a judgment in favor of the plaintiff, entered upon the trial of this action by the court without a jury. This was an action of ejectment brought to recover the possession of certain land in Cattaraugus county. The plaintiff claimed to be the owner of the premises by virtue of.a conveyance from one Salmon, who had purchased the same upon the foreclosure of a mortgage. The defendants’ title was founded upon a certificate of sale for nonpayment of taxes and a deed from the comptroller given in 1869. It was proved that the notice to redeem required by sections 76, 77, 80 and '81 of chapter 427, Laws of 1855, had not been given.

The judge found, as a matter of fact, that the plaintiff was seized *360in fee simple of the premises, and was entitled to the immediate possession of the same, and gave judgment accordingly, from which the defendant duly appealed to this court.

*Sherman S. Rogers,*for the appellants.

*Geo. W. Cothran,*for the respondent.

E. Darwin Smith, J.:

In his findings of fact, the learned judge who tried this cause at the Circuit, besides the affirmative finding that the plaintiff was seized of the premises in fee simple, found also that the defendants had no title to the said lands arid premises, nor any right to the possession of the same, or any part thereof. These findings, it seems to me, were erroneous.

The defendants introduced in evidence a certificate of the sale of the said premises, made by the comptroller of this State to the defendants, dated November 24, 1866, for the non-payment of taxes levied thereon, and also a deed from the comptroller in the usual form, made in pursuance of such' sale, and dated February 16, 1869, conveying the same premises to the defendants, which deed was recorded in the clerk’s office of the county of Cattaraugus, October 16, 1869. This deed was presumptive evidence that the sale and all the proceedings prior thereto, including the assessment of the land and all notices required by law to be given previous to the expiration of the two years’ allowed to redeem, were regular, by the express terms of the _ statute. (Section 65, of the act relating to the collection of taxes on lands of .nonresidents, passed April 13, 1855; Session Laws of that year, page 793.) The necessary force and effect of this deed was to vest in the defendants the title to these premises by title paramount to the plaintiff’s. Such title is not at all affected by the plaintiff’s suit to foreclose the Baldwin mortgage, or by the *Us pendens*filed in said suit. A *lis pendens*filed under the statute only relates to and affects voluntary alienations of property, pending a suit in respect to it, by or from the defendant in the action. It is constructive notice to any such grantee or the persons dealing with the defendant in the action, and has nothing to do with independ*361ent parties asserting their own adverse rights in respect to the property. *(Harrington*v. *Slade, 22*Barb., 166; *Sears*v. *Hyer,*1 Paige, 483; *Stuyvesant*v. *Hall, 2*Barb. Ch., 151; S. C., 1 Sandf. Ch., 419.) The doctrine of *lis pendens*applies only to persons who might be made parties. *(Parks*v. *Jackson,*11 Wend., 442.)

Persons claiming in hostility to a mortgage, or by title prior or paramount, are not proper parties to a foreclosure of such mortgage, and cannot be affected by the decree, unless they come in and voluntarily submit to litigate their rights in such action *(Corning*v. *Smith, 2*Selden, 82; *Lewis*v. *Smith,*5 id., 514), and such parties cannot be affected by a *lis pendens*filed in such action. The defendants’ rights arose at and relate to the time of their purchase at the tax sale, which was November 24, 1866, and before the commencement of the foreclosure suit and the filing of the *lis pendens,*which was filed August 17,1868. The defendants had their certificates of sale in hand when the said suit was commenced, and had paid to the comptroller the purchase-money for said land,’ and had an initiate right to a deed thereof, provided the same was not redeemed, according to the statute, before the expiration of the two years from the date of their certificate, which period expired on November 24, 1868, subject only to the right of the plaintiff in the said foreclosure suit, or other assignee of said mortgage before the sale in such action, or of the plaintiff aforesaid, to redeem said premises within six months after service of notice requiring them so to do by the defendants, according to the provisions of sections 76 and 77 of said act of 1855. Section 63 of said statute provides, *“*that if no person shall redeem such lands within two years after the sale, the comptroller shall, at the expiration thereof, execute to the purchaser, his heirs or assigns, in the name of the people of this State, a conveyance of the real estate so sold, which shall vest in the grantee an absolute estate in fee simple, subject to all claims of the State for taxes thereon, or other liens or incumbrances.”

Such is the defendants’ deed and its effect. They acquired, by the comptroller’s deed, the fee simple in the lands, subject to the lien of .the plaintiff’s mortgage, which, said section 76 declares, shall not be affected by such sale, except as provided in the next section (79), if the plaintiff or other party interested in said mort*362gage should fail to redeem in six months after, notice so to do, in which case such lien is absolutely extinguished. The rights of the parties I conceive to be precisely "the same, in legal effect, as they would have been if the State had had a mortgage for the tax on this land prior to the Baldwin mortgage, and had duly foreclosed such mortgage and sold the premises, upon the foreclosure sale, to the defendants, subject to the Baldwin mortgage, or omitting to make the mortgagee or the assignees of said mortgage parties to such foreclosure. In such case, the legal title to the premises would have passed to the defendants, subject to the right of the assignee or owner of the Baldwin mortgage to redeem from such sale. Such rights the plaintiff doubtless acquired by the purchase at the foreclosure sale. He has acquired and possesses the rights of a subsequent mortgagee, unforeclosed, where the title is vested in a purchaser under a prior foreclosed mortgage. He is simply a mortgagee, and as such cannot maintain an action of ejectment till he has extinguished the prior title of the defendants.

These views involve the reversal of the judgment and the granting of a new trial, with costs to abide the event.

Present—Mullin, P. J., Smith and Morgan, JJ.

Judgment reversed and new trial granted, costs to abide event.