Bockes, J.
This action was brought in the Superior Court of the -city of blew York, to redeem, certain lots and premises situated in said city, from the effect and lien of a mortgage covering the same, made by the plaintiff Smith Davis to the defendant Cornelius R. Duffie, dated March 8, 1838, which mortgage was given to secure the payment of $1,000 and interest within two years from its date.
The court at Special Term gave judgment for the plaintiffs, holding that they were entitled to redeem the premises from the lien of the mortgage, and determining the rights óf the parties, defendants, who had acquired an interest therein.
On appeal the G-eneral Term reversed the judgment and ordered a new trial; whereupon the plaintiffs appealed to this court, stipulating, in case the order should be affirmed, judgment absolute might be rendered against them.
The record shows that on the 2d day of September, 1839, the mortgagor, Smith Davis, was convicted of perjury in the secorid degree, and was sentenced to the State prison at Sing Sing, for seven years from that time, and that he was confined there during the period of his sentence; that while he was thus in confinement the mortgagee - took proceedings to foreclose the mortgage in the Court of Chancery before the vice-chancellor of the first circuit, and on the 10th September, 1840, obtained a decree of foreclosure and sale, under which decree a sale was had, and the defendant Duffie, the mortgagee, became the purchaser of the mortgaged premises. Davis was a party to the foreclosure suit, The subposna issued therein was served on him while im prisoned in the State prison under the aforesaid sentence, and also on the keeper of the prison. On these facts the question is presented whether Davis, the mortgagor, was hound by the foreclosure and his right of redemption thereby barred. It is insisted on the part of the plaintiffs that the service of process on him in prison under sentence for felony, was unauthorized, illegal and void, and this position is based on the statute which declares that “ a sentence of imprisonment in the State prison for any term less than for life, suspends all the civil rights of the person so sentenced * * * during the term of such imprisonment.’!’ (2 R. S. 101, § 19.)
It is plain, I think, that the convict can claim no immunity under this provision of the statute. Its pmpose was not to give him rights or privileges which he would not have if free or unaffected by a conviction and sentence for a criminal offense. The language is that the sentence “ suspends all the civil rights of the person so sentenced,” not the rights of others against him.
I concur unreservedly in the remarks of Judge Boswobth, when he says, that Duffie’s mortgage lien was not impaired by Davis’ guilt or conviction; his right to foreclose remained unaffected; and further, that if Duffle could not procure a regular valid decree while Davis was in prison, that it will follow that his conviction and sentence not only suspended his civil rights, but also suspended his creditors’ rights against him. This result was neither effected nor intended by the statute. It was decided in Phelps v. Phelps (7 Paige, 150), that service upon a convict in State prison, as in this case, was regular and valid to confer jurisdiction, and this has been the settled rule of law and practice both in England and in this country for a long period of time. (2 Maddock’s Ch. Prac. 200; 1 Hoffman’s Ch. Prac. 109; 1 Barb. Ch. Prac. 50, 51.) Even if Davis could be deemed civilly dead, as would have been his condition had he been sentenced to imprisonment for life (2 R. S. 201, § 20), still he would have been answerable to his creditors according to the usual practice of the courts. Chittt says : “ This situation as cmiliier mortuus is never allowed to protect him from the claims of private individuals, or the necessities of public justice, so that although he can -bring no action against another, he may be sued and execution may be taken out against him.” See also remarks of Chancellor Kent, in Platner v. Sherwood (6 Johns. Ch. 130, 131.) Indeed the decisions are uniform that although the right of a convict to prosecute an action is suspended, and his property in some instances forfeited, still he may be sued,- and the suit against him may be prosecuted to judgment.- Nor is this right taken from a creditor by the provision of the statute declaring that persons imprisoned in the State prison, other than persons adjudged to.imprisonment for life, shall be deemed absconding debtors within the provision of the act providing for relief against absconding and absent debtors. This act was intended to enlarge the rights of creditors, not to limit or restrict them in regard to persons under confinement as criminals. This subject is fully considered by Mr. Justice Boswobth, in his opinion on the appeal in the court below, and with his reasoning and conclusions on this as well as on all the other questions in the case, we entirely concur.
The order appealed from must be affirmed with costs, and judgment absolute against the plaintiffs rendered- pursuant to the stipulation served with the notice of appeal.
All concur.
Judgment affirmed.