In a "Betterment Proceeding After Ejectment," under the statute, Section 5047 (3239) C. G. L., it should be made to appear that when the petitioner purchased the land at a regular sale made by order of court, the record of the proceedings on which the sale was made justified the purchaser inbelieving at the time he purchased the land and made the improvements thereon, that the title conveyed under the sale was a good and valid title.
The decree of the circuit court annulling the title purchased under the foreclosure decree, contains a finding that *Page 856 the "bill of complaint attacks a decree heretofore entered by this Court as void for failure to properly follow the statute in obtaining constructive service, all of which matters are of record in this court."
While the purchaser at the judicial sale was charged with notice of the record of the proceedings leading to the foreclosure decree under which the land was purchased, such purchaser was not required to take notice of all matters which were "of record in this court," i. e., the circuit court. Counsel for plaintiff in error attached to his brief as an appendix a certified copy of the record of the proceedings in the chancery case setting aside the foreclosure decree. Such transcript necessarily included those proceedings in the foreclosure suit upon which McEwing relied for annulment of the sale under the foreclosure decree. The brief for plaintiff in error states: "Reference to the certified transcript of record in such chancery case, attached to this brief as an appendix, is hereby respectfully prayed."
Such certified transcript of the record was considered by this Court in so far as it directly affects the decree annulling the foreclosure decree, which annulling decree was made a part of the record by the plaintiff in error, who was plaintiff in the ejectment action. The final judgment awarding betterments to the defendant in the ejectment action was rendered by the same judge who rendered the decree setting aside the foreclosure decree.
The failure to properly follow the statute in obtaining constructive service is alleged to be failure to state in the affidavit for publication of process "the belief of the affiant as to the age of the defendants being over or under twenty-one years, or that their ages are unknown," and that the address of defendants were erroneously stated in the affidavit for such publication. The record of the foreclosure proceedings contained in the record to which reference was *Page 857 prayed, did show that the affidavit for publication of process did not state "the belief of the affiant as to the age of the defendants being over or under twenty-one years, or that their ages are unknown;" but, as shown in the prior opinion on rehearing, such omission did not affect the jurisdiction of the court over the subject matter of the foreclosure suit or the authority of the court to proceed in that cause upon the constructive service of process as published on the affidavit as made for such publication of process. Such omission was not a fatal defect in that foreclosure suit; and this Court can here so state even though no appeal was taken from the decree finding generally as stated above and annulling the foreclosure decree.
The other alleged defect in the affidavit, viz.: stating an erroneous address of the defendants, did not appear in the record of the foreclosure proceedings, but was shownaliunde three years later in the suit to annul the foreclosure decree. At the time of the foreclosure sale, the record of which the purchaser at the sale was required to take notice, did not show a fatal defect in the publication of process because of such erroneous statement of the address of the husband and wife, defendants in the foreclosure suit. The envelopes in which the orders of publication were mailed to defendants were returned to the clerk undelivered. These envelopes were on file in the court when the foreclosure decree and sale were made; but they did not show any irregularity in the publication of process. The address given in the affidavit was not shown to be erroneous by mere return of the letters giving notice of the publication of process. Assuming that the erroneous statement of the address of the defendants, husband and wife, in the affidavit for publication in the foreclosure proceeding, as shown in the suit to annul the foreclosure decree, was a sufficient basis for annulling the foreclosure decree, such later showing *Page 858 of the erroneous statement as to the address of the defendants does not retroactively affect the sufficiency of the record of which the purchaser had to take notice to justify his belief when he purchased the land and made the improvements thereon, that he would receive a good and valid title through the foreclosure sale.
Rehearing denied.
TERRELL, C. J., WHITFIELD, BROWN, BUFORD and CHAPMAN, J. J., concur.
THOMAS, J., disqualified.
