Baldwin

The contract of sale executed to McCabe by the Western Pacific Railroad Company, under which McCabe entered *588 into possession, vested in him a perfect equity to the premises therein described, and an absolute right to a conveyance in fee, so soon as the company should obtain a patent from the government of the United States. By successive conveyances this equity passed to Sparling, and (subject to the lien of the mortgage delivered by the latter to the defendant Morgan), to Jordan & Clayton, and finally came to Jabez M. Baldwin, the plaintiff in this action. The question upon which the case turns is, whether Baldwin is to be considered to have been a party to the decree of foreclosure subsequently entered upon the mortgage delivered by Sparling to Morgan.

The summons in the action by which that mortgage was foreclosed was personally served upon Baldwin. The return of the sheriff indorsed upon the summons was that he had served Baldwin—“personally served the same (the summons) on the 10th day of November, 1871, on Jabez M. Baldwin, named in the within summons ‘John Doe,’ by delivery to him, said defendant, personally,” etc. Had Baldwin been named in the complaint as a defendant…