MacKenna v. Fid. Trust Co. of Buffalo

Citation184 N.Y. 411,77 N.E. 721
PartiesMACKENNA v. FIDELITY TRUST CO. OF BUFFALO et al.
Decision Date17 April 1906
CourtNew York Court of Appeals

OPINION TEXT STARTS HERE

Appeal from Supreme Court, Appellate Division, Fourth Department.

Action by Matilda J. Mackenna against the Fidelity Trust Company of Buffalo and others. From a judgment (90 N. Y. Supp. 493,98 App. Div. 480) modifying, and affirming as modified, a judgment for plaintiffs, and affirming an order of reference, plaintiff appeals. Modified.

This action was brought by a married woman during the lifetime of her husband to redeem lands from a judicial sale upon the ground that she was not a party to the action in which the decree to sell was made, although she had an inchoate right of dower in the premises sold. On the 21st of February, 1896, Joseph Mackenna, who was then and still is the husband of the plaintiff, became the owner in fee of certain premises in the city of Niagara Falls, subject to a mortgage thereon given by a prior owner on the 3d of December, 1895, to secure the payment of $23,525, with interest. On the 2d of February, 1897, said mortgage and the bond accompanying the same were assigned to the defendant the Fidelity Trust Company. On the 18th of December, 1899, an action was commenced by the trust company to foreclose said mortgage, but the plaintiff was not made a party thereto and she did not appear therein. It resulted in the usual judgment of foreclosure and sale, rendered on the 22d of June, 1900; the amount unpaid having been fixed at the sum of $20,758.69 and the costs, taxed at $175.89. Pursuant to said decree the premises, with the exception of certain lots, which had been released, were sold to the trust company on the 18th of July, 1900, for the sum of $10,000, and after a deed in the usual form had been executed and delivered by the sheriff the purchaser entered into possession. The plaintiff had personal knowledge of the pendency of the action and the time and place of sale, but she took no steps to protect her interests. On the 19th of December, 1899, said trust company commenced an action to foreclose a mortgage, which it had acquired by assignment, executed by the plaintiff to one Porter upon another piece of property. This action resulted in a decree and sale, and on the 1st of June, 1901, the trust company recovered a judgment therein against the plaintiff herein for the sum of $1,019.48; that being the amount of the deficiency arising upon such foreclosure. Before the commencement of this action the plaintiff tendered to the trust company the amount due on the judgment of foreclosure of the first mortgage above named, with interest, offered to pay all taxes paid by the trust company, and demanded that it should execute a deed to her covering the premises described in that mortgage; but such offer was refused and the demand was not complied with. Thereafter, and on the 10th of March, 1902, the plaintiff commenced this action to redeem and for an accounting as to rents and profits. The premises had then increased in value and were worth the sum of $38,000.

The trial court found the foregoing facts in substance, and found as conclusions of law that the plaintiff had the right to maintain an action to redeem during the lifetime of her husband; that she should not be required, as a condition of redemption, to pay the deficiency judgment of $1,019.48 obtained by the trust company against her, nor to pay the costs of the action, to which she was not a party, commenced to foreclose the principal mortgage; that redemption should be denied if the trust company should release plaintiff's right of dower from that mortgage, or pay her the value of her inchoate right of dower; that she should have 30 days to elect between these alternatives; that if the defendant should fail to release plaintiff's dower or satisfy it, in case she elected to accept either form of relief, she should have the right to redeem ‘upon payment of the amount due on the mortgage, $18,998.19, with interest thereon from the 3d of December, 1898, and upon payment of * * * all taxes paid’ on said premises by the trust company up to the day of redemption. Costs were allowed to neither party. From the judgment entered accordingly both parties appealed to the Appellate Division; the defendant from every part thereof, and the plaintiff from that part which denied her the right to redeem except upon the condition named. She also gave notice of her intention to bring up for review an order entered in the action appointing a referee to take testimony as to the value of the property involved and the amount paid by the trust company for taxes. The Appellate Division affirmed the order of reference and modified the judgment ‘by requiring the plaintiff to pay the judgment of $1,019.48 if redemption is had, or in the alternative deducting the amount of the judgment from the sum to be paid by the defendant,’ and, as so modified, the judgment was affirmed, with costs to the trust company; two of the justices dissenting. The plaintiff appealed to this court from both judgment and order, but the trust company did not appeal from either.Ulysses S. Thomas, for appellant.

Louis L. Babcock, for respondents.

VANN, J. (after stating the facts).

The primary question is whether the plaintiff had the right to redeem, although her husband was still alive and her right of dower inchoate only. The question has been discussed somewhat, but never decided, by this court. It was not involved in Mills v. Van Voorhies, 20 N. Y. 412; but in considering the question whether the inchoate right of a married woman to dower was affected by a foreclosure to which she was not a party, it was said by Selden, J.: ‘A feme covert, who executes a mortgage jointly with her husband, is nevertheless entitled to dower in the equity of redemption of which her husband is seised, notwithstanding the mortgage; and this right, as we have seen, is not affected by a foreclosure in equity unless she is made a party. If omitted, she can come in at any time afterward and redeem, notwithstanding a decree and sale in the foreclosure suit.’ After commenting upon Bell v. Mayor, etc., of New York, 10 Paige, 50, the learned judge continued: ‘In that case the foreclosure was not completed until after the death of the mortgagor, and hence it did not become necessary to determine the effect of a foreclosure in his lifetime. There is not the slightest reason, however, for giving to such a foreclosure any greater effect in cutting off the dower rights of the wife of the mortgagor than to one which takes place after his death. The inchoate rights of the wife are as much entitled to protection as the vested rights of the widow. Neither can be impaired by any judicial proceeding to which she is not made a party.’ In Moore v. Mayor, etc., of New York, 8 N. Y. 110, 59 Am. Dec. 473, it was held, under a statute then in force, that when lands are taken under the power of eminent domain the public acquire an absolute title free from the wife's inchoate right of dower, even if she is not made a party to the proceeding. Still, in Simar v. Canaday, 53 N. Y. 298, 304, 13 Am. Rep. 523, it was said: We think that it must be considered as settled in this state, notwithstanding Moore v. Mayor and some dicta in the other cases, that, as between a wife and any other than the state or its delegates or agents exercising the right of eminent domain, an inchoate right of dower in the lands is a subsisting and valuable interest which will be protected and preserved to her and that she has a right of action to that end.’ Accordingly, it was held that a married woman had a right of action for damages sustained by the loss of her inchoate right of dower against one who had procured a conveyance of lands from her husband by means of fraudulent representations, although he was still living and she had joined in the conveyance. ‘Public policy allows a wife to maintain in the lifetime of her husband an action to cancel, as forged, a recorded deed purporting to have been executed by her, together with her husband, instead of waiting for an admeasurement of dower after her husband's death.’ Clifford v. Kampfe, 147 N. Y. 383, 42 N. E. 1. The Supreme Court has repeatedly held that a wife can maintain the action to redeem during the lifetime of her husband. McMichael v. Russell, 68 App. Div. 104,74 N. Y. Supp. 212;Campbell v. Ellwanger, 81 Hun, 259, 30 N. Y. Supp. 792;Taggart v. Rogers, 49 Hun, 265, 1 N. Y. Supp. 900. This is the rule in other states without exception so far as our researches disclose. Davis v. Wetherell, 13 Allen (Mass.) 60, 90 Am. Dec. 177;Gatewood v. Gatewood, 75 Va. 407, 412;Smith v. Hall, 67 N. H. 200, 30...

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