Hiles v. Fisher

• Decision Date: 15 January 1895
• Citation: 144 N.Y. 306,39 N.E. 337
• Parties: HILES v. FISHER.
• Court: New York Court of Appeals Court of Appeals

144 N.Y. 306

39 N.E. 337

HILES

v.FISHER.

Court of Appeals of New York.

Jan. 15, 1895.

Appeal from supreme court, general term, Fourth department.

Submission without action of a controversy between John E. Hiles and Maria J. Fisher and another to determine the ownership of land. From a judgment of the general term (22 N. Y. Supp. 795) in plaintiff's favor, defendant Maria J. Fisher appeals. Modified.

Appeal from judgment of general term, Fourth department, on submission of controversy without action under section 1279 of the Code, stating substantially the following facts: The defendants are, and for the past 30 years and upwards have been, husband and wife. On or about the 22d of March, 1866, the defendants, by a deed to them as husband and wife, took title to a farm of about 44 acres in the town of Dryden, Tompkins county, N. Y., which they have ever since occupied and possessed as their home under said deed with no other title. This deed runs to ‘William R. Fisher, of the town, county, and state aforesaid, and Maria J. Fisher, his wife,’ and the consideration therein stated is $3,000. It was duly recorded on the 9th of May, 1866. The purchase price was wholly paid by the wife, who, however, consented to the form of the deed as taken by them. On or about March 31, 1885, the defendant William R. Fisher borrowed of the plaintiff $1,400, for which he and his wife gave their promissory note. On or about February 20, 1886, William R. Fisher, to secure the payment of this debt to plaintiff, and other small amounts of borrowed money, amounting then altogether to $1,550, executed and delivered to one Goodrich, for plaintiff, a mortgage in the usual form, granting and conveying the said 44 acres, and conditioned for the payment of $1,550, one-half in one year and balance in two years, with interest at 5 per cent. annually. This mortgage was dated and acknowledged February 20, 1886, and was immediately assigned to plaintiff. It was recorded August 5, 1890. Fisher, of the money which he borrowed of plaintiff, used $1,000 in part payment for 35 acres of land in the same town, the title to which he had taken in his own name. At the time the mortgage was given, the plaintiff knew that the wife's money paid for the 44 acres, and that she refused to sign the mortgage, but the supposed that William R. Fisher held the title, and the wife had only her dower right therein, and he therefore said that the mortgage was good enough without her signature, and so took it; and he told the defendants that he did not calculate that William R. Fisher should ever pay the mortgage; that he calculated to give it to him by his will, and all he wanted was the interest while he lived. The description in the mortgage was copied from the deed, which was present when the mortgage was executed and delivered. On 3d of September, 1890, William R. Fisher conveyed to Maria J. Fisher both of said parcels of land by quitclaim deed recorded that day. Default was made in the payment of interest on the mortgage, and it was duly foreclosed by statutory foreclosure, and on the sale thereunder, which occurred February 6, 1892, the premises were bid in by the plaintiff for the sum of $500, the amount then unpaid on the mortgage being $1,863.37, besides the expense of foreclosure, thereby vesting in plaintiff the entire fee so far as the mortgagor could lawfully have conveyed at the date of the mortgage under the same circumstances. Notice of the foreclosure was duly served on both defendants. Mrs. Fisher thereafter, and before the sale, commenced an action in the supreme court against the plaintiff and said Goodrich and her husband, asking that the mortgage be declared void as to her, and be set aside as a cloud upon her title, and that the foreclosure of the mortgage be restrained. A temporary injunction was obtained, but vacated by the court upon the papers upon which it was granted. On the foreclosure sale Mrs. Fisher gave notice of her claims. After the sale the plaintiff duly demanded possession of each of the defendants, and they severally refused to deliver the same, and now withhold it. Upon these facts the plaintiff claimed the right to recover the premises, with the right to hold the same during the joint lives of the husband and wife, and in fee in case the husband survives the wife. The defendant Mrs. Fisher claims that the mortgage, not having been signed by her, was void, and that, Mr. Fisher's interest having been conveyed to her, she is the absolute owner; that by reason of her having paid for the property she is equitable owner of the whole; that, in any event, she is entitled to the possession during the joint lives of herself and husband, and to the fee in case she survives. The general term rendered judgment adjudging that by the sale under the mortgage the plaintiff acquired the right of possession of the whole property during the joint lives of Mr. and Mrs. Fisher, and to the fee in case the husband survived the wife.

A. P. Smith, for appellant.

S. D. Halliday, for respondent.

ANDREWS, C. J. (after stating the facts).

It was decided in Bertles v. Nunan, 92 N. Y. 152, that the separate property acts relating to the rights of married women had not abrogated the common-law doctrine; that under a conveyance to husband and wife they take not as tenants in common, nor as joint tenants, but by the entirety, and upon the death of either the survivor takes the whole estate. In that case the husband had died, leaving his wife surviving, and the question was whether the wife, as survivor, took upon the death of her husband the entire fee under the doctrine of the common law. The question, what change, if any, had been wrought by the separate property acts in respect to the common-law rights of the husband to control and use the property conveyed to husband and wife jointly, during their joint lives, was not considered or decided, but was expressly reserved, on the ground that it was not involved in the case then before the court. That question is involved in the present case, and must now be decided. The decision in Bertles v. Nunan is supported by the great weight of authority in other jurisdictions in this country, but in some of the states it has been held that, as a consequence of statutory provisions substantially like those in this state, conferring upon married women the right to take and hold separate property to their own use, free from the control of their husbands, as femes sole, estates by entireties have been abrogated, and turned into tenancies in common. In the states where this construction has been put upon the married women's acts, the question of the rights of the parties to the usufruct during their joint lives could scarcely arise, because it is one of the generally admitted results of this legislation that the common-law right vested in the husband to the rents, profits, and use of his wife's real estate duting their joint lives has been destroyed.

It is, however, a much more serious question what the effect of this legislation is upon the common-law right of the husband to the usufruct during the joint lives of the husband and wife, of lands conveyed to them jointly, in those states where it is held that, notwithstanding the legislation, a conveyance to husband and wife retains its common-law character and incidents. If the right of the husband to the use during the joint lives of lands held under this tenure was a right growing out of and incident to this particular species of tenancy,-in other words, if it was one of its specific and essential characteristics,-then it would be impossible to segregate this right from the other rights incident...