Witthaus v. Schack

• Decision Date: 19 April 1887
• Parties: WITTHAUS v. SCHACK.
• Court: New York Court of Appeals Court of Appeals

105 N.Y. 332

11 N.E. 649

WITTHAUS

v.SCHACK.¹

Court of Appeals of New York.

April 19, 1887.

John E. Burrill, for plaintiff.

Lewis Sanders, for defendeant.

RUGER, C. J.

This action was brought by the plaintiff, as the widow of Rudolph A. Witthaus, to cancel and annul a deed of several parcels of land in the city of New York, so far as it affected her right of dower in the parcels lying below Fifty-ninth street, upon the ground that her signature thereto had been obtained by the false and fraudulent representations of her husband. The proof showed that on December 23, 1876, Rudolph A. Witthaus and the plaintiff executed and duly acknowledged a deed of 10 separate parcels of real estate, situate in the city of New York, lying partly above and partly below Fifty-ninth street, to Frederick Schack, the defendant, in fee to secure the payment of certain debts owing by Witthaus to the several persons named in the deed. It was stated therein that it was upon trust to sell and convey the land, to produce the best price that could be realized from the same, and apply the moneys realized to the payment of said debts pro rata, according to their respective amounts. The proof further showed that the deed was delivered to the defendant on the same day, and he immediately entered upon the possession of the property, and continued to sell, convey, and rent the same until the commencement of this action, in January, 1879. Rudolph A. Witthaus died by his own hand on March 19, 1877.

Upon the trial the plaintiff was herself offered as a witness to prove the fraudulent representations alleged, and upon the faith of which she claims that she was induced to sign and acknowledge the deed in question. Upon being asked to relate the conversation occurring between herself and her husband in which the representations occurred, the defendant's counsel objected to the competency of her evidence, upon the ground that it constituted personal communications between the defendant's deceased grantor and the witness, which were inadmissible under the Code. The objection was overruled by the trial judge, and the defendant excepted. The witness thereupon gave evidence tending to show that on the morning of December 23d her husband requested her to join him in a deed of so much of his property in the city of New York as was situated north of Fifty-ninth street, to Schack, the defendant, for the purpose of securing several persons to whom he was indebted. She assented to this proposition, and further testified that when, later in the day, the deed was presented to her for execution and acknowledgment, her husband said that it was prepared in accordance with the agreement made between them in the morning. The evidence thus given by the plaintiff was the only proof offered as to the fraudulent representations alleged by the plaintiff.

The only question which we consider it necessary to discuss relates to the competency of this evidence under the Code of Civil Procedure. The provision of the Code, so far as it is applicable to the question in hand, may be abbreviated as follows:

‘Sec. 829. Upon the trial of an action * * * a party or person interested in the event * * * shall not be examined as a witness in his own behalf or interest, * * * against * * * a person deriving his title or interest from, through, or under a deceased person, by assignment or otherwise, concerning a personal transaction or communication between the witness and the deceased person.’

It is not disputed that the plaintiff is a party and interested in the event of the action, or that the subject of the inquiry related to a personal communication between the deceased person and the witness; but it is claimed, as stated in respondent's points, that ‘the plaintiff was not an incompetent witness under section 829 of the Code, because the title or interest to be affected by the action was not derived by defendant from plaintiff's husband, but from plaintiff.’ The plaintiff thus seeks to stand upon the letter of the statute, and to claim exemption from its provisions by reason of the alleged creation of a contingent estate intermediate the seizing of the husband and the execution of the deed, which it is claimed suspended the husband's title to a part of his property, and created a new estate, transferable only by a conveyance from the wife. The error in this proposition consists in the assumption that the wife has an estate in the lands of her husband during his life, which she can convey to another.

The settled theory of the law, as to the nature of an inchoate right of dower, is that it is not an estate or interest in land at all, but is a contingent claim arising, not out of contract, but as an institution of law, constituting a mere chose in action, incapable of transfer by grant or conveyance, but susceptible only during its inchoate state of extinguishment. By force of the statute, this is effected by the act of the wife in joining with her husband in the execution of the deed of the land. Such deed, so far as the wife is concerned, operates as a release or satisfaction of the interest, and not as a conveyance, and removes an incumbrance, instead of transferring an interest or estate. Her right may also be forfeited by her adultery, and thus extinguished and barred by jointure or pecuniary provision.

It was said by Judge GARDINER, in Lawrence v. Miller, 2 N. Y. 245, that, ‘before assignment, the widow has no estate in the lands of her husband. Her right is a mere chose in action, which cannot be sold upon execution at law; until that time it is strictly a claim;’ affirmed in Lawrence v. Brown, 5 N. Y. 394. The same learned judge said in Moore v. City of New York, 8 N. Y. 112: ‘Before assignment of dower, the widow has no estate, but a mere right in action or claim, which cannot be sold on execution;’ citing 2 N. Y. 254; Greenl. Cruise, Dig. tit. ‘Dower,’ c. 3, § 1; Gooch v. Atkins, 14 Mass. 254; Greenl. Cruise, Dig. tit....