1 Barb. 399 | N.Y. Sup. Ct. | 1847
There can be no doubt of the correctness of the position contained in the plaintiff’s first point, that the deed of the 24th of May, 1815, having been executed by the plaintiff when an infant feme covert, does not bind or affect her, by virtue of such execution. The first question to be considered, therefore, is whether the testimony of the witness Samuel Smith was inadmissible, on the ground of interest, as contended for by the plaintiff’s counsel. No objection was made before the examiner, to the testimony on this ground. Notwithstanding that, however, a release from the defendant to the witness was executed. But the counsel insists that the interest was of such a nature that it could not be released, and that, therefore, the
The testimony of Samuel Smith being admitted, I think it establishes, in connection with the documentary evidence, the fact, that the mortgage was given to Peter Bush for the purchase money, and that the reconveyance by Cunningham, on the 24th of May, 1815, was given and received in satisfaction of the mortgagee’s debt, to the amount of $2875., The deed and mortgage being acknowledged and recorded at the same time, raisej of themselves, a presumption that they were simultaneous acts, and that the latter was given for the purchase money, although given to Bush instead of Smith. (Kettle v. Van Dyck, 1 Sandf. Ch. Rep. 76.) These facts raise the next question : Whether James Cunningham had such a seisin of the premises as would entitle the plaintiff to her dower. Upon this point the authorities are full and conclusive. Kent in his commentaries, (4 Kent, 45,) lays down the rule thus: “ If the mortgage was executed on a purchase before marriage, and the husband releases the equity after the marriage, the wife’s right of dower is entirely gone: for it never attached, as the mortgage was executed immediately on receiving the purchaser’s deed.” The case of Jackson v. Dewitt, (6 Cowen, 316,) is precisely in point. There Bruyn conveyed to Depuy, and took back a mortgage for the purchase money. Depuy then married Catharine Bevier. Depuy afterwards reconveyed to Bruyn for the moneys due on the mortgage. Hixon, the lessor of the plaintiff, derived title by several mesne conveyances from Bruyn. After Depuy’s death, dower was assigned to his widow by the surrogate. She
1. He contends that under the statute (1 R. S. 740, § 4,) the widow is entitled to dower as against every other person, except the mortgagee and his assigns; and that therefore the defendant, claiming under Smith, cannot avail himself of this defence, as the mortgage was given to Bush. That statute does not change the law, nor is it applicable to the case of a mortgage for the purchase money. I think, however, in Smith must be regarded as the real mortgagee. The 1= sold by him, and the mortgage, by his direction, taken by Bush. The property was reconveyed to Smith in tion of the mortgage, and the mortgage cancelled on the s of that conveyance. 2. It is contended that the defend his answer, admits himself in possession of the whole 100: while the deed to Smith conveys but 93 acres. But I find on examining the pleadings, that the bill charges that Cunningham conveyed to Smith, with certain reservations, the whole 100 acres. This the answer admits. The fact is thus established that the whole 100 acres were reconveyed to Smith with certain reservations. Now although when produced the deed shows an exception of seven acres, the plaintiff cannot avail herself of that discrepancy, as there is a material difference between an exception and a reservation. An exception is something taken out of that which is before granted, by which means it does not pass by the grant, but is severed from the estate granted. A reservation is something issuing out of the thing granted, and not a part of the thing granted. (Cruise’s Dig. tit. 32, Deed, ch. 3) In Shepherd’s Touchstone the distinction
Again; there is another fatal objection to this part of the plaintiff’s argument. If the exception in the deed is considered it excepts seven acres “ this day conveyed by James Cunningham to William Bush.” The evidence in this case, I think, fully warrants the conclusion, that the conveyance of these seven acres to William Bush, of which this recital is evidence binding the plaintiff, (Cowen Hill’s Notes, 160,) was in satisfaction of that part of the mortgage moneys due to Peter Bush. In this view of the case the plaintiff could not be entitled to dower in the seven acres, whether they were in the defendant’s possession or not.
Upon the whole, I think the plaintiff has failed to make out a case entitling her to dower, in any part of the premises. The bill must be dismissed with costs.