Dixey v. Dixey, 196 A.D. 352

Dixey v. Dixey

196 A.D. 352 | N.Y. App. Div. | 1921

Putnam, J.:

Tins appeal turns on the effect of the certificate, of the husband’s half interest, which has not been withdrawn or *354annulled. Instead of seeking to disaffirm it, she makes a point that this paper was a mark of her fairness and good will toward her husband. Thus she wrote: “ I am willing to meet you more than half way. I showed that when I willingly gave you a paper, saying you owned half the house.” This proves that the certificate was subscribed and delivered to attest and confirm the reality of defendant’s half ownership. No third persons are involved. As between Mr. and Mrs. Dixey the paper was effective without being acknowledged for recording. (Strough v. Wilder, 119 N. Y. 530.) And apart from technicalities this recognition of defendant’s interest finds support in the circumstances, that both were professional artists with independent incomes from the stage. When he gave her the admission of the $3>000 debt, she in turn granted this proof of joint ownership with mutual control; the two papers then are read together as parts of one transaction. There is no sound objection as to consideration. Advances of money in this manner put the recipient under a duty. Such equity becomes a good consideration. In the words of Buller, J.: “ Everything which is a ground for equity is a sufficient consideration.” (ffawkes v. Saunders, Cowp. 289, 293.) Plaintiff candidly comes forward and does not really deny the half interest she thus attested. An equitable defense is good in ejectment. .(Phillips v. Gorham, 17 N. Y. 270.) Hence plaintiff stands as a tenant in common with defendant. She has not been ousted, nor have her rights been denied. Therefore, she cannot bring ejectment against her cotenant. (Code Civ. Proc. § 1515; Gilman v: Gilman, 111 N. Y. 265.)

I advise, therefore, that her judgment be reversed and the complaint dismissed, with costs.

Present — Mills, Rich, Putnam, Blackmar and Kelly, JJ.

Judgment reversed and complaint unanimously dismissed, with costs.