61 Barb. 49 | N.Y. Sup. Ct. | 1871
Assuming, without deciding, that Mrs. Anthon has the right to appeal from this judgment, I think there is no reason to disturb it. The invalidity of the deed, I think, cannot be doubted. It stands substantially in the same plight as the assignment of the mortgage did in the case of Marvin v. Inglis, (39 How. Pr. 329;) and the evidence in this and that case is substantially the same. The Court of Appeals having affirmed the judgment in that case, I think there can be no doubt, on the evidence, and the law, as settled by that authority, that the referee was right in holding the deed in question to be void.
I think the statute of limitations had not barred the claim. Mrs. Anthon’s counsel urges that the 97th section of the Code .is applicable. I think this is a mistake. That section prescribes the time within which actions for relief, not before provided for in the Code, must be commenced. But this presents a cause of action provided for by chapter II of the Code. It is an action for the recovery of real property; and to such cases chapter II applies, while chapter III, which contains § 97, relates to “time of commencing actions other than for the recovery of real property.”
The claim for deductions on account of the value of Mrs. Marvin’s dower, and of taxes and assessments paid since the execution of the deed, is equally unavailable. The deed, being void, passed nothing. Mrs. Marvin could not convey her. inchoate right of dower. She could only release it to some one having the legal estate in the land. This is too clear to need the citation of authority. The
The judgment must be affirmed.
Ingraham, P. J., and Cardoso and Geo. G. SamaráJustices.]