Marvin v. Lewis, 61 Barb. 49

Marvin v. Lewis

61 Barb. 49 | N.Y. Sup. Ct. | 1871

By the Court, Cardozo, J.

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 *52deed being void, the plaintiff had the right to recover the land. The court could not, in declaring the deed void in law, impose, as a condition, that it should be treated as good, so far as to require the plaintiff to repay what had been paid for taxes and assessments. It was absolutely void 5 and even if the payment, in good faith, of taxes and assessments, would seem, in conscience, to create an equity for reimbursement, I see no principle upon which a court of equity could require it, any more than such reimbursement could be decreed where a person had committed the mistake of paying taxes' on property which did not belong to him. That is the most that could be said in this instance.

[First Department, General Term, at New York, November 7, 1871.

The judgment must be affirmed.

Ingraham, P. J., and Cardoso and Geo. G. SamaráJustices.]