4 Keyes 525 | NY | 1868
Lead Opinion
That the plaintiff is endowable of the surplus which remained after the payment of the mortgages which had been foreclosed, is too well settled to be questioned. (Hawley v. Bradford, 9 Paige. 200; Vartie v. Underwood, 18 Barb. 561.) Hor will her right be affected whether the sales upon the foreclosure suits took place before or after the death of her husband, for it has been decided in this court that the inchoate right of dower of the wife is as much entitled to protection as the perfected or vested rights of the widow. (Mills v. Van Voorhies, 20 N. Y. 412.) Indeed these propositions are not denied by the counsel for the
The judge, before whom the cause was tried, finds the facts upon which the defendant’s counsel bases his claim to defeat the action; and he also finds, that she had no notice of the proceedings in relation to the distribution of the surplus money except the service of the summons in the foreclosure suits; that the suit of the defendant against the creditors of Matthews, to which the plaintiff was made a party, was for the purpose of obtaining the advice and direction of the court as to certain claims of creditors to priority of payment, and to enable him to distribute the proceeds, and that such action was still pending and undetermined. It' appears further in the case, that the defendant, IDuryee, still has the fund in his hands undistributed to any of the parties for whose benefit the trust was created.
The age of the plaintiff was admitted on the trial, and also that she had, before the commencement of the suit, and after the death of her husband, demanded from the defendant her dower in the surplus funds, which the defendant had refused to pay. The judge held, as conclusions of law, that she was entitled to dower as claimed, and he determined the. amount, and that she was not precluded from maintaining this suit by reason of the failure to appear and answer in the foreclosure suits, or to make a claim under the proceeding to distribute the surplus, and notwithstanding the pendency of
I am. of opinion that neither of the objections to the maintenance of this suit can he maintained:
I. The foreclosure suits, as well as the proceeding in reference to the surplus, and the suit of the defendant against the creditors, were all pending during the life-time of the husband, and all but the last terminated prior to his death. In the foreclosure suits the plaintiff’s right of dower was in no respect in issue, and proved no subject of adjudication. She had united in two of the mortgages, and the third was for the purchase-money, as against these she had no dower right to assert. Whether she might have a claim in any event, could only be determined after the termination of these suits, and if no surplus remained after the sale, her right would never arise; as matters stood at the commencement, and during the progress of these suits, she had no claim whatever to assert, and she was in truth a merely formal party to the suit, and any judgment rendered therein could in no way pass upon or affect rights which might thereafter arise.
II. The proceeding by which the defendant possessed himself of the surplus moneys is not a bar to this suit. She had no notice of that proceeding save the service of the summons in the foreclosure suits, and that, clearly, was not sufficient at that time; her right was still inchoate, nor was it possible then to determine her interest even if she had appeared. In that proceeding the defendant was adjudged to be entitled to the surplus only as to those who were properly before the court upon the hearing. There is nothing in the nature of an estoppel to forbid the assertion of the claim now made in this suit. The defendant has parted with nothing, nor has he been induced to take any action by reason of her failure on that occasion to assert any right she may be supposed to have had. He stands as a naked trustee with no personal interest to be affected, no loss to be incurred from any decision that shall be made touching the distribution of the funds in his hands. The creditors have no rights superior to the equity of the plaintiff. She is a dowress, a favorite of the law, and
III. Neither can it be successfully contended that the suit of the defendant against the creditors of the husband, to which both the plaintiff and her husband are made parties, operates to prevent him from maintaining the present action. The object of that suit, as stated in the answer in this case, and as found by the court, was to enable the defendant to close his trust under the assignment, and obtain the advice of the court as to the order of payment. Why the plaintiff was made a party does not appear, and it is certain that there "was no allegation in the complaint in that action in regard to her dower right in the surplus moneys, and no issue whatever has, or could be raised, whereby that subject could be brought into contestation, or any adjudication whatever rendered to determine her right. While it is true, as a general rule, that where a party to an action can enforce a remedy, but neglects to do so, he cannot resort to a new and independent action to accomplish the same result, yet this rule can only be invoked where the right not only exists, but where there was a full opportunity to assert the right, and ask for the remedy, in an action presenting or affording the opportunity to present the claim, and where an issue is, or can be legitimately framed to try it, and the court has jurisdiction both of the parties and of the subject-matter.
The defendant’s counsel claims, that, by bringing this action, the plaintiff affirms both the regularity and the binding force of the orders by which the surplus money was paid to the defendant, and that the result would be that she will thus claim the benefit of the orders as against the defendant, and avoid them as respects herself. No such result follows from this action. It does not question the regularity of the orders so far as respects the parties concerned in and bound by them, and, so far as she is affected, there is no necessity for questioning the orders, for the only effect of them has been to bring the money into the hands of the defendant as a trustee for distribution to the parties entitled to share in
It is insisted that the amount found by the judge for the dower interest of the plaintiff was erroneous. The counsel should have shown in what respect it is erroneous. It appears to have been made in conformity with the eighty-fourth rule of the Supreme Court, and the exception is simply to the finding, without indicating in what respect, if any, the judge erred in the computation. Such an exception, if the judge was right in his general conclusion, presents no legal proposition that this court is called to review.
The demand of dower, before the commencement of the action, was sufficient. It might, indeed, have been made precise and specific, by claiming one-third part of the surplus moneys then in the hands of the defendant. But the defendant was not misled by the character of the demand. He knew very well what it was the plaintiff sought, and not only indicated no intention of complying, but, as the case shows, admitted on the trial that he refused to pay the same, or any part thereof.
I am unable to see that any error was committed upon the trial, dr in the judgment rendered, and am accordingly of opinion that it should be affirmed, with costs out of the fund.
Dissenting Opinion
(dissenting). I do not think it necessary to determine, on this appeal, the effect of a foreclosure of a mortgage, given by a husband and wife, upon the inchoate right of dower of the wife in the equity of redemption. Conflicting views upon the subject have been expressed.
On the one hand, that, as a consequence of the original making and delivery of the mortgage, and one which the parties must have contemplated as the result, if the mortgage debt is not paid, and by force of the power of sale, the surplus of the proceeds remaining after a sale and satisfaction of the decree becomes personal property, and payable to the husband or to those who claim in his right. As to which, see Terry v. Neilson (6 Johns. Ch. 457, where Chancellor Kent says this is clear); Bell v. The Mayor, etc. (10 Paige
On the other hand, that the inchoate right of the wife to dower attaches to the surplus which, pro hacvice,is still to be deemed real estate, and entitles her to claim that such inchoate and contingent right be recognized and protected by a reservation of one-third of such surplus, until it shall be known whether she will survive her husband, and that in case she so survive, she may, as widow, receive the thereafter accruing income of such one-third during her life.
As to which, see the analogy claimed to exist in case of a sale in partition (Jackson v. Edwards, 7 Paige, 408, 409), which, however, lacks the argument derivable from the existence of the power of sale by force of the mortgage executed by the wife, or to which the seizure of the husband and all right of dower was subject, if purchased subject to the mortgage—and, more directly to the point in question, Denton v. Nanny (8 Barb. 618), and Vartie v. Underwood (18 id. 564).
The views expressed in this court in the case of Moore v. The Mayor, etc. (8 N. Y. 110), go very far to sustain the conclusions first above stated. G-abdiker, J., says: “ In considering whether a wife can, even for public purposes, be deprived of her inchoate right of dower without her consent and without compensation, though a possibility which may be released, it is not, it is believed, the subject of grant or assignment, nor is it in any sense an interest in real estate. It is not of itself property, the value of which can be estimated, but an inchoate right, which, on the happening of certain events, may be consummated so as to entitle the widow to demand and receive a freehold estate in the land, if she survived her husband. * * While living, he, as owner, is entitled to and represents the absolute fee. * * Although the husband cannot deprive the wife of dower by alienating the land during coverture; yet he may forfeit it, as for treason, and she will be concluded. In the case under consideration, the land was taken against the consent of the husband by an act of sovereignty for the public benefit. The
ÍTor is this at all inconsistent with the cases by which it is well settled in this State, that a widow has dower in the equity of redemption of lands under mortgage, and that a foreclosure, though in the life-time of her husband, will not operate as a bar to such dower; it leaves her contingent right wholly unaffected. The statute gives such foreclosure, and a conveyance thereunder, no greater effect than a conveyance by the mortgagor and mortgagee, and to bar other parties of title subject to the mortgage, and a conveyance by the husband would not extinguish her inchoate right. (See Lewis v. Smith, 9 N. Y. 502; Mills v. Van Vorhies, 20 id. 412.)
But without further comment upon the questions stated, I am clearly of opinion that the proceedings in the foreclosure suit touching the surplus moneys are conclusive upon the plaintiff. In respect to any claim to have any portion thereof reserved to await the contingent survivorship, she had her day in court, and by a lawful judicial proceeding in the action, in a court having jurisdiction of the subject and of the parties to the action, it was determined that the defendant was entitled to the surplus moneys, and that determination was carried into execution by the payment of the moneys to him. While the order, then made, remains in force, not modified nor reversed, I think it conclusive, and no action can be sustained to impeach it, by proving that if the plaintiff’s rights had been properly represented, the determination would have been different, not alleging any special ground for interposition by an independent suit (if in any case a new
The statute treating “ of the powers and proceedings of the court upon bills for the foreclosure or satisfaction of mortgages” (2 B. S. 191, part 3, chap. 1, tit. 2, art. 6), provides that the surplus shall be ■ “ brought into court for the use of the defendant, or of the person who may be entitled thereto, subject to the order of the court.” (§ 160.) If it be not applied for within three months, it shall be put out at interest * for the benefit of the defendant, his representatives or assigns, “ to be paid to them by the order of such court.” (§ 160.)
By this statute (apart from its necessary jurisdiction over moneys brought into court in due course of proceedings within its jurisdiction) the court have complete jurisdiction of the surplus money, and authority to distribute and pay the same by its order. This was jurisdiction of the subject-matter, and authorized the court to prescribe its own manner of proceeding to determine to whom it should be paid, and' this was regulated by its rules. By the rules in force when the order was made touching the disposition of the moneys in question, any party to the suit * * (whether he had appeared or not) was at liberty to institute a summary proceeding to determine to whom the moneys should be paid and have an order of reference for the purpose, and any party to the suit * * * (whether he had appeared or not) was at liberty to file a notice of his claim if he saw fit to assert any title- or right to the surplus moneys or any part thereof. And, therefore, every party who appeared in the action, and - every person who had filed such notice, was entitled to notice' of the application for the reference, and to attend on the reference, and to notices of subsequent proceedings relative to such surplus. (Buie 76 of Buies of Supreme Court of 1858.) The report of the referee is to be filed, and if no exceptions are filed, it “ shall become absolute and stand in all things confirmed.” The order for the payment of. the moneys in conformity with the report follows. The proceeding is supplemental to a decree in a suit to which the present plaintiff
The question recurs, what is the effect of the adjudication in the proceedings for ascertaining the title to the surplus ? And, in considering that, it should be borne in mind that, as a summary proceeding is an action after judgment, it is the subject of appeal to the General Term of the Supreme Court. Such appeals have heretofore been entertained, and I perceive no reason to doubt that a further appeal will lie to this court. (See 31 N. Y. 417.)
On what ground is it held of no effect as a determination of the title to the surplus?
The statute, and the established practice and rules of the court, were notice to the plaintiff, from the moment the suit was commenced by service of the summons upon her, that, if she claimed any right to the surplus or any part thereof, she must appear in the action or file notice of her claim; and, in a legal sense, every step in the action and in the proceedings
If the argument urged by the respondent has any force, where does it stop ?
It is not confined to the peculiar case of the present plaintiff. Judgment creditors, junior incumbrancers, even the husband, himself may, on like supposed grounds, neglect to appear in the action, neglect to file any notice that they claim to be entitled to the surplus, and after a reference has been had and the power of the court conferred by the statute has been exercised by an order paying out the money, and such order has been completely executed, they may commence their independent suits against the recipient, and hold all the proceedings a nullity as to any effect upon their title. This is to make the proceedings a farce, and the power of the court to order payment of the money a mere authority to appoint a custodian to hold the surplus in trust for the benefit of whom it may concern.
Such is not the effect of the proceeding.
In what I have said I raise no question of the power of the Supreme Court to open the inquiry where a default is excused and injustice appears to have been done; or of its power, after the money has been paid according to the order, to compel the recipient to bring it back into court for a just distribution. But so long as that order stands unrevoked, unreversed and in full force, a party to the foreclosure cannot maintain an action to recover the money or any interest therein, against him to whom by such order it has been awarded and to whom it has been paid.
I think the judgment herein must be reversed; but the action being one in which costs are discretionary, and the questions such that the plaintiff had judgment of the Supreme Court, at Special Term and in General Term, in her favor, the reversal should be without costs.
Masoh, J. I concur in the opinion of Woodruff, J., in this case.
Grover, J., also concurred with Woodruff, J.
Judgment affirmed.