McGowan v. Smith

44 Barb. 232 | N.Y. Sup. Ct. | 1865

By the Court, E. Darwin Smith, J.

The plaintiff, as widow of Andrew McGowan, was clearly entitled to dower in the premises in question, unless she is cut off by the foreclosure of the mortgage executed by McGowan to Charles and Thomas Brady. McGowan was seised of the premises in his" lifetime, and went into possession and occupied the same for some time. The plaintiff not having been made a party to the suit for the foreclosure of said mortgage is clearly not cut off from her dower in said land unless the mortgage is to be deemed a mortgage given for the purchase money, under the statute, which (§ 5, ch. 1, part 2, of the revised statutes) is as follows: “ When a husband shall purchase land during coverture and shall at -¿he same time mortgage his estate in such lands to secure the payment of the purchase money, his widow shall not be entitled to dower out of such lands, as against the mortgagee, or those claiming under him, although she shall not have united in such mortgage; but she shall be entitled to dower as against all other persons.” The mortgage under which the defendant holds title must, I think, very clearly he considered as - executed at the same time with the deed under which the plaintiff’s hushand took title, within the spirit and intent of this statute. The mortgagees, the Bradys,.having a contract from the land office of the Pultney estate for the purchase of the lot in question upon which they had paid part of the purchase money, agreed by contract in writing, dated September the 27th, 1828, to sell and convey said lot to McGowan by deed on or before the 1st of January then next, McGowan to pay therefor $610 at the time of the execution of the deed, and give a bond at the same time to pay $365 in seven annual payments from the said 1st of January, with a mortgage on said land as security for said bond. The deed, it appears, was made out and dated December 29, 1828, was acknowledged by the agent of Cathcart and TJre, at Geneva, December 29, 1828, and by James S. Wadsworth, the other grantor, at Geneseo, December, 31, was put on record at Rochester, January 2, 1829, at 9 o’clock a. m., and the mortgage, dated the same day, January 2, was acknowledged the same day and put on record at 10 o’clock a. m. of the same day. It is quite ap-'"' parent that the giving of this deed and the taking back of the mortgage was in fact one transaction. Mr. Hills, the attorney for the parties, testified that he had to send to Geneva for the execution of the deed, and then it had to be sent to Geneseo, 25 miles south of Rochester, for execution by Mr. Wadsworth, when the business was transacted. The delivery of the deed and of the mortgage were no doubt contemporaneous acts. Both were performed in the execution of the contract of the 28th of September, 1828. Mr. Hills testified that the Bradys rvere to give title in some Avay and take a mortgage for part or the Avhole of the purchase money, and the business was done in his office. The jury, if the case had been submitted to them, would have been bound to find that the deed and mortgage Avere in fact executed at the same time. The execution of the deed was not completed till its delivery Avhich could not have taken place sooner than the 2d day of January, 1828. The fact that the deed came from Cathcart and Ure and Wadsworth to McGowan, and not from the Bradys does not affect the question. The mortgage given by him to the Bradys was nevertheless a mortgage given for the purchase money of said land. There are some exceptions in the case, hut they were not pressed on the argument, and I understood them to he waived. Judgment should be given, therefore, for the defendants, upon the verdict.

[Monroe General Term, September 5, 1865.

Johnson, James 0. Smith and Ü?. Danoin Smith, Justices.]