23 Barb. 125 | N.Y. Sup. Ct. | 1856
One of the objections made by the plaintiff to the title of the defendant was, that the rights of dower of the wives of certain grantees of Learned, the original mortgagor of the premises contracted to be sold, had not been extinguished. This was a valid objection. Although the seisin of the grantor of the persons whose wives were omitted from the foreclosure under which title was made to Van Voorhis, was not such as to give his wife a right of dower against the mortgage which was given for purchase money; and probably by the same rule the wife of his grantee could not claim dower against the mortgage, still in the surplus, after paying the mortgage, or in the equity of redemption, as against all persons but the mortgagee for purchase money, both the wife of the first mortgagor and the wives of his grantees would be admitted to dower. I am aware that it was decided by the late Justice Bar culo, in Cunningham v. Knight, (1 Barb. S. C. R. 399,) that when a woman married a husband who was seised of lands subject to a mortgage previously given for the purchase money, no right of dower ever attached and no suit to have her dower by redeeming all or any proper share of such a mortgage, could be maintained by the widow after the death of her husband. The learned judge placed his opinion very much on the authority of Jackson v. De Witt, (6 Cowen, 316,) and on the doctrine of an instantaneous or transitory seisin in the husband, in cases where the deed and the mortgage for purchase money were simultaneous and part
That the seisin of the husband in such a case is one of which the wife may be endowed, subject to the payment of the mortgage or to keeping down her just proportion of it, is clearly
It seems to me that these considerations are decisive of the present question. Whether the .wives of the grantees of the original mortgagor were necessary parties to a foreclosure, in order to make a perfect title, cannot depend upon whether they had or could have a dower interest against, or paramount to, the mortgage, but whether they have any interest in the lands at all. The object of a suit in equity upon a mortgage is to foreclose all parties interested in the equity of redemption; that is, to cut them off from subsequently claiming and obtaining the enjoyment of their interests, whatever they may be, by redeeming the mortgage either pro tanto or entirely. It may be very true that by a sale in a suit against the mortgagor alone or from which any parties in any way interested in the lands are omitted, the existing title and estate of both the mortgagor and mortgagee may become vested in a purchaser, but the interests and estates in the equity of redemption of persons who are not parties do not pass, nor are they affected by such a sale.
As to the wives of- the grantees of the mortgagor in this case, it is true the purchaser at the sale under the decree, stands in the place of the mortgagee but as mortgagee only. They have a right to invoke the rule, once a mortgage always a mortgage, until their rights have been foreclosed, and they may at any time after their inchoate estate has become entire and complete, assert their equity to redeem. The rights and equities acquired under the mortgage are indeed prior and paramount to these equities, but as long as any such equities exist the plaintiff was but a mortgagee in possession as to those in whom they are or may become vested, and he cannot convey a title which is perfect and indefeasible in equity as well as at law.
Upon the whole, I think we are compelled to reach these results in this ease : 1. The original mortgagor and his grantees had each of them .such a seisin of the equity of redemption in these lands, that their wives would be entitled to dower in that portion conveyed to their' respective husbands, subject to the payment of the mortgage made by Learned. 2. The wives of these owners of the lands could therefore in case they survived their husbands, come in and redeem the mortgage and so obtain dower. 3. Such an interest in the equity of redemption, and consequent right to redeem, cannot be barred or divested by .a foreclosure or sale in a suit to which the wife is not a party, whether the right be at the time actual or inchoate. 4. The
But this was a defect which the vendor could not remove. He might bring a suit to foreclose them, but he could not prevent them from redeeming if they saw fit. When, therefore, he offered the purchaser all the title he had he did every thing which he was able to do legally, to perform his agreement. The plaintiff declined this title, and after a very considerable delay, which is certainly somewhat equivocal as to the intentions of the parties, he brings this suit to compel the performance of the contract according to its terms; that is, to compel the defendant to give him a title which he confessedly has not to give. There is no desire or willingness to receive the title which the vendor has or can make, either expressed in the complaint or to be found or inferred from the plaintiff’s conduct. Such a suit as this a court of equity cannot entertain. When the title fails, and especially when it fails in a case where the vendor honorably supposed he had title when he made the agreement, the remedy of the vendee is a proper action for damages. It is true the vendee may offer to take the defective title with compensation for the defects, or a proper deduction from the purchase money; and if that is refused he may ask a specific performance to the extent of the vendor’s ability, with such compensation or deduction. So if the defect be not known or ascertained until the vendor’s title comes to be examined in a suit for specific performance, the vendee may then elect to take the title as it is, with proper compensation. But neither of these is this case. The state of the title was fully known to both parties and formed the ground of their original difference. This suit, however, is brought to compel the defendant to give a complete and perfect title, and there is no offer to take any thing less. That is something which is not in the power of the court to compel. Something which the defendant has not and cannot acquire, and therefore the referee might have dismissed the suit. His judgment
Brown, P. J. concurred.
The plaintiff demands, in this action, the specific performance of a contract for the sale of real estate to him, by the defendant, The defendant answers that he offered to perform the contract, according to its terms, but' that the plaintiff declined'the offer and refused to perform it on his part. And- the defendant contends that after such refusal he was absolved from his engagement. The plaintiff does not deny that the defendant tendered to him a conveyance, in terms conformable to the contract, but he alleges that there were defects in the defendant’s title to a portion of the premises, which could be cured by certain suggested proceedings by the defendant, and that he offered to accept, at the time, a deed for those parts to which his objections were inapplicable, and for the residue when the title should be perfected, and to adjust the payment or security of the purchase money upon equitable terms ; to which offer the defendant refused to accede.
The objections raised by the plaintiff to the defendant’s title were to the proceedings in a suit for the foreclosure of a mortgage to the defendant by one who had purchased from him, under which the defendant had purchased the premises. It did not appear from the papers on file, that subpoenas in that suit had been served upon all the defendants; or that final judgment had been entered against some of the parties named, and the wives of some of the purchasers of the equity, of redemption had not been named as defendants. It appears from the report of the referee that these objections were, at the time, founded in fact. Some of the papers to prove the service of subpoenas had been mislaid, but they were found upwards of two years after the negotiation between the parties had terminated, and that objection was then cured. The referee also states that the defendants named in the complaint in that suit, against whom no decree had been made, were judgment credit
The remaining objection, that the wives of some of the subsequent purchasers of parts of the premises sold in the foreclosure suit, if it ever had any force, still exists. It involves the question whether a purchaser of land, who, at the time of the conveyance to him, executes a mortgage for the consideration money, or a part of it, has a dowable estate, as against the mortgagee or those claiming under him. No doubt the deed of conveyance and the mortgage. Constitute but onb transaction, and the whole must be taken together. But I Cannot perceive how they constitute a eohveyanCe of an estate upon condition. The grantor cannot re-enter, nor recover the land, for condition broken, nor can he avoid the liens of incumbrances, except upon a foreclosure. The mortgage to him is not a reconveyance of the title upon condition to be void upon the payment of the secured money, but it is considered by our laws as a mere security, with the advantages that it has a preference over antecedent judgments against the mortgagor, and that it is not subject to the right of dower of his wife, if he has one, as against the mortgagee and those claiming under him. Neither can I understand how the grantee, in such cases, has only an instantaneous seisin. That would be so if he immediately reconveyed the title. He would then have no longer seisin than if he had been used as a mere conduit in the transfer to some third person. A mortgage is considered, in England, as a conveyance of the title, and accordingly the mortgagee could maintain ejectment for the land. In this state, however, since the abolition of the right to maintain ejectment, it is deemed to be a mere security for the payment of money, and the mortgagor is considered the owner, until foreclosure. By a statute of this state, which went into operation in 1830, (1 R. S. 740, 1, § 5,) it is provided that where a husband shall purchase lands during covertute and Shall at the same time mortgage his estate in
It is apparent, from the evidence, that the plaintiff was anxious to consummate his bargain, if he could obtain an unexceptionable title. Some of the objections raised by him at the time were apparently well founded, and he had a right to have them removed before he took a conveyance. Two of them have since been explained away, and the other, although so far plausible as to indicate that it was made in good faith, is invalid. It seems to me that under such circumstances he is entitled to the performance of the contract, so far as that can be effectuated, unless something has intervened which would render such a consummation peculiarly injurious to the defendant. Nothing has been suggested, except that the property has risen in value, and that the defendant would be deprived of the advance. That furnishes no' reason why he should not fulfill his engagement now, when it satisfactorily appears that he has the ability to do it.
The delay, however, has not been caused by the defendant. He was ready and willing to perform his contract at the time. He ought not to be subjected to any responsibility for the rents and profits of the property if they exceed the interest on the unpaid part of the purchase money. If they fall short of the interest he should receive the difference; and he may, at his election, have a reference to ascertain what he has received for such rents and profits, and to state á balance. The plaintiff may have a decree for a specific performance of the contract, so far as it can now be performed, on the payment of such balance, if any, and the defendant’s costs. And the judgment on the report of the referee should be reversed.
The decree should be entered under the direction of one of the justices of this court.
Judgment affirmed.
Brown, S. B. Strong and Emott, Justices.]