Pope v. . Mead

1 N.E. 671 | NY | 1885

The claim of the appellant to appropriate the value of the plaintiff's dower-right to the payment of his judgment against Henry Ropke is without a shadow of equity and should not be permitted to prevail upon any technical or narrow view of the principles of law applicable to this case. She must stand upon precisely the same equities which she would have if, instead of assigning or releasing her dower interest, she had conveyed land and taken the mortgage for the purchase-money thereof; and in that event it is well settled that her mortgage would have been a paramount lien to the appellant's judgment. (Jackson v.Austin, 15 Johns. 477; Haywood v. Nooney, 3 Barb. 643;Watson v. McKenny, 3 Wend. 233; Van Vleet v. Slauson, 45 Barb. 317; Flagg v. Munger, 9 N.Y. 483.) Her dower right was an absolute right which was assignable. (Payne v. Becker,87 N.Y. 153.) At the same time that she conveyed or released it, the purchasers executed the mortgage, and at the same instant that the title passed out of her the mortgage secured to her the purchase-money; and in equity her right to the purchase-money is superior to the right of the appellant under his judgment.

The judgment should be affirmed, with costs.

All concur.

Judgment affirmed.