Russell v. Austin

1 Paige Ch. 193 | New York Court of Chancery | 1828

The Chancellor :—There is no doubt of the complainant’s right to be endowed of the premises which formerly belonged to her husband. She claims the one-third of the premises as her dower, and the arrears which have heretofore accrued, together with the costs of this suit; but the defendant insists she is only entitled to dower in the equity of redemption, and that she has no claim, either for the arrears or for costs.

In the case of Coates v. Cheever (1 Cowen’s R. 460,) the Supreme Court decided that the widow was entitled to dower, as well in that half of the premises against which Cheever had purchased an outstanding mortgage, as in the other half *on which there was no incumbrance. Although the court in that case speak of the incumbrance being merged in the estate which existed in Cheever at the time of the assignment, they could not have intended to overturn the doctrine, which had before been established in this court, that the widow must contribute her share towards paying off the incumbrance. That was an appeal from the decision of a surrogate, in a proceeding to ad-measure dower under the statute. The question of equitable contribution could not arise under those proceedings in a court of law. The only question before the court was, whether she was entitled to dower in that half of the property. And Cheever would still have been at liberty, notwithstanding that decision, to have applied to this court to compel contribution. There was no merger of the mortgage in this case by the assignment to Corning, or by the assignment from Corning to the defendant. In the case of James v. Morey, (2 Cowen’s Rep. 246,) the Court of Errors decided that the question of merger depended on the intention of the person who took the assignment of an outstanding title or estate, provided he had any interest in keeping up the incumbrance, and preventing a merger thereof in his prior estate. At the time of the assignment of the mortgage, in this case, the husband was dead and the wife’s right of dower in the premises had become complete. The mortgage was purchased in and assigned, instead of being paid off, under the advice of counsel; and for the avowed object of protecting the assignee against the claim of dower, to the extent of that incumbrance. There can, therefore, be no pretence that the mortgage interest was merged by the assignment to Corning, or by the sale and assignment to the defendant, when it was still kept on foot for the same purpose. The widow is only entitled to dower in the equity of redemption, and must contribute her share towards the payment of the mortgage.

In this case the husband died seized of the premises, and she is entitled to the arrears of her dower. Although the land had been sold by the sheriff, the time within which the husband was entitled to redeem had not expired at his death. The sale by the sheriff changed the general lien of *the judgment to a specific lien in favor of the purchaser, to the amount of the purchase-money and interest; and until the time of redemption expired, the estate of the purchaser was in the nature of a mortgage, and the seizin of the husband was not divested. But the widow is not entitled to recover against the defendant any arrears which accrued previous to his purchase of the premises. The arrears from that time must be ascertained by computing the amount due on the bond and mortgage at the time of the defendant’s purchase, and then deducting one-third of the interest on that amount from one-third of the rents and profits of the property, over and above the necessary repairs, taxes, &c. And this will also form an equitable rule by which the parties may settle an annuity to be paid to the complainant, hereafter, in lieu of her dower. If the parties cannot agree upon an annuity, the complainant will be entitled to be endowed of one entire third of the premises, on her keeping down one-third of the interest on the amount due as aforesaid, or by paying a sum in gross in proportion to the value of her life estate in the premises.

The question of costs in this as in other cases in Chancery, depends upon the exercise of the sound discretion of the court. If the complainant had made application to the defendant to assign her dower in the premises, or to pay her an equivalent therefor, and he had refused such reasonable request, I should have considered her entitled to the costs of this suit. But it appears by the answer that she never applied to him for her dower; and the first notice he had that she intended to make such a claim was by her bill, in which she alleged that the mortgage had been paid off, and insisted upon her right to be endowed of the whole premises, and claimed the arrears as well before as after his purchase. The defendant has been compelled to resist this unfounded claim, and I think it a proper case for each party to bear their own costs.