Smith v. Gardner, 42 Barb. 356

Smith v. Gardner

42 Barb. 356 | N.Y. Sup. Ct. | 1864

By the Court,

Daniels, J.

The right of the plaintiff to

recover, is placed entirely on the circumstance that she was not a party to the foreclosure. And the only question now presented is, whether this is sufficient to entitle her to maintain the present action.

It is true, as a general legal proposition, that the widow is entitled to be endowed in all the lands of which her hus*365band, during the marriage, was seised of an estate of inheritance. But this right is liable to be defeated by every subsisting claim or incumbrance in law or equity, existing before the inception of the title, and which would have defeated the husband’s seisin. (4 Kent’s Com. 49.) And where the husband has executed a mortgage for the purchase money, before marriage, the widow cannot claim dower, as against the mortgagee or those claiming under him, while he may as to other parties. (3 R. S. 5th ed. 31, §§ 3, 4.) If, therefore, the mortgagee, or his assignee, had acquired possession of the premises under the mortgage, after forfeiture, the widow could not recover her dower, as to him, or any person claiming under him, but would be limited solely to a redemption of the mortgage. (Van Dyne v. Thayre, 19 Wend. 162.) For the party thus in possession, under the mortgage, could maintain it against every person claiming under the mortgagor. (Chase v. Peck, 21 N. Y. Rep. 586.) But while that is not denied, it is insisted that where the party in the_ possession is a purchaser, or derives his title under the purchaser, at a foreclosure sale, then he is not in under the mortgagee, and that the mortgage, as to him, is entirely extinguished. If that proposition be law, then it would seem to follow that the plaintiff is right in the form of action she has adopted, and judgment should have been directed in her favor. But it is not entirely correct to affirm that the purchaser at a foreclosure sale derives his title under the mortgagor. The object of the foreclosure is to protect and complete the title of the mortgagee under the mortgage. While tjre mortgage alone is, in equity, a mere lien, it is still such a lien that on a foreclosure it ripens into a title, extinguishing that of the mortgagor. And that is the case, not only in favor of the mortgagee, but also of the purchaser at the foreclosure sale, and of all persons afterwards claiming under him.

If the mortgagee in such a case enters under a foreclosure, or after forfeiture of the estate, and by virtue of his rights *366as mortgagee, the wife’s dower must yield to his superior title; for, as against the title under the mortgage, the widow has no right of dower, and the equity of redemption is entirely subordinate to that title. (4 Kent, 45.) This authority maintains the proposition that if the mortgagee enters under a foreclosure, he is in under his mortgage. Denio, J. considéring the effect of a foreclosure, in the case of Packer v. The Rochester and Syracuse Rail Road Co. (17 N. Y. Rep. 287, 288,) says: “The purchasers took the title which the mortgagor had before he gave the mortgage. That title passed to the mortgagee by force of the mortgage, and it passed to the purchasers by the foreclosure and sale.” “Where legal title is concerned, a mortgage, which for many other purposes is a mere chose in action, is a conveyance of the land. The interest remaining in the mortgagor is an equity. The foreclosure cuts off and extinguishes that equity, and leaves the title, conveyed by the mortgage, absolute.” The same principle is maintained by Savage, Ch. J. in Coates v. Cheever, (1 Cowen, 479.) He says: “Where the tenant enters by virtue of a foreclosure, or after a forfeiture for non-payment of the money, then the estate is deemed never to have vested, and the widow is not entitled to dower.” In Jackson v. Dewitt, (6 Cowen, 317,) the mortgagor, after default, reconveyed the equity of redemption to the mortgagee, under whom the title was derived which was in controversy. Woodworth, J. delivering the opinion of the court, remarks: “ The plaintiff’s title is not derived from the husband of the widow, but from Bruyn, the mortgagee, who accepted a release of the equity of redemption. The plaintiff may, therefore, set up any matter that Bruyn, the mortgagee, might have set up had Mrs. Miller brought an ejectment against him to recover the land set apart for her dower.” In Jackson v. Bowen, (7 Cowen, 19,) where one of the mortgagees became the'purchaser, on a foreclosure by advertisement, the court held that the purchaser “acquired all the right and interest of his co-mort*367gagees, in the mortgages as well as the land.” It “placed him on the same ground as though he had been sole mortgagee.” “ He acquired the right of an assignee.” And the same principle was applied in favor of the purchaser, against incumbrancers not made parties, in Benedict v. Gilman, (4 Paige, 58 ;) and was again maintained in Bell v The Mayor of New York, (10 Paige, 68,) a case in many respects like the one under consideration. In that case the chancellor says: “ The effect of the foreclosure in this case, to which she [the complainant] was not a party, is, as between her and the defendants, the grantees of Blackwell [who was the purchaser at the foreclosure sale] the same as if Blackwell had taken possession of the premises as mortgagee without a foreclosure, and had then assigned all his interest in the mortgage, and in the mortgaged premises, to the defendants.” (See also p. 70.) To the same effect is Mills v. Van Voorhies, (20 N. Y. Rep. 418,) where the court held that if the mortgage is foreclosed without making the wife a party, she can come in at any time afterwards and redeem, notwithstanding the decree and sale in the foreclosure suit. It was likewise applied, without any question as to its propriety, in favor of purchasers under the party acquiring title through foreclosures, in the cases of Mickles v. Dillaye and others, (17 N. Y. Rep. 80;) Wetmore v. Roberts, (10 How. Pr. Rep. 51;) and Robinson v. Ryan, (25 N. Y. Rep. 320.) And is declared by statute, (3 R. S. 5th ed. 273, § 88,) where it is provided that the deed, on a sale under a foreclosure, “shall vest in the purchaser the same estate, and no other, that would have vested in the mortgagee if the equity of redemption had been foreclosed; and such deeds shall be as valid as if the same were executed by mortgagor and mortgagee.” The deed of the mortgagee could only operate on his rights under the mortgage; and in that manner would convey the mortgage and the lien created by it, to the purchaser. In Jackson v. Bowen, (7 Cowen, 19, 20,) that effect is given to a deed on foreclosure by advertisement, even conceding that *368it could not, on account of irregularities in the proceedings, convey the land.

[Erie General Term, September 5, 1864.

It. is clear from these authorities, that the defendant is entitled to protect himself under the mortgage, through the foreclosure of which he derived title to the lands. If the plaintiff has any remedy at all, it is not by ejectment, but by an action to redeem. That was neither sought nor claimed, upon the trial of this cause.

The judgment appealed from should be affirmed.

Dams, Grover and Daniels,

Justices.]