30 A.D. 183 | N.Y. App. Div. | 1898
Lead Opinion
The mortgage in terms covers the entire premises without reservation or exception and, therefore, covers the wife’s estate in the undivided two-fifths thereof. (1 R. S. J48, § 1.) Cases like Power v. Lester (25 N. Y. 535) and Gillig v. Maass (28 id. 191), are to. the effect that in respect of the husband’s lands .the joinder of the wife with him in the -mortgage thereof only operates to release her contingent right of dower. Such was the effect here in respect of the husband’s portion of the mortgaged lands. But the mortgage also covers the wife’s portion of the premises. This portion the husband could not incumber, but she could, and did. The mortgage has the effect which its terms express. There is no ambiguity.in it.- The parol evidence offered as to what the mortgagee said as to the effect of her execution of it contradicts its- terms, and was, therefore, properly excluded. (Hutchins v. Hutchins, 98 N. Y. 56.) Even if admitted, it would fall short of proving that, she was misled thereby. If regarded as a misrepresentation as .to its legal effect, then it was a mistake in law; and, in order to .relieve the wife from its consequences and thrust them upon the mortgagee, the mortgagee must be shown guilty of some lack of good faith inducing the mis^
The judgment must be affirmed, with costs.
All concurred, except Herrick, J., dissenting.
Dissenting Opinion
In this case husband and wife each owned .an undivided part of the real estate. • A mortgage upon the husband’s portion necessarily described all the real estate.
It is conceded that, as a general rule, the joining by a wife with her husband in a mortgage is only effectual to release her inchoate right of dower.
If, howevei-j she is to be considered as a mortgagor, and not merely as signing the instrument to cut off lier right of dower, then as to that undivided portion of the real estate owned by her, and which alone she could mortgage, the mortgage must be treated as if it were a separate and independent mortgage. Like any other mortgage, the consideration for it is open to inquiry. (Baird v. Baird, 145 N. Y. 659; Juilliard v. Chaffee, 92 id. 529.)
The plaintiff stands in the shoes of the mortgagee.
“ The proposition is well established that the assignee of a mortgage takes it subject to all the defenses, legal and equitable, which the mortgagor has against the enforcement of it. by the assignor at the time of the assignment.” (Hill v. Hoole, 116 N. Y. 299; Ingraham v. Disborough, 57 id. 421; Dodge v. Manning, 29 App. Div. 29 ; Trustees of Union College v. Wheeler, 61 N. Y. 88; Westfall v. Jones, 23 Barb. 9, approved in Hill v. Hoole.).
In this case it appears that the appellant received no part of the consideration for the mortgage; as to her property, then, the mortgage was without consideration and is not' enforcible against her.
The defendant Harriet M. Ash, having joined in the mortgage as the wife of Benjamin W. Ash, under ordinary circumstances the presumption would be that she merely intended to release her inchoate right of dower; but it appearing that the real estate covered by the mortgage embraced real estate owned by her as the tenant in common with her husband, thereby causing a doubt as .to whether a mortgage which, under ordinary circumstances, would only be con-
It seems to me, therefore, that as to that portion of the real estate óf- which the appellant, Harriet M. Ash, is the owner, the •judgment should be reversed,
Judgment affirmed, with costs.