Sumner v. Sumner

217 A.D. 163 | N.Y. App. Div. | 1926

Per Curiam.

We are of the opinion that the Statute of Limitations contained in section 46 of the Civil Practice Act does not apply to this action. Assuming, as we must, that the allegations of the complaint are true, the defendant did not become, upon the delivery of the deed, a tenant by the entirety, nor upon her husband’s death, take the whole title in fee as survivor of such tenant. She had nothing but a hen upon the property to secure the indebtedness of $1,000 to her. That still remained her status upon her husband’s death. In other words, her right or interest in the property must be determined by the facts alleged in the complaint, not according to the face of the deed, and the limitation applicable must be determined upon those facts. It is not alleged in either the complaint or the affidavits used upon the motion that the defendant was in possession as mortgagee. Such possession will not be presumed, as the complaint and affidavits stand. She was, therefore, merely a mortgagee, but not a mortgagee in possession within the meaning of that section because, during the lifetime of her husband, she had no independent possession apart from that of her husband (Berkowitz v. Brown, 3 Misc. 1, 8), and, after his death, she could not, merely by remaining in possession, become such mortgagee in possession, as such possession was not with the consent, either express or implied, of the owners of the equity of redemption. (Barson v. Mulligan, 191 N. Y. 306; Becker v. McCrea, 193 id. 423.)

No cause of action, therefore, accrued until the mortgagor’s death in 1924, when defendant took possession of the property. An action to redeem may be maintained against the mortgagee whether in or out of possession. (Reich v. Cochran, 213 N. Y. 416, 428.) There seems to be no express limitation upon an action to redeem from a mortgage except that provided by section 46 of the Civil Practice Act, where the mortgagee has been in possession for twenty years after the breach of a condition, etc. Where, therefore, the mortgagee is not in possession, that section has no application.

The judgment and order, therefore, should be reversed on the law, with costs, and the motion to dismiss the complaint denied, with ten dollars costs.

Kelly, P. J., Rich, Manning, Young and Lazansky, JJ.† concur.

Order granting defendant’s motion for judgment dismissing complaint, and judgment entered thereon, reversed on the law, with costs, and motion denied, with ten dollars costs.