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Statement of case.

Blair v. Harrison, 11 id., 384; Stinson v. Summers, 9 Mass., 143.) Defendant is stranger to the release, and, as to him, plaintiff is not estopped by reason of her having joined in the fraudulent conveyance with her husband. (Littlefreed v. Crocker, 30 Me., 192; Harriman v. Gray, 49 id., 537; Pixley v. Bennett, 11 Mass., 298; Blain v. Harrison, 11 Ill., 384; Robinson v. Bates, 3 Met., 40; Taylor v. Fowler, 18 Ohio, 567; Woodward v. Paige, 5 Ohio St., 70; Ketzmiller v. Van Rensselacr, 10 id., 63; Summers v. Babb, 13 Ill., 483; Gore v. Cather, 23 id., 634; Harrsion v. Eldridge, 2 Halst., 392; Richard v. Talbird, Rice Eq. [So. C.], 158; Pierson v. Williams, 23 Miss., 64; Randolph v. Doss, 3 How. Miss., 205; Gray v. McCune, 23 Pa. St., 447–451.) There was no estoppel in pais, as there is no proof or finding that plaintiff intended to mislead. (Lawrence v. Brown, 5 N. Y., 394; Chautauque Co. Bank v. White, 6 id., 236; Jewett v. Miller, 10 id., 402.)

John J. Armstrong for the respondent. Every intendment not absolutely unreasonable will be in favor of judgment. (Grant v. Morse, 22 N. Y., 323.) Plaintiff's uniting in the deed with her husband released her dower. (Green v. Putnam, 1 Barb., 500; Moore v. The Mayor, 8 N. Y., 110.) The conveyances were valid as to the parties and cannot be questioned by plaintiff. (Osborne v. Moss, 7 Johns., 161; Jackson v. Guernsey, 16 id., 189; Babcock v. Booth 2 Hill., 181; Nellis v. Clark, 4 id., 424; Moseley v. Moseley, 15 N. Y., 334; Manhattan Co. v. Evertson, 6 Paige, 457; Den v. Johnson, 3 Has., 87; Meyer v. Mohn, 1 Robt., 333.) The acts and declarations of plaintiff at time of sale estop her from claiming dower. (Smiley v. Wright, 2 Ohio, 506; Ellis v. Diddy, 1 Indiana, 563; Brown v. Bowen, 30 N. Y., 519; Wood v. Secley, 32 id., 105; Fonb. Eq., 163; Manufacturers' Bank v. Hazard, 30 N. Y., 226.) This estoppel attaches itself to the land, and can be asserted in behalf of the grantee of the immediate purchaser. (Hills v. Miller, 3 Paige, 256; Wood v. Seeley, 32 N. Y., 105, and

Opinion of the Court, per FOLGER, J.

cases cited at p. 117.) The judgment in the creditors' suit concludes defendant, and she can claim no title against the purchaser under that decree. (Clemens v. Clemens, 37 N. Y., 59-74.

FOLGER, J. The plaintiff showed that she was the wife of Patrick Malloney in his lifetime; that during coverture, he was seized in fee of the premises, in which she now demands dower; and that before the commencement of her action he departed this life. She thus makes a prima facie case for a judgment in her favor.

The defendant relies upon four grounds to defeat the case made by her.

1st. An estoppel in pais; which is claimed to arise from the plaintiff calling on the defendant Horan and asking him to attend and bid, at the receiver's sale of the premises taking place after the death of her husband; stating that she had no claim thereon, or nothing therein; and from her afterward attending at the sale with Horan and with Conklin the purchaser thereat, and being present at the reading of the terms of sale, in which no mention is made of any right in her.

In the finding of fact on which it is sought to rest this estoppel in pais, there does not appear at least one material element of that kind of estoppel. It is not shown, nor is it necessarily to be inferred from what is found, that the declarations, acts or omissions of the plaintiff, influenced the conduct of Horan or Conklin, or that they took any action in the matter in reliance thereon. This ground therefore, cannot avail the defendant.

2d. An estoppel by record; which is claimed to arise from the judgment in the action in behalf the creditors of the husband of the plaintiff, setting aside the deed from him and her of the premises and the deed of them to her from their grantee, and directing a sale of the premises, in the action in which the judgment was rendered, she being a defendant and appearing and answering; in which judgment there was no recognition of her dower-right, or provision in regard to it, nor

Opinion of the Court, per FOLGER, J.

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anything to show that she claimed its existence. She is bound by that judgment, whatever may be its legitimate effect. The judgment is final and conclusive upon her, as to all matters put in issue and litigated in the action. (Clemens v. Clemens, 37 N. Y., 59.) But as stated above, the matter of her inchoate right of dower was not put in issue and litigated therein. It is claimed that the rule goes further, and that the judgment is final and conclusive upon the parties to it, upon all matters which might have been litigated and determined therein. It is so asserted. (Le Guer v. Gouverneur, 1 Johns. Cas., 436, and note to Sheppard's ed.) The plaintiff in this action might have raised in that action the question that she had a right of dower, as yet inchoate but which might become complete; and might have asked that if it should be found to exist, the judgment should make provision therefor. (Vartie v. Underwood, 18 Barb., 561.) But was she bound to do so ? This would not have been matter in direct opposition to the action in defence of the claim made by the plaintiffs therein; it would have been a quasi admission of the cause of action set up, and a seeking for relief in the judgment which must follow. And when the authorities say that a judgment is final and conclusive upon the parties to it, as to all matters which might have been litigated and decided in the action, the expression must be limited as applicable to such matters only as might have been used as a defence in that action, against an adverse claim therein ; such matters as if now considered, would involve an inquiry into the merits of the former judgment. ( Whitcomb v. Williams, 4 Pick., 228; King v. Chase, 15 N. H., 13) The existence of an inchoate right of dower in the plaintiff, would not have been a defence to the action of the receiver, for a sale of the premises and a satisfaction from the avails of the sale of the judgment debt which he represented. It could not if pleaded and shown, have prevented a judgment substantially that which was rendered. The most which could have been effected would have been to have secured in the judgment an ancillary provision, recognizing and protecting the contingent right. And again : it was a right pre

Opinion of the Court, per FOLGER, J.

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existent the claims and defences there litigated, and paramount to any right of the plaintiff in that action there sought to be enforced. It is to be remarked that the printed case does not show what were the allegations in the complaint in the action brought by the receiver, and that what is here said, is upon the presumption that there were no averments there, raising the question of the right of dower in the present plaintiff. Nor do the findings of fact show that the right of dower was at all called in question, nor that any issue made by the pleadings affected it, nor that any circumstance of the action or of the trial make it necessary to insist upon it. (See Lewis v. Smith, 5 Seld. [9 N. Y.], 502; Yates v. Fassett, 5 Denio, 21.) We are of the opinion that the plaintiff is not estopped by the record in the action brought by the receiver.

3d. The third ground taken by the defendant is, that by joining with her husband in the conveyance to Malloney, the plaintiff released all her right of dower in the premises. And though it is suggested in answer thereto, that the deed having been declared void as against the creditors of the husband, and adjudged to be canceled of record, thereby the title is restored to the husband and the right of dower may again arise: it is replied to this, that a deed though fraudulent as against third persons, and subject to be set aside as void therefor, is yet good and valid as between the fraudulent parties to it, and that the fee of the lands has passed by it, so that the grantor cannot call it back. And if the grantor, the husband, cannot recall the fee, and it has passed from him, then as it is claimed, has the wife by joining in the conveyance, effectually and forever released her right of dower. If it should be conceded that the wife by such act, has effectually released her right of dower to the fraudulent grantee and his assigns, it is not yet determined that she is debarred of her right, as against one claiming the premises from a source other than him or them, and indeed in hostility to him and to them. For what is the effect and operation of a release by a wife of her inchoate right of dower? She cannot, nor can a widow until admeasurement, convey or assign

Opinion of the Court, per FOLGER, J.

her dower. The joining with the husband in his conveyance v is then but a release by the wife of a contingent future right,

and operates against her but by way of estoppel. (Tompkins v. Fonda, 4 Paige, 448.) And it is said that she cannot execute any valid release of her dower in the real estate of her husband in any other way than by joining with him in a conveyance to a third person. (Carson v. Murray, 3 Paige, 483.) The release must at all events, accompany or be incident to the conveyance of another. And the right of dower again attaches, upon a reconveyance of the real estate to the husband, or upon his becoming in any other manner vested in his own right with the title thereto. (Id.) And inasmuch as the release of dower to be operative, must be in conjunction with a conveyance or other instrument which transfers a title to the real estate, it follows that if the conveyance or instrument is void or ceases for any reason to operate, and no title has passed or none remained, the release of dower does not after that operate against the wife, and she is again clothed with the right which she had released. Such is the familiar case of a wife joining with her husband in the execution of a mortgage, and thereby releasing her right of dower. On the satisfaction of the mortgage, her right is restored. And so when a deed has been executed by the husband with full covenants, in which the wife has joined releasing her dower, and afterward the grantee has sued for a breach of the covenants and has recovered full damages, it has been held, the husband dying, that the widow has a right of dower in the premises. (Stinson v. Sumner, 9 Mass., 143.) The ground upon which that decision is placed comports with reason. It is, that the judgment in an action on the covenants in a deed goes upon the ground that nothing has passed by it to the grantee. If nothing has passed by it to the grantee, then the grantor has retained all that which he had when he executed the deed. And the wife of the grantor retains with him all that she had. The

principle which governs is this: The release of an inchoate · right of dower which a married woman makes by joining in

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