Argued June 9, 1886
Decided October 5, 1886
William N. Dykman for appellant.
James M. Baldwin for respondent.
The joinder by a married woman with her husband in a deed or mortgage of his lands, does not operate as to her by way of passing an estate, but inures simply as a release to the grantee of the husband, of her future contingent right of dower in the granted or mortgaged premises, in aid of the title or interest conveyed by his deed or mortgage. Her release attends the title derived from the husband, and concludes her from afterward claiming dower in the premises as against the grantee or mortgagee, so long as there remains a subsisting title or interest, created by his conveyance. But it is the generally recognized doctrine that when the husband's deed is avoided, or ceases to operate, as when it is set aside at the instance of creditors, or is defeated by a sale on execution under a prior judgment, the wife is restored to her original situation, and may, after the death of her husband, recover dower as though she had never joined in the conveyance. ( Robinson v. Bates, 3 Metc. 40; Malloney v. Horan, 49 N.Y. 111; Kitzmiller v. VanRensselaer, 10 Ohio St. 63; Littlefield v. Crocker, 30 Me. 192.)
In short the law regards the act of the wife in joining in the deed or mortgage, not as an alienation of an estate, but as a renunciation of her inchoate right of dower in favor of the grantee or mortgagee of her husband, so far as respects the title or interest created by his conveyance. It follows therefore that her act in joining in the conveyance, becomes a nullity whenever the title or interest to which the renunciation is incident, is itself defeated. (Scribner on Dower, chap. 12, § 49.) The wife's deed or mortgage of her husband's lands, cannot stand independently of the deed of her husband when not executed in aid thereof, nor can she by joining with her husband in a deed of lands to a stranger, in which she has a contingent right of dower, but in which the husband has no present interest, bar her contingent right. ( Marvin v. Smith, 46 N.Y. 571.) These principles are we think decisive of this case. The plaintiff's mortgage has been defeated by the paramount title, derived under the execution sale. It was the husband's mortgage, and not the mortgage of the wife, except for the limited and special purpose indicated. The lien of the mortgage, as a charge on the lands of the husband, has by the execution sale, been subverted and destroyed. Nor can the security be converted into a mortgage of the widow's dower, now consummate by the death of her husband. This would be a perversion of its original purpose. Her act in signing the mortgage, became a nullity on the extinguishment of the lien on the husband's lands. If on the execution sale there had been a surplus applicable to the mortgage, it might very well be held that the widow could not be endowed therein, except after the mortgage had been satisfied.
The surplus would represent in part the mortgaged premises. (See Elmendorf v. Lockwood, 57 N.Y. 322.)
We think the authorities require a reversal of the judgment.
Judgment reversed and complaint dismissed, with costs.