Schlesinger v. Klinger — 112 A.D. 853

Majority

p. 853

Adolph Schlesinger, Plaintiff, v. Louis Klinger, Defendant.

First Department,

April 20, 1906.

Headnote

Husband and wife — wife may release inchoate dower directly to her husband after decree of separation — specific performance — when title tendered by divorced husband is good —when contract- of husband that decree of divorce be entered does not invalidate release of dower.

As the statute (Beal Property Law, § 186) allows a wife after á decree of absolute or limited divorce to release her inchoate dower to her husband, such a release, together with an absolute c inveyance by the husband of land's purchased by him after a decree of separation, conveys a perfect title, and a vendee of such lands will be compelled specifically to perform.

Such a release of inchoate dower is good even though the husband stipulated in the action for separation that he was guilty of non-support and that the decree be entered, especially when the court has personally interrogated the wife as to the release of dower and has satisfied itself that the action was not fraudulent or collusive.

Submission of a controversy upon an agreed statement of facts pursuant to section 1279 of the Code of Civil Procedure.

M. Harold Hochdorf, for the plaintiff.

Elias B. Goodman, for the defendant.

By the agreed statement of facts upon which the controversy between the parties to this record was submitted, it appears that the plaintiff contracted to sell and the defendant to buy a parcel of real estate situate in the borough of' Manhattan, in the. city of Kew. York, and at the time named in the agreement for the completion of the transaction, the plaintiff tendered a deed executed by himself alone, and a release of dower made to him by his wife. The defendant refused to take title, claiming that, notwithstanding the release, the premises were still incumbered by an inchoate right of dower. The release tendered was executed by Celia Schlesinger, the plaintiff’s wife, on May 18, 1905, and by its terms she “ remised, granted, released and forever quitclaimed * * * unto the said Adolph Schlesinger (the plaintiff), his heirs and assigns forever, all the dower and thirds, right and title of dower and thirds, and all and every -right, title, interest, property, claim and demand whatsoever in law or equity, of me,, the said Celia Schlesinger of, in and to all and

p. 854

every messuages, lands, tenements and real estate and real property whereof the said Adolph Schlesinger is now seized or possessed oi may hereafter be seized or possessed or acquire, so that I," said ■ Celia Schlesinger, my heirs, executors, administrators' or assigns, 'nor any other person or persons for me, them or any of them have, claim, challenge, or demand any dower or thirds, or any other right, title, claim or demand in and to every and all real property which the said Adolph Schlesinger ever had, now has or may hereafter have, acquire or possess.” This release was under seal. Celia Schlesinger ■on.the 16th day of Hay, 1905, in an action theretofore brought by her against her husband for a limited divorce, procured a, decree of separation in the Supreme- Court of the State of Hew Torb. ■ Two days- after the entry of the decree she executed the release above mentioned. The property which the plaintiff agreed to. sell, to the defendant was acquired by him after the entry of the decree and the execution and delivery to him of the release‘of dower. It is provided by section 186 of the Beal'Property Law.(Laws of 1896,. chap. 541) that “ a woman who Is divorced from- her husband, whether such divorce be absolute or limited or granted in his or her favor by any court of competent jurisdiction, may release to him by an instrument in writing sufficient to pass title to. real estate her Inchoate right of dower in any specific real property theretofore owned by him or generally in all such real property and such as he shall thereafter acquire.” " The terms of this statute being so clear and unambiguous, there can be no doubt that the tender of a. deed - to the defendant. with. a release' of his wife’s inchoate right,of dower, reciting- the facts authorizing her to give' such a release," would have been sufficient to pass-the whole title to the property, the subject of the contract, to the defendant. - '

It is urged, however, that other facts and circumstances appearing in the agreed statement upon which this cause was submitted, impeach the validity of the release. They are contained in an extract from. the, record of -the trial of the action for a limited, divorce between' the plaintiff and his wife. The pleadings in the case are not before us,- nor does it distinctly appear, that the whole record of the trial has been presented to us. It- is shown, however,that when the cause was called for trial it was stated that the ground upon which the.separation was demanded by Hrs. Schlesinger was-

p. 855

cruel and inhuman treatment, and that the parties had consented to a decree of separation, but the husband insisted that such a decree should be entered on the ground of non-support, not wishing to consent to a charge of cruelty. A stipulation was presented to the court, executed by the husband and wife, by which the former acknowledged that his wife had a good, -meritorious and substantial cause of action upon the ground of. non-support, and he "would consent in open court' to the entry of a judgment of separation pursuant to law upon the ground of non-support and to a provision directing and requiring him to pay forty dollars a week alimony, certain debts of the wife, an amount to her counsel as compensation for his services and that the alimony should be secured by the husband’s bond with a sufficient surety; and in the stipulation the wife agreed that upon the granting of the decree to her she would execute a release of dower. When this stipulation was presented to the learned justice sitting at Special Term, he declared that he would have to satisfy himself that’ the wife understood the nature of the agreement and thereupon he proceeded to interrogate her by a series of direct and searching questions relating to the nature of the action she brought against her husband, her demand for a separation, the consequences of such separation, her knowledge of the contents of the stipulation and her understanding thereof in all its details and the effect thereof and particularly as to the import and effect of that part of the stipulation which related to her release of dower, and it was upon her satisfactory answers to all 'the questions put to her by the court of its own motion, that the decree was entered, the terms of the stipulation being embodied therein.

There is nothing whatever to show nor to give rise to a suspicion, that the suit for separation was collusive. The defendant therein admitted in open court the plaintiff’s right to a decree of limited divorce, but desired to save himself from the odium attaching to a charge of cruelty. The release the wife stipulated to give was not without consideration; the consent to the entry of a decree was not fraudulent and it was not collusive. 'It was made in open court, subjected to rigid judicial scrutiny and cannot be said tó be against public policy. The wife being entitled to her decree and having after its procurement"executed the release, that instrument ■ cannot be invalidated simply because of its having been executed in accord

p. 856

aneé with -the previous stipulation embodied in the decree ás one of its, terms-. By that decree' the wife secured the fruits of her litigation ; slie had provided for her an income which was secured to hei by a bond with.a surety and upon which she could realize by compulsory process, if her husband neglected to q>ay her, We think there can be no'question that Mrs. Schlesinger would he estopped from denying the validity of this release, and that it with the deed from the plaintiff would be sufficient to vest full title- hr the defendant. _ The specific questions, propounded are answered in the affirmative and judgment for the plaintiff must, be entered as prayed for by him, without costs to either party as against the other.

O’Brien, P. J., Ingraham, Laughlin and Clarke, JJ., concurred.

Judgment ordered for plaintiff, without costs. Settle order on notice.