Villone v. Feinstein — 132 A.D. 31

Majority

p. 31

Nicola Villone, Respondent, v. Jennie Feinstein, Individually and as Administratrix, etc., of Benjamin Feinstein, Deceased, and Others, Appellants.

Second Department,

April 23, 1909.

Headnote

Beal property — vendor and purchaser — equitable lien—when wife’s dower superior to lien— deficiency on foreclosure.

A vendee of lands may maintain a suit in equity to charge the premises with an equitable lien for the amount paid by him on the contract. But that lien cannot affect superior rights existing at the time of contract.

Thus, the equitable lien is not superior to the inchoate or consummate dower of the vendor’s wife, where she did not join in the contract, and on the foreclosure of such lien the widow’s dower must be admeasured and satisfied out of the proceeds of sale, or the premises must be sold subject to the dower.

In a suit by a vendee to foreclose an equitable lien for moneys paid by him he can look only to the vendor’s estate for the satisfaction of any deficiency. He cannot hold the vendor’s widow and heirs for a deficiency.

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Appeal by the défendants, Jennie Feinstein, individually and as administratrix, etc., and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 30th day of November, 1908, upon the decision of the court rendered after a trial at the Kings County Special Term.

Otto Greenberger [Barnett E. Kopelman with him on the brief], for the appellants.

Nathan Ballin, for the respondent.

This action was brought for the specific performance of a contract of purchase and sale of real property, or in the alternative for damages. On the trial, the plaintiff was permitted to amend the complaint so as to ask that he be decreed to have an equitable lien for the amount paid pursuant to the contract, and for the foreclosure thereof. The action is brought against the vendor’s widow, both individually and as administratrix of his estate, and his heirs at law, infants. The widow was not a party to the contract. The judgment directs the foreclosure of the plaintiff’s lien and the sale of the premises to satisfy it, and a judgment against all the defendants individually for any deficiency.

There can be no doubt that the plaintiff was entitled to an equitable lien for the amount paid on the contract (Elterman v. Hyman, 192 N. Y. 113 ), but as the vendor’s wife did not join in the contract, her inchoate right of dower was not affected by it. She never agreed to release that right. She could not have been compelled to join her husband in a deed, and she cannot be deprived of a right consummate, which, when inchoate, she could not have been compelled to release. While the vendee has an equitable lien for the amount paid on the contract, that lien cannot affect superior rights existing at the time the contract was made. Unless the widow’s dower is admeasured and satisfied out of the proceeds of the sale, the premises must be sold subject to it. It was also error to direct a personal judgment against the widow and the heirs at law for any deficiency. The respondent is unable to assign any reason for such a judgment and manifestly none exists. The plain

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tiff must look to his vendor’s estate for the satisfaction of any deficiency judgment.

The judgment should be modified accordingly, and as thus modified affirmed, without costs.

Hirschberg, P. J., Gaynor, Burr and Rich, JJ., concurred.

Judgment modified in accordance with opinion, and as modified affirmed,' without costs. Settle order before Miller, J.

Cases cited

Elterman v. Hyman 192 N. Y. 113 N.Y. 1908-05-19 p. 32