Taggart v. Wade — 5 N.Y.S. 255

Majority

p. 255

Taggart v. Wade et al.

(Supreme Court, General Term, Second Department.

May 18, 1889.)

Headnote

Mortgage Foreclosure—Redemption by Dowress.

Where a wife is allowed to maintain an action to redeem land sold under foreclosure of a mortgage executed by herself and her husband, on the ground of her inchoate dower interest, and because she had had no notice of the foreclosure proceedings, but defendant is a bona fide purchaser, and there is no evidence from which just terms of redemption can be determined, a new trial will be granted for ■the purpose of supplying such evidence.

p. 256

On reargument. For statement of facts and opinion on first appeal, see 1 N. Y. Supp. 900 . For motion for reargument, see 3 N. Y. Supp. 322 .

Argued before Barnard, P. J., and Pratt, J.

. Martin <& Smith, (George A. Strong, of counsel,) for appellant Mary G. Rogers. Billings & Cardozo, for appellants John B. and George Wade. Franklin A* Clifford A. H. Bartlett, for respondent.

The reargument in this case was ordered because the judgment did not provide for the repairs and improvements made by Mrs. Rogers, and for interest paid by her on a prior mortgage, and for moneys paid for insurance. A further examination of the case suggests great doubt as to the accuracy of the judgment, in principle. The plaintiff has only an inchoate right of dower. She united with her husband in the execution of the mortgage, but was not served with the summons in the foreclosure action. The defendant is a bona fide purchaser, and she and her predecessor in title have been in possession of the property since 1877. The case was tried, it appears, upon the theory that the plaintiff had no standing in her husband’s life-time to bring an action to redeem. The husband was cut off by the foreclosure proceedings, and the case seems to stand as if he had given a deed and his wife had not joined in it. There is no proof whatever from which it can be determined what shall be the just terms of redemption, if the action to redeem is one which the inchoate dowress can maintain. For the purpose of supplying this defect, there should be a new trial, with costs to abide the event.

Pratt, J., concurs.