Moriarta v. McRae — 10 N.Y. St. Rep. 631

Majority

p. 631

Hannah Moriarta, App’lt, v. William S. McRae et al., Resp’ts.

(Supreme Court, General Term, Third Department,

Filed September, 1887.)

Headnote

1. Rent—Perpetual rent—Character of.

Where a conveyance is made, reserving a perpetual rent, this rent is an incorporeal hereditament.

2. Dower—Right of in perpetual rent—How defeated in a defeasible

ESTATE.

The reservation of a perpetual rent being an incorporeal hereditament, the wife or widow of the party to whom such rent is due has her right of dower in the same; but where provision is made by which the rent may be discharged by the payment of a lump sum, the interest partakes of a defeasible fee; when the estate is'freed from this charge by payment the right of dower is defeated at the same time.

8. Same—When right of dower defeated by merger.

In a prior conveyance there had been reserved a perpetual rent with the privilege, however, of its being discharged by a lump payment. Peter Moriarta became possessor of the ownership of this rent and conveyed it, without his wife (the plaintiff) joining in the conveyance, to the party who had purchased the land on which it was a charge. Held, that when the same party became possessed of the right of the rent and the land on which it was a charge, the right of rent was merged, the effect of which merger was the same as if it had been discharged by payment, and that, though the right of dower of the plaintiff was not cut oft by her husband’s conveyance, yet, as it could be defeated at any time by the payment of the lump sum, her right of dower was a right in a defeasible fee, and that the merger of the title to the land and the rent charged thereon had the effect

" of defeating the estate in which the right of dower was claimed, and, therefore, defeated the right of dower itself.

EseJo Cowen, for app’lt; P. C. Fort, for resp’ts.

We may assume, without deciding, that as the plaintiff claims, a perpetual rent is an incorporeal hereditament of which a widow is entitled to be endowed. Then, when Judge Bogkes and his wife granted the land reserving a perpetual rent, we may assume that so long as this rent existed Mrs. Bockes, if she survived, would be entitled to dower therein.

But the estate of Judge Bocees in the rent was a defeasible fee. That is it was defeasible by the payment of a certain gross sum; in the case of one lot of §250; in the case of the other $400.

p. 632

When, therefore, Judge Bockes and .his wife conveyed the rent on the first lot to Safford, they conveyed only a defeasible fee therein. And the right to dower of the wife of Safford (if he were married), would be a right only in a defeasible fee. Whenever that fee -should be defeated, according to the terms of the original conveyance, the wife or widow, as the case might be, of Safford, would no longer have any right of dower therein. Because the estate in which she had been entitled to dower or to an inchoate right of dower would have ceased.

The same may be said of the subsequent conveyance to Peter Moriarta and of the rights of his wife or widow, and also of the conveyance to him by Judge Bockes and his wife of the second lot. When Peter Moriarta conveyed the rent in both the lots without having his wife join in the conveyance, she remained entitled to an inchoate right of dower in the defeasible fee of the rents. And that fee might at any time be defeated by the payment of the gross sum by the owner of the land charged, to the holder of the estate in the rent. That such payment was to.be made to the holder of the estate in full, is plainly expressed in the deeds. There was no actual payment of this gross sum. But an equivalent transaction took place. The owner of the rent became by purchase the owner of the property on which the rent was charged

And, furthermore, it became absurd to say that Andrews, the owner of the land, was to pay to himself as the owner of the rent, the gross sum, upon the payment of which the rent was to be defeated. The plaintiff might take his position that this transaction had rendered the redemption impossible, because Andrews could not pay to himself. But this would not be reasonable. For the parties could easily have arranged that the owner of the land should first redeem and then convey. The result would be practically the same with the present condition of things. We may illustrate this by supposing that the value of the first lot as agreed between Andrews and Mallery, the owner of the land, if free of rent, was $1,000. Now, the sum needed to redeem the rent of that lot was $250. Therefore, Andrews would pay the owner for the land $750. This would be the same as if the owner, Mallery, had first redeemed and then received from Andrews $1,000.

The plaintiff insists that no such transaction could justly deprive her of her right of dower. It is true that it could not deprive her of anything she had. But the right of dower was never of a higher character than that of her husband’s estate in the rent. That estate was always defeasible. So was her dower.

This conclusion, it will be seen, depends on the circum

p. 633

stance that the estate in the rent was defeasible, and was practically defeated.

We have no occasion to decide what the rights of the plaintiff would have been if the estate in the rent had not been defeasible when assigned by her husband; and if in other respects the facts had been as they are in the present

C8I1SG0

The judgment should be affirmed, with costs.

Landon and Williams, JJ., concur.