Taggart v. Wade — 17 N.Y. St. Rep. 646

Majority

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Mary P. Taggart, Resp’t, v. George Wade, Executor, etc., of Sarah J. Nagle et al., Impleaded With Mary G. Rogers, App’lts.

(Supreme Court, General Term,, Second Department,

Filed June 25, 1888.)

Headnote

1. Mortgage—Foreclosure of—Non-service of wife—Effect of.

The plaintiff joined with her husband in the execution of a mortgage and upon its foreclosure she was not served with process. Held, that the judgment against her was not proper and she had the right to vacate it,

2. Same—When wife can maintain action to redeem.

If the wife was not personally served, she has an inchoate right of dower in the premises. She can maintain a cause of action on this inchoate right to redeem the mortgaged premises during the life of her husband. If the mortgage be a purchase money mortgage the plaintiff was endowed in the equity of redemption. WittmusY. Schack. 105 N. Y., 332 , 7 N Y State Rep., 345. Distinguished.

3. Same—Husband cannot enter an appearance for wife not served WITH PROCESS.

The old chancery rule that a husband could enter an appearance for his wife without service being made upon her has been completely abolished.

Appeal by defendants from an interlocutory judgment, entered at the Kings county special term, adjudging that the plaintiff is entitled to redeem from the mortgage mentioned m the complaint, etc., and appointing a referee to take and state an account of the principal and interest due upon said mortgage, etc.

In 1874, James Taggart, the husband of the plaintiff, being the owner of the fee of a house and lot on Willow street, in the city of Brooklyn, executed a mortgage thereof to Sarah J. Nagle. Default having been made in payment of the interest thereof, Mrs. Nagle brought an action of foreclosure, making the plaintiff a party defendant. The plaintiff, however, was ne^er served with the summons or complaint. Judgment was finally entered in favor of Mrs. Nagle, and the premises were publicly sold by the sheriff, and bid in by the defendant, John B. Wade. Subsequently he. conveyed to the defendant, Mary G. Rogers. Plaintiff demands the possession of the premises from the defendant, Mrs. Rogers, and that she account for the profits thereof while in her possession, and also tendered and offered to pay what, upon such accounting, should remain due upon the principal and interest of said mortgage. This Mrs. Rogers refused to do, and the present action was thereupon brought, and judgment rendered in favor of the plaintiff.

It appeared on the trial that the foreclosure in question was commenced June 1, 1877. Strenuous efforts were made to serve defendant, James Taggart, at his residence and elsewhere in the city of Brooklyn, but at all

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places where inquiry was made, his whereabouts were unknown or denied, and the court being satisfied that ‘Taggart was concealing himself to avoid service, an order for substituted service was made against him July 30, 1877, and service was made upon him by service of the summons and complaint on a person in charge of his residence ■July 30, 1877, and at the same time a copy of the same was mailed to James Taggart as required by the order.

On the third day of September, 1877, upon similar affidavits that Mary P. Taggart, wife of James, could not be found after repeated efforts to make service, and that her whereabouts was denied at her residence, an order for substituted service upon her also was made and filed, and a notice of object of action was made and filed. Yo service appears to have been made under this order.

R. Sidney Sampson, for app’lt, Mary G. Rogers ; Billings & Cardozo, for app’lts, Wade, Franklin & Clifford; A. H. Bartlett, for resp’t.

The plaintiff joined with her husband in the execution of a mortgage, and upon its foreclosure, she was not served with process. The judgment against her was not proper, and she had the right to vacate it. The old chancery rule that a husband could enter an appearance for his wife without service being made upon her, seems to have been completely abolished. White v. Coulter, 59 N. Y., 629 .

If the wife was not personally served, it follows that, as to her, the judgment is void. She still has an inchoate right of dower in the premises. Can she maintain a cause cf action on this inchoate right to redeem the mortgaged premises during the fife of her husband ? If the mortgage be a purchase-money mortgage, the plaintiff was endowed in the equity of redemption. Miller v. Voorhies, 20 N. Y., 412 .

In the case of Simar v. Canaday ( 53 N. Y., 298 ), the court of appeals declared the law settled that “ an inchoate right of dower in lands is a subsisting and valuable interest which will be protected and preserved to her, and that she has a right of action to that end.”

The case of Witthaus v. Sehack ( 105 N. Y., 332 ; 7 N. Y. State Rep., 345), does not change this rule. A wife had been induced by the fraud of her husband to execute a deed. She, after his death, brought her action to set aside the conveyance. The court of appeals held that the estate conveyed was the estate of the husband, and the dower right was inchoate and a mere chose in action, contingent upon ker surviving her husband, and that she, therefore, could mot be a witness to prove the fraud, under section 829 of the

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Code. The question presented in this case was not the wife’s right to protect her possible dower, but what it was. after it had become vested and absolute. It was held to be-a continuation merely of the estate of her husband. Judgment affirmed, with costs.

Pratt, J., concurs ; Dykman, J., not sitting.