Taggart v. Rogers — 24 N.Y. St. Rep. 279

Majority

p. 279

Mary P. Taggart, Resp’t, v. Mary R. Rogers et al., App’lts.

(Supreme Court, General Term, Second Department,

Filed May 18, 1889.)

Headnote

Mortgage—Foreclosure—Redemption by doweress—New trial—When GRANTED.

Where, in an action by a wife to redeem land sold under foreclosure of a mortgage executed by the plaintiff and her husband, on the ground of her inchoate dower interest, and because she was'not served with the summons in the foreclosure action, it appears that the defendant is a tona fide purcha’ser, and there is no evidence, whatever, from which it can be determined what shall he the just terms of redemption, in case the action to redeem is one which an inchoate doweress can maintain, a new trial will be granted for the purpose of supplying the evidence.

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 the pay

p. 280

ment of the interest thereof, Mrs. Nagle brought an action, of foreclosure, making the plaintiff a party defendant. The plaintiff, however, was never served with the summons or complaint. Judgment wasfinally 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 demanded 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 of 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.

Martin & Smith, for def’t and app’lt, Mary G. Rogers; Billings & Cardozo, for def’ts and app’lts, John B. and George Wade; Franklin & Clifford and S. Bartlett, for resp’t, Mary P. Taggart.

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, and was not served with the summons in the foreclosure action.

The plaintiff 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 thee inchoate doweress can maintain.

For the purpose of supplying this defect, there should be a new trial, with costs to abide the event.

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