Majority
p. 698Andrew J. Wightman, Pl’ff, v. Henry Schliefer, Def’t. (Supreme Court, General Term, First Department, Filed March 31, 1892.)
Headnote
Dower—Release.A release of dower by a wife directly to her husband will not divest dower so as to enable the husband to convey a good title by his sole deed. If effectual at all, on the delivery of such release the husband becomes owner of the property and the wife becomes entitled to her dower therein.
Submission of controversy on agreed facts, pursuant to § 1279 of the Code.
The plaintiff and defendant entered into an agreement in writing whereby defendant agreed to sell to plaintiff certain real estate in New York city, free from all incumbrances, except as to a mortgage. Defendant tendered a deed made by defendant, containing full covenants, conveying to plaintiff said premises free and clear of all incumbrances except said mortgage, and at thé same time also tendered a release of dower in said premises made to the defendant by his wife prior to the date of aforesaid deed. Plaintiff refused to take title, claiming that the premises were incumbered by defendant’s wife’s dower, in that the release of dower should have been made to defendant’s grantee, and was void if made direct to defendant, or that defendant’s wife should have joined in the deed to plaintiff, otherwise defendant could not convey full and clear of all incumbrances.
J. E. Pidgeon, for pl’ff; Q. E. Bruce, for def’t.
Assuming that the release from the defendant’s wife to the defendant, executed Novémber 13, 1890, was at all effectual, on the delivery of that release the defendant became the owner of the property, and his wife became entitled to her dower therein. The right of dower does not depend upon any agreement between the parties, but is an incident of an estate in fee simple. The moment such an estate vests in'the husband, the wife’s inchoate right of dower attaches thereto, and such right of dower existed at the time of the attempted conveyance by the defendant to the plaintiff.
The plaintiff is therefore entitled to judgment, with costs.
Yan Brunt, P. J., O’Brien and Ingraham, JJ., concur.