Campbell v. Ellwanger

This action was brought to redeem the premises described in the complaint from the mortgage executed by Cyrus M. Campbell to James H. Gregory, and for an accounting of the rents and profits, and for dower. On the. 1st day of September, 1856, Campbell purchased of Gregory the premises in question, and on the same day he executed and delivered to Gregory a purchase money mortgage for $32,000. On the 3d day of December, 1857, and after default in the payment of the money due upon the mortgage, Gregory commenced an action for the foreclose thereof, which action proceeded to judgment, and the premises were sold thereunder on the 1st day of September, 1858, to Gregory, the mortgágee, who thereupon re-entered into possession thereof. The defendants are in possession, claiming title under conveyances made by Gregory since the foreclosure of the mortgage. The plaintiff was the wife of Campbell, and was not made a party in the foreclosure action. Campbell died December 4, 1888, and this action was brought in April, 1893. The trial court has found that the plaintiff had an inchoate right of dower in the property, which was not affected by the foreclosure suit, to which she was not made a party, but that her right to redeem the real estate from the mortgage was barred by the statute of limitations. The answers interposed set up both the 10-years and the' 20-years statutes, and the only question presented for our determination is as to whether the plaintiff is'brought within the provisions of either. As we have seen, Gregory was the mortgagee. He purchased the premises upon the foreclosure sale, and entered into possession thereof. The plaintiff was not cut off of her inchoate right of dower by the foreclosure, because she was not made a party thereto. As to her, Gregory became a mortgagee in possession. As mortgagee in possession, Gregory had a right to retain the possession of the premises until his mortgage debt was paid, and until such payment ejectment could not be maintained against him, either by the mortgagor or his widow. Phyfe v. Riley, 15 Wend. 248 -254; Cooper v. Whitney, 3 Hill, 95 -102. But the mortgagor, or one claiming under him, as against the mortgagee in possession, had the right to redeem by paying the mortgage debt. Winslow v. Clark, 47 N. Y. 261 . Could the plaintiff redeem during the life of her husband while her right was inchoate? We think the question must be answered in the affirmative. It was so held in Taggart v. Rogers, 49 Hun, 265 ; 17 St. Rep. 646 . In Simar v. Canaday, 53 N. Y. 298 -303, Folger, J., in delivering the opinion of the court, says: “A wife who executes a mortgage jointly with her husband is nevertheless entitled to dower in the equity of redemption of which her husband is seized, notwithstanding the mortgage, which ‘right is not affected in equity unless she is made a party to the foreclosure. If omitted, she can come in at any time and redeem, notwithstanding a decree and sale in the foreclosure suit.”

“ The inchoate rights of the wife are as much entitled to protection as the vested rights of the widow.” 2 Wash. Real Prop. (4th ed.) 173; Davis v. Wetherell, 13 Allen, 63 ; Newhall v. Bank, 101 Mass. 431 .

Formerly, a person entitled to redeem as against a mortgagee in possession had to bring his action within twenty years. Moore v. Cable, 1 Johns. Ch. 385 ; Slee v. Manhattan Co., 1 Paige, 48. But under § 97 of the Code of Procedure it was held that the action must be commenced within ten years. Miner v. Beekman, 50 N. Y. 337 ; Hubbell v. Sibley, id. 468 . The Code of Civil Procedure (section 379) provides as follows: “An action to redeem real property from the mortgagee with or without an account of rents and profits may be maintained by the mortgagor or those claiming under him, against the mortgagee in possession, or those claiming under him, unless he or they have continuously maintained an adverse possession of the mortgaged premises for twenty years after the breach of a condition of the 'mortgage, or the nonfulfillment of a covenant therein contained.”

Under this provision it has been held that the time to redeem has again been extended to twenty years. Shriver v. Shriver, 86 N. Y. 575 -580. It is claimed, however, that § 379 of our present Code has no application, for the reason that the plaintiff, as the wife of the mortgagor, does not claim under him. The right of dower arises by reason of marriage and by operation of law'. It attaches to lands when the seisin and marriage relations are concurrent. Kursheedt v. Union Dime Sav. Institution, 118 N. Y. 358 ; 28 St. Rep. 933 . But the dower right of the wife is dependent upon the seizin of the husband, and she consequently must claim though him. In Brackett v. Baum, 50 N. Y. 8 -12, Rapallo, J., says: “The widow, though not deriving title from her husband, yet claims under him. * * * Her title is wholly dependent upon that which he acquired. It is only by virtue of his seizin that she can claim, and her title is subject to any claim to which the title he acquired was subject.”

Gregory, as we have shown, entered into possession in 1858. Since that time he and the defendants claiming under him have occupied the premises. Plaintiff’s remedy was by an action to redeem. This she has delayed bringing for thirty-five years. It is our opinion that her claim is barred, both under the ten-years statute of the old Code and the twenty-years statute of our present Code.

The judgment appealed from should be affirmed with costs.

, Dwight, P. J., and Lewis, J., concur; Bradley, J., not voting.