Riddell v. Riddell — 66 N.Y. St. Rep. 702

Majority

p. 702

Mary E. Riddell, App’lt, v. Le Roy Riddell, Resp’t.

(Supreme Court, General Term, Fifth Department,

Filed April 18, 1895.)

Headnote

1. Dower—Partnership real estate.

A widow of a partner is not dowable in the firm real estate, so long ay the firm affairs remain unsettled.

2. Deed—Knowledge.

In the absence of allegation, proof or offer of proof to establish the fact that a deed, acknowledged and delivered by plaintiff of her dower right, may be avoided by fraud, or for other cause, if actually executed and delivered by her, an instruction that it made no difference whether she knew that the instrument was a deed, is correct.

Appeal from a judgment entered on the verdict in favor of defendant, and from an order denying a motion for a new trial.

Mi Soule, for app’lt; DeM. Page, for resp’t.

The action was ejectment for dower in seven distinct parcels of land, of which the complaint alleged that George Riddell, the husband of the plaintiff, died seized. In respect to three of the parcels, the answer averred that they were partnership property, bought by, and held for the partnership uses of, the firm of George Riddell & Co., which firm consisted of the deceased, George Riddell, and the defendant, Le Roy Riddell; that the business and affairs of the copartnership had never been settled ; and that it was still indebted to divers persons to a large amount. These facts were established by uncontradicted evidence, and the court thereupon dismissed the complaint as to the three parcels of land so situated. This disposition was undoubtedly correct. Fairchild v. Fairchild, 64 N. Y. 471 ; Greenwood v. Martin, 111 id. 423 ; 19 St. Rep. 612 . “So long as the partnership affairs remain unsettled, like all other assets of the firm, its real estate is equitably pledged to creditors, and liable to be absorbed and disposed of in the process of liquidating the firm debts, and satisfying the claims of the respective partners, as against each other. ” Per Ruger^ C. J., in the case last cited. Widows are not dowable in real estate so situated. Sage v. Sherman, 2 N. Y. 417 . Some of the evidence in support of the above-mentioned averments of the answer was objected to by the plaintiff, but they were sufficiently supported by other evidence, of unquestioned competency and equally uncontradicted.

In respect to the remaining four parcels of land involved in the action, the defense was made that the plaintiff had released her dower therein to the defendantby her deed, duly executed, acknowledged, and delivered to him, during the lifetime of her husband. In support of this defense the defendant, produced a deed bearing what purported to be the signature of the plaintiff, and a certificate of her acknowledgment, in due form, signed by a justice of the peace of the county. The defendant testified that, on the date of the deed and its acknowledgment, it was executed, acknowledged, and delivered to him by the plaintiff. The plaintiff was at first disposed to deny that she had executed such a deed, but, upon being shown the signature, virtually admitted that it was hers, and still

p. 703

denied that she ever acknowledged the deed, or delivered it to the defendant. Upon this conflict of evidence, if it was such, the court submitted to the jury the single question whether the plaintiff executed, acknowledged, and delivered to the defendant the deed in question, and, in doing so, remarked to the jury, in substance, that it was immaterial, for the purposes of this action, whether the plaintiff understood the import of the deed of not; that the action was not based upon any theory of fraud or deceit in procuring the deed; that there was no allegation of fraud or deceit in the case; that the action was a strict legal action to enforce the plaintiff’s legal rights, and that if she signed this deed she cannot escape the consequences, in this action, because she did not know its contents. To the charge, including this instruction, there was but a single exception, which presents the only remaining question in the case. The exception was “ to the charge that it made no difference whether the plaintiff knew it was a deed.” The instruction was manifestly correct. There was neither allegation nor proof upon which the plaintiff could avoid the deed, if it was in fact executed by her. Neither was there any offer of proof or request to charge which propounded such a cause of action on the part of the plaintiff. The only question put to the plaintiff which even remotely suggested such a proposition was, when she had virtually admitted her signature, she was asked: “If you ever did sign this deed, did you know what you were signing?” The question was objected to, and, the objection being sustained, no exception was taken to the ruling. There was, in short, neither allegation, proof, nor offer of proof, which tended to support the contention made on this appeal, and apparently on the motion for a new trial, that the deed of the plaintiff might be avoided for fraud, or for any other cause, if actually executed and delivered by her.

We find no exception in the case which points to error in the trial or disposition of the case, and conclude that the judgment and order appealed from must be affirmed.

All concur. So ordered.

Cases cited

Fairchild v. Fairchild 64 N. Y. 471 N.Y. 1876-03-28 p. 702
Sage v. Sherman 2 N. Y. 417 N.Y. p. 702