Hinchliffe v. Shea

Headnote

Dower — effect of a married woman’s joining in a mortgage with her husband — when it binds herr subsequently rested dower estate.

March 25, 1878, one Martin Shea and his wife, the defendant, executed a mortgage on certain real estate, then owned in fee by the husband, to secure the payment of a note given by him. April 8,1882. the premises were conveyed to Anne Horgan by the sheriff, in pursuance of a sale had in 1881, under an execution issued upon a judgment against the husband docketed in 1874 The husband died April 8, 1882. April 26,1883, Horgan conveyed the premises to the defendant. ,

In an action to foreclose the mortgage the judgment directed that the dower interest of the defendant in the real estate, which became vested in her on the death of the husband, should be sold.

Held, no error.

Payne v. Becker ( 87 N. Y., 158 ) followed

Appeal from a judgment in favor of tbe plaintiff, entered upon tbe trial of tbis action by tbe court without a jury.

On or about March 25, 1878, tbe firm of Shea & Scbnerr made their promissory note to tbe order of Martin Shea for $3,000, payable in one year from date. Martin Shea indorsed tbe note to Shaw, Hinchliffe & Penrose. At tbis time Martin Shea was seized in fee of tbe premises described in tbe complaint, and as collateral security for tbe payment of above note be executed to Shaw, Hinchliffe & Penrose the. mortgage set forth in tbe complaint. His wife Margaret Shea, tbe appellant, at tbe time bad no interest in tbe premises other than an inchoate right of dower} she joined with her husband in tbe mortgage. On June 8, 1874, a judgment was docketed in tbe office of tbe clerk of Kings county against Martin Shea in favor of P. K. Horgan and another. The premises were, in tbe year 1881, sold under tbe execution issued under tbis judgment, and on April 3, 1882, they were conveyed by tbe sheriff of Kings county to Anne Horgan. Martin Shea died April 8,1882. Anne Horgan, on or about April 26, 1882, conveyed the premises to tbe defendant and appellant Margaret Shea, and she is now in possession under tbe deed from Anne Horgan.

Tbe facts are not disputed, and tbe only question in tbe case is whether tbe plaintiff, by virtue of tbe mortgage described in tbe

complaint, has any lien on the premises. The judge found that the vested dower interest of the defendant was subject to the mortgage, and. a judgment directing the sale of such interest was ordered.