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Smith v. Fellows

41 N.Y. Super. Ct. 36 9 Jones & S. 36 Court N.Y. Super. Ct. Decision date 1876-03-20 English

Contents

Majority

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JEANNETTE SMITH, Plaintiff and Respondent, v. JEROME B. FELLOWS, Defendant and Appellant.

Headnote

I. OLOTJD ON TITLE.
1. Action to behove.
(а) When it lies.
1. To cancel a mortgage void by reason of facts which can only be established hy extrinsic evidence.
(б) By whom.
1. Semble. By a married woman who has joined in the. execution of the mortgage.
II. PRINCIPAL AND AGENT.
1. Husband and Wipe.
{a) Authority, proof from,
1. Relationship. No authority in the husband as agent can be inferred, implied, or presumed from the relationship.
2. Possession bt the husband op ait instf.ument made bt the wipe to A person other than the husband, or in blank.
(a) When in blank, it confers no authority to fill the blank.
(5) When not in blank, it confers authority to deliver or dispose of the instrument solely in conformity with its precise terms.
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1. A fortiori he has no authority to change the name of the grantee, mortgagee, &c.
3. Bona-fide holder—Notice, what constitutes.
1. One taking such an instrument from the husband is chargeable with constructive notice that the husband’s authority does not exceed that conferred by the terms of the instrument itself.
(a) The existence of the marital relations calls for the exercise of greater care than if they did not exist.
HI. INSTRUMENTS IN BLANK.
1. When void.
(«) An instrument required by law to be under seal, if executed in blank as to the name of the grantor, mortgagee, obligee, covenantee, &c., as the case may be, is void.
3. Filling of blank.
(a) Mere delivery of such an instrument does not authorize the party to whom it maybe delivered, to fill up the blank.[1]
1. This, although the delivery was for a valuable consideration.
3. Alteration, material.
(a) Made in such an instrument without the consent of the party executing it, renders it void.
IV. CLOUD ON TITLE.
1. Action to remove.
a) Defense to, what is not.
1. Defect in plaintiff’s title is not, when.
1. When the cloud sought to be removed is a mortgage made by the plaintiff and her husband to the defendant, the fact that she before executing the mortgage received the title by deed direct from her husband, which deed is fraudulent and, void as against creditors of the husband, constitutes no defense, although the defendant made advances to the husband on the faith of the mortgage.
V. APPLICATION OF ABOVE PRINCIPLES.
1. S. being in possession of certain real estate claiming seizin in fee in her own right, as of her own separate estate, with her husband executed to one K. a bond and mortgage to secure four thousand dollars, and delivered the same to her husband to take to K., and obtain from him a loan to her thereon of four thousand dollars. The date of the instrument, and the date of the day of payment, were left blank. K. refused to make the loan. The husband then obtained from F., the defendant, a temporary loan
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for his own purposes, leaving the bond and mortgage as security. Thereupon, at the defendant’s suggestion, K.’s name was erased, and defendant’s substituted, and the dates were filled in. Defendant subsequently made other advances to the husband upon the bond and mortgage. All of these transactions with the defendant were without the knowledge of plaintiff, and without, authority from her, other than such as the husband’s possession of the instruments and relationship to her might afford, and she did not in any way afterward ratify the transaction. The defendant claims as a defense that the title of S. was derived through a deed executed directly to her by her husband, and that the deed was fraudulent and void as against the husband’s creditors.
Before Speir and Sanford, JJ.
Decided March 20, 1876.
HELD,
1. The plaintiff might maintain an action to set aside the mortgage as a cloud on her title.
2. That the judgment setting aside the mortgage as constituting such a cloud was correct.
This is an appeal from a judgment, rendered at special terra, April, 1873, directing the cancellation and discharge, as against the plaintiff, a married woman, of a mortgage on her separate real property, and perpetually enjoining the defendant, the mortgagee, from instituting any suit or proceeding thereon, or on the bond therein mentioned against her.
The facts of the case, as they appear in evidence, and are found by the court, are in substance as follows :
On the twenty-third day of May, 1872, the plaintiff, who was the wife of John W. Smith, joined with her husband in the execution of a written instrument, without date, in which was recited the indebtedness of the plaintiff to one Bichard Kelly, in the sum of four thousand dollars, secured to be paid by her certain bond or obligation to said Kelly in the penal sum
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of eight thousand dollars, and by which, for the better securing the payment of such indebtedness, certain real estate, consisting of a lot of land and dwelling-house, of which she was the occupant, claiming seizin in fee, in her own right and as of her own separate estate, was, or purported to be, mortgaged to the said Kelly. No such indebtedness, in fact, existed, but concurrently with the execution of such mortgage, a bond to Kelly, without date or day of payment, in the penal sum of eight thousand dollars, and conditioned for the payment to him of the sum of four thousand dollars, as recited in the said mortgage, was executed by the plaintiff. The bond and mortgage were there upon placed by her in the hands of her husband, to be taken to Kelly, for the purpose of inducing him to lend money thereon to her. This purpose was not accomplished. Negotiations to that end were opened, but Kelly was unwilling to lend, unless a part of the money loaned could be applied in payment of a debt due from the husband to a bank with which Kelly was connected.
The papers remained in Kelly’s hands, until the twenty-ninth day of May, when they were withdrawn by the plaintiff’s husband, who thereupon carried them to the defendant, and procured from him a temporary advance of one thousand and seventy-five dollars, which he required for his own purposes, leaving the bond and mortgage as security therefor. The name of Richard Kelly, as mortgagee, was thereupon erased, and that of Jerome Fellows, the defendant, was inserted in its stead. The date of the instrument as it now stands,—May 29th, 1872—and the day of payment—May 29th, 1873—which had been left blank, when it was originally executed and acknowledged, were also filled in. This was done by the attorney of the husband in the presence of defendant, and upon a suggestion that with Kelly’s name there, the mortgage
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would be of no avail to Mm. Other advances were afterwards made by the defendant to the plaintiff’s husband, which are also claimed to be secured by the mortgage. The alterations above referred to were made, and the bond and mortgage were delivered to the defendant, without the knowledge of the plaintiff, and without authority from her ; nor did she in any way afterwards ratify the transaction.
This action was commenced on the first day of August, 1872, to restrain a threatened enforcement of the mortgage, and to have the same avoided and set aside, as against the defendant.
Hatch & Van Allen, attorneys, and A. Oakey Hall, of counsel for appellant, upon the questions discussed by the court, urged :
I. Mrs. Smith, the plaintiff, did not show an equitable title to the premises in herself, and the evidence showing that the deed from Smith to her was fraudulent as to creditors, and without consideration, the title was in equity held by Smith. The deed was fraudulent as to existing and subsequent creditors, and was directly attacked by the answer. It being directly from the husband to the wife, and the consideration not being paid by her and out of her separate estate, the deed can not be sustained, even in equity, and this independent of the question of fraud (Case v. Phelps, 39 N. Y. 164 ; Savage v. Murphy, 8 Barb. 75 ; King v. Wilcox, 11 Paige, 589 ; 17 Barb. 103 ; 26 Id. 419). It follows that the defendant’s exception to the refusal of motion to dismiss complaint was good (Ward v. Dewey, 16 N. Y. 25 ).
II. At most, the plaintiff was the owner of only a mortgage interest in the land. At most, there was only a consideration of seven thousand dollars for a house worth fourteen thousand dollars (Robinson v. Cropsey, 6 Paige, 480 ; Boyd v. Dunlap, 1 Johns. Ch.
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478 ; 4 Bard. 382 ; 29 Id. 28; 18 Wend. 366 ; 46 Barb. 149 ; 13 How. U. S. 97 ; 8 Bos. 99). Hence the exception supra was well taken, for she was not the equitable owner.
III. The authority of the husband to fill up the blanks as to dates, and insert defendant’s name as mortgagee, &c., was sufficient (Knapp v. Maltby, 13 Wend. 587 ; Woolley v. Constant, 4 Johns. 54 ; cases are collected in Chauncey v. Arnold, 24 N. Y. 330 ).
IT. Even if the change in names was not authorized, the plaintiff would still not be entitled to a surrender and cancellation, except on payment of the amount due; the mortgage would be valid in equity, having a consideration to support it, and the money going to the man Smith, as intended by her (De Pierris v. Thorne, 4 Bos. 266 ; Willard’s Eq. 438-444).
V. Mrs. Smith is bound by her agent’s act, though in excess or abuse of his authority, because it was within the general scope of the business he is employed to transact (East N. Y. & J. R. R. v. Lighthall, 6 Rob. 407 ; 36 How. 481 ).
VI. It is no part of the policy of law, while increasing the right of a married woman, in the use and disposition of her property, to place her in a position to take advantage of the neglects and frauds of her husband and agent. She can not entrust him with property, and hold him out to the world as her agent in respect to it, and then profit by his frauds and omissions in attending to it, and fasten liabilities for his wrong-doing and neglects on innocent third persons (Adams v. Mills, 38 Sup. Ct. 25 ). Bo court should protect an effort by a woman and her husband to cheat one who has honestly loaned them a large sum of money, and impose upon him expensive litigation. Points were also submitted as to the admission of con
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versations between the plaintiff and her husband when the defendant was not present, as to the admission of a question calling for a mental result; and as to the ratification by the plaintiff of her husband’s acts.
Nelson Smith, attorney, and of counsel for respondent, urged :
I. The plaintiff’s possession of the premises with a claim of ownership is sufficient to entitle her to maintain this action, possession being in all cases evidence of ownership.
II. This is especially so here, where the defendant seeks by the mortgage to obtain whatever right and title the plaintiff had to the premises, under a mortgage alleged by the defendant to have been given by her. If she had given it she would be estopped from denying that she owned the premises (Kidd v. Conway, 65 Barb. 158 ).
III. Whether or not the plaintiff was actually the owner of the premises can not in this action be determined, as the defendant has no standing or right to try that question here, especially so as the defendant does not show that he has any right to the premises, which can be tried in this action, except such as he claims directly against the plaintiff. What right John W. Smith, the plaintiff’s husband, may have in the premises is not in issue in this action ; and even if he were the owner, the plaintiff’s inchoate right of dower would be sufficient to entitle her to maintain this action. When a married woman executes a mortgage on real estate, she is estopped from denying that it is her separate estate (Kidd v. Conway, 65 Barb. 158 ).
IY. The old rule that a deed directly from a husband to his wife was void at law, has been so far modified by statute and the more recent decisions, that the presumption now is that it is good. The rules of equity, which always allowed circumstances to be shown by which the validity of such a conveyance
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might be established, have of late been so far invoked as to make such deeds valid, even at law (Rawson v. Penn. R. R. Co., 48 N. Y. 212 ; Lockwood v. Cullin, 4 Robt. 129 ; Leitch v. Wills, 48 N. Y. 585 ; Garuty v. Haynes, 53 Barb. 596 ; Hunt v. Johnson, 44 N. Y. 27 ; Shepard v. Shepard, 7 Johns. Ch. 57 ; Tisdale v. James, 38 Barb. 523 ; Livingston v. Livingston, 2 Johns. Ch. 537 ; Simmons v. McElwain, 2 6 Barb. 419 ; Kelly v. Campbell, 2 Abb. Ct. App. Dec. 492 ).
Y. The alteration of the mortgage avoided it; it was not,, when altered, the plaintiff’s deed, act, or instrument (Lewis v. Payn, 8 Cow. 72 ).
YI. Ho authority was ever given by the plaintiff to make the alteration, or to put anybody else’s name in the mortgage as the mortgagee in the place of Kelly’s, and no authority was ever given by the plaintiff that the mortgage might be used for any other purpose except tó obtain a loan from Kelly to herself.
YII. It is well settled that the alteration of an instrument avoids it (Lewis v. Payn, 8 Cow. 72 ; Herrick v. Malin, 22 Wend. 388 ; Star v. Lyon, 5 Conn. 540 ; Bank v. Douglas, 31 Id. 181). It is held that blanks in a deed constitute a material part of the instrument itself, and can not in the absence of the maker be filled by parol authority, because authority to make a deed must be given by deed (Burns v. Lynde, 6 Allen, 305 ; Bassford v. Pearsall, 9 Id. 387 ; Hubbell White v. McMorine, 6 M. & W. 200). But here there was no authority, parol or otherwise, and the blanks having all been filled up in the mortgage which the plaintiff signed, no authority could be implied or presumed.
VTII. The plaintiff is entitled to maintain this action upon several grounds. 1. Upon the principles applicable to actions to remove cloud upon title, on the ground that the mortgage as recorded is prima facie a valid lieu upon the plaintiff’s premises, but stands
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impeached by the evidence aliunde that it is not her deed. 2. Upon the principle that equity may always be invoked to cancel an instrument which is prima facie a valid lien on land, and where extrinsic evidence has been offered to show its invalidity ( Willard's Eq. Jur. 302-304; Hamilton v. Cummings, 1 Johns. Ch. 517 ; Apthorp v. Comstock, 2 Paige, 482). And relief in such cases will be given, even though the party may have a remedy at law. 3. Equity will give relief to prevent circuity of action, and to quiet the apprehensions of the complainant that he may be annoyed in the future (Willard’s Eq. Jur. 304). 4. The suit is maintainable on the principle applicable to bills guia timet (1 Mad. Ch. 178; Pettit v. Shepard, 5 Paige, 493 ; Willard's Eq. Jur. 304, and title Quia timet).
IX. He also urged the following point:—Error in THE ADMISSION OR EXCLUSION OF EVIDENCE AT THE TRIAL DOES NOT CALL FOR A NEW TRIAL AS MATTER OF COURSE, WHERE FROM THE WHOLE EVIDENCE IT IS APPARENT THAT THE DECREE APPEALED FROM IS CORRECT, AND THAT JUSTICE HAS BEEN DONE. This principle was applied to equity cases by the court of appeals (Marvin v. Marvin, 2 Abb. Pr. N. S. 102; Lansing v. Russell, 2 Comst. 563). In equity cases a party never has a new trial as a matter of course, but a second trial was always in the discretion of the court, and was granted only when the ends of justice required it. This is the rule still (Marvin v. Marvin, supra; Clark v. Brooks, 2 Abb. Pr. 385 ; S. C., 2 Daly, 159 ; Clayton v. Garrington, 33 Barb. 145 ; 2 Danl. Ch. Prac. 1307 ; Lansing v. Russell, 2 Comst. 563). Even the improper admission or rejection of testimony, or other errors in point of law, are no grounds for granting a new trial in equity cases, except the court can see upon the whole case that injustice has been done (Clark v.
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Brooks, 2 Daly, 159 ; Lansing v. Russell, supra; Platt v. Platt, 2 N. Y. S. C. Rep. 25, 52). A bill of exceptions is a thing unknown in a court of equity, and an exception in an equity case availeth nothing. The question always is upon appeal, whether upon the whole case, justice has been done (Exp. Storey, 12 Pet. 339 , 340).

The right of the plaintiff to maintain this action, upon the facts alleged in the complaint, and found by the learned judge before whom the trial was had, does not seem to me to admit of question. She brings the suit to remove the apparently valid lien of a mortgage, alleged to be void by reason of facts which can only be established by extrinsic evidence. The mortgage constitutes a cloud on her title, and she has reason to apprehend its threatened enforcement. Belief is always accorded in equity under such circumstances, on the principle of preventing irreparable injury, and the party aggrieved need not wait till attacked, but may initiate measures to secure redress.

The case, therefore, presents the naked question of the validity or invalidity of the mortgage, as a security to the defendant, for the advances made by him ; and the answer to that question depends upon the nature and extent of the authority, real or apparent, with which the plaintiff’s husband was clothed, when he assumed to act as the agent of his wife, and to-deal with her property. Only the established and familiar rules which regulate and govern the relation of principal and agent need to be invoked and applied. Wo authority, on his part, to represent and act for her, except to the extent and in the purpose of procuring for her a loan from Bichard Kelly, on the security of the bond and mortgage as originally executed, is disclosed by the evidence, unless such authority may be

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inferred from his- marital relations, and his possession of the documents. We are therefore to inquire whether those relations, coupled with possession, involve the implication of such authority as was attempted to be exercised.

The legislature of this State has, for more than a quarter of a century, by several successive enactments, steadily declared and adhered to the doctrine that married women are entitled to the same full and complete authority over their own separate estates, whether real or personal, which they could exercise if unmarried ; and has effectually deprived their husbands, as such, of any right of interference therewith. It is, therefore, only in the capacity of an agent for his wife, that a husband can assume to- enter into any engagements with respect to her property, at all obligatory upon her ; and all persons dealing with him while acting in the capacity of agent for her, are bound by the very existence and nature of the intimate, confidential, and delicate relations existing between husband and wife, to exercise, if anything, even greater care and caution in ascertaining the precise extent of, and the precise limitations upon, his derived authority, than there would be occasion for, if no such intimate, confidential, and delicate relations existed.

The general rule is that a special authority must be strictly pursued. The acts of a general agent, within the general scope of his apparent authority, bind his principal, even when not in accordance with private instructions ; but no act of an agent, for a special purpose, in excess of the authority conferred upon him, can affect his principal’s property or rights.

Mo agent can by any act or representation of his own, enlarge the powers with which he is entrusted (N. Y. Life Ins. Co. v. Beebe, 3 Seld. 364; Stringham v. St. Nicholas Ins. Co., 5 Abb. Pr. N. S. 80).

The fact that the agent is the husband of the prin

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cipal is wholly immaterial in this regard (Deming v. Bailey, 2 Robt. 1).

These general rules, applied to the case under consideration, effectually dispose of it in favor of the plaintiff. John W. Smith was the plaintiff’s agent to procure for her a loan from a particular person, upon the security of a particular instrument, executed by her in favor of that person. When his negotiations to that end failed and were concluded, his agency ceased. His subsequent action was his own, not hers. He bad exhausted his authority, and the mortgage was functus officio. He had no more right to strike out the name of the party in whose favor the mortgage was originally drawn and executed, and to insert another name as mortgagee in its stead, than he would have had to prepare a new mortgage, and sign his wife’s name to it. From the moment of such alteration, the instrument ceased to be his wife’s deed. She may have had special reasons for her willingness to incur the obligation of a loan from a creditor of her own selection, which would be wholly inapplicable in the case of another. She may have relied upon her knowledge of his disposition and temper—his lenity and forbearance. She was dealing with her homestead. In assuming to borrow a less amount of a different creditor, upon a security never executed nor acknowledged by her, her agent violated both the letter and the spirit of Ms instructions, and the defendant, with whom he,dealt, was bound, at his peril, to take notice of the facts.- Indeed, the facts -were all within his actual cognizance.

An examination of a few adjudged causes, some of which are closely analagous to that ndw under consideration, will illustrate fully the principles involved, and their application to the present case.

In Hoffman v. Treadwell (2 N. Y. Supreme Ct. R. 57), which was an action brought by a married woman

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to set aside and avoid a warranty deed, executed by her to a creditor of her husband and son, and which had been placed by her in the hands of her husband, at his request, without any restrictions as to its use, or directions as to what he should do with it, a judgment for the defendants was reversed on appeal, upon the ground that the husband had no authority to deliver the deed upon any other than the terms prescribed on its face. That its delivery to, and possession by him, accredited him with authority to deliver it to the grantee named in it, upon payment to him, as her agent, of the consideration which it expressed, but not otherwise ; and that no larger or other power could be inferred from its possession, than its precise terms imported. The deed was handed over by the husband to the defendants in the suit, the grantees named therein, in satisfaction of a pre-existing indebtedness due to them from a partnership firm composed of the husband and son, and the defendants, as grantees, had paid off an existing mortgage upon the premises conveyed, executing a new mortgage of the same amount, the proceeds of which had been applied to such payment. The court observed that it would, of course, be necessary to protect the defendants, by a proper decree, from the operation of the mortgage thus given by them, and which had enured to the benefit of the plaintiff; but it was held that against her, the conveyance to them was invalid ; that it was their duty, in dealing with her agent, to ascertain the extent of his powers, and that, in omitting to do so, they acted at their peril; that the property was hers, and that she was entitled to be treated in regard to it, as if she were unmarried ; that, if there be any distinction in such a case, it would require a more rigorous enforcement of the general rule, because “the closer the tie, the greater the liability to abuse, and hence the greater the necessity for the vigilant application of that protection which the
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courts have applied to the relation of principal and agent, and have thrown around the separate estates of married women.”

Again in Bank of Albion v. Burns ( 46 N. Y. 170 ), where a mortgage executed by a wife was given to secure the bond of her husband, and was delivered by him to his creditor, under an agreement that it should be held as collateral security for the payment of all claims and demands on which he then was, or might thereafter become liable, it was held that in the absence of evidence dehors the mortgage, tending to show that such was the wife’s intent, the mortgage could not be treated as a continuing guaranty, and that a subsequent payment of the existing debt operated to discharge the lien, notwithstanding that advances were thereafter made by the creditor on the faith of the security which it was supposed the mortgage and the husband’s agreement afforded. The court declared that the agency to be inferred from the possession of the mortgage must have respect to and be limited by the terms of that instrument; that it could not be extended by implication ; that the most that could be inferred was that the husband had authority to bind the property of the wife by the delivery of the mortgage to the mortgagee for the sum named, payable at the times and in the manner specified in the bond to which it was collateral.

If it be urged that in neither of the cases cited was any specific advance made on the faith of the instrument, we find the answer in the fact that the principle upon which bona fide holders for value are protected, is founded upon the absence of notice, and that, in the present case, as in those cited, the plaintiff had both constructive and actual notice of the wife’s title, and that in such case, the payment of value affords no protection, and creates no superior equity.

Thus in Craver v. Wilson (Ct. of. App., Feb., 1872,

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14 Abb. Pr. N. S. 374), where a bond and mortgage executed by a married woman upon her separate estate, and placed by her in the hands of an agent, for the purpose of raising a specific sum of money, to be used for the benefit of her husband and another person, were delivered by the agent, together with another security, to one who advanced upon all the securities delivered the amount of the bond, it being agreed at the time, that the bond and mortgage should also be held as security for a judgment against the agent and others ; it was decided that the mortgage could not be enforced against the wife’s property, although the transaction was an entirety, and notwithstanding that the money advanced had been actually applied to the use of the persons for whose benefit the bond and mortgage were executed.

It will be observed that the cases thus far cited, are cases in which no alteration was made in the terms of the instrument as originally executed. And if the delivery, by an agent, of a deed or mortgage otherwise than in accordance with the authority imported by its precise terms, will render the instrument a nullity in the hands of the grantee or mortgagee named therein, even although no alteration of its terms is required or is made, for the purpose of rendering it available, a fortiori, the making of such alteration on its face, by or at the instance of the agent, and with the knowledge of the person who accepts it, should destroy its validity.

It is even held that a deed or mortgage, executed in blank, that is, without inserting the name of any grantee or mortgagee, may not be filled in, without the express authority of the grantor, evidenced otherwise than by mere delivery ; that such authority can not be inferred with respect to deeds or instruments under seal; and that an instrument in the form of a mortgage, but containing the name of no mortgagee, does

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not become effectual by delivery to one who advances money upon the faith of an agreement that he shall hold the instrument as security for such advance (Chauncey v. Arnold, 24, N. Y. 330).

It was intimated, in the case last cited, that proof of parol authority to fill up the blank in the mortgage, might perhaps have enabled the holder to enforce it, but as no such proof was given or offered, the judgment of this court, which was adverse to the enforcement of the instrument, was affirmed by the court of appeals.

In Marcy v. Dunlap (5 Lansing, 365), it was held that a material alteration made in a mortgage, without the consent of the mortgagor, either by the mortgagee, or a third person, at his instance, annuls the instrument.

It is quite clear, upon the authority of the cases cited, as well as upon the familiar principles they ill us trate, that the bond and mortgage which form the subject of this litigation are not obligatory upon the plaintiff, and can not be enforced as against her, or her, separate estate.

But it is insisted on the part of the defendant, that the mortgaged premises, although standing in the plaintiff’s name on the record, are, in reality, the property of her husband, and that he has an equitable interest therein; that the plaintiff’s title, if she have any, was derived directly from her husband by a voluntary conveyance, without any actual consideration; that such conveyance was fraudulent and void as against his creditors, and is defeasible at their instance ; and that she can not, therefore, maintain this action against the defendant, a creditor of her husband, who has in good faith made advances to him, on the faith of a mortgage, executed by him as well as by herself.

Without examining the evidence minutely, for the purpose of ascertaining whether it establishes the facts

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thus asserted, we are of opinion that a defect in the plaintiff’s title constitutes no defense (Craft v. Merrill, 14 N. Y. 456 ).

if she were seeking to recover possession, it would be necessary for her to show a complete and perfect title in herself. But she is in possession, under title or a claim of title. The defendant, as mortgagee, claims under her, and in subordination to her title, whatever it may be. She may therefore maintain an action to remove the apparent lien of his mortgage, inasmuch as it is valid on its face, but void by reason of facts only susceptible of proof by extrinsic evidence. It is wholly immaterial whether her husband, or his creditors have an equitable interest in the premises enforcible in proper proceedings instituted for that purpose.

The rights of the defendant, as against the husband, and the husband’s interest, if any, in the property, are not affected by the judgment. They were not, nor could they be, determined in this suit. Even if the husband were vested with the legal title, it is by no means clear that an action of this character might not, under the circumstances, be maintained by the wife for the protection and relief of her inchoate right of dower (Simar v. Canaday, 53 N. Y. 298 ).

We have considered the rulings of thev learned judge, upon questions- of evidence, and are satisfied that no tenable exception can be taken thereto. The decision commends itself to our sense of justice and right, as between the parties.

The judgment must be affirmed, with costs of the appeal.

Speir, J., concurred.

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