Lucky v. Odell

Headnote

Property purchased, by husband in his own name, with wife's funds, under agreement with her that title should be taken in joint names—wife may purchase on foreclosure sale, though husband has died leaving children of which she is guardian in socage—admissions of husband as to purchase, &c., with wife's funds, admissible against heirs.

This is an appeal from a judgment; of the special •term, dismissing the complaint.

The plaintiffs are children and heirs at law of James M. Odell, who died intestate on January 31, 1864, leaving the mother of said children his widow.

At the time of the death of James M. Odell, he was seized of the record title to certain real estate which is described in the complaint, and on which there was a certain mortgage for $500,

After his death an action was begun for the foreclosure of said mortgage, to which all parties to the present suit were parties, which resulted in a judgment for the mortgagee for the sum of $744.22, principal and interest, and for a sale of the mortgaged premises. Pursuant to this judgment the property was sold by the sheriff on October 18, 1864, and purchased by the defendant (according to leave contained in the judgment), and the sheriff duly executed a deed to her as the purchaser. The present plaintiffs being infants were all duly represented in the foreclosure proceedings by their guardian ad litem.

The action was brought on the theory that the defendant at the time of the sale and purchase under the foreclosure • proceedings was guardian in socage of the plaintiffs, and as such was precluded from buying the property on her own account; 'and judgment was demanded awarding the title to the plaintiffs as heirs at law of James M. Odell, defendant’s husband, and for the partition of the property and an accounting as to rents and profits.

The answer alleged, among other things, that the property was originally purchased with defendant’s money, under an agreement with her husband that the

title be taken in their joint names, and it further alleged that she never discovered that the title had been otherwise taken, till after her husband’s death.

The court below found that the property was purchased by James M. Odell with the defendant’s money, pursuant to an agreement that the property was to be held for the joint benefit of both; that the husband acted in reference thereto as agent of the defendant; that it was his intention at the time of the purchase of the premises that the same should remain and continue the property of himself and wife ; and that she so understood it at the time of the purchase; and thereafter both husband and wife continued to use and occupy the premises as a home for themselves and children until his death.

The court, at General Term, after consideration of testimony showing certain admissions made by the deceased in his lifetime, that the property was bought by him with defendant’s money, &c., said:

“The declarations of the intestate were admissible. It was shown that he is deceased, that he possessed competent knowledge of the facts or that it was his duty to know them, and that the declarations were at variance with his interest. These admissions are admissible in evidence against the representatives in the same manner as they would have been against the intestate (1 Greenl. Ev. §§ 147-155, 189).

“ The defendant had the right to purchase at the sale not only because she was authorized by the judgment in the foreclosure action to do so, but being vested as survivor with the fee of the property, she could protect her rights and interest by bidding in the same for her own exclusive benefit and advantage.”