text:
    Freemam Hiscox and others, v. John H. Harbeck, William H. Harbeck and others.
    1. To entitle a party to a lien upon a vessel, under 2 R. S. 493, § 1, sub. 1, (as that statute read prior to the amendment of it made in 1855,) for the price or value of “ materials or articles furnished in this State” by him “ for, or towards the building” of such ship or vessel, on the application of the person building such ship or vessel, he must prove that the materials, claimed to have been furnished, were actually incorporated into such vessel; that they were used in it, as well as ordered for it.
    2. The facts, that materials are ordered for a vessel which the purchaser is then building, and are furnished upon, and pursuant to, such order, and are sent to the yard where that and other vessels are being built, is not prima facie evidence of the use of them for the purpose for which they were ordered, although there be no evidence impairing or affecting the proper force and effect of such facts.
    3. The contrary of this proposition having been charged, and the charge having been excepted to, a new trial was ordered.
    4. An agreement, entered into before the building of a vessel is commenced, between, the defendants and such builder, that the vessel should “ become the property of the former as fast as the payments were made on her;” and the further facts, that before the materials were furnished by the plaintiffs, the builder was overpaid, by the defendants, for all work and materials; and that the builder having failed before completing her, the defendants, “ having overpaid him more than the work and materials were worth,” took possession of her and completed her, make' the defendants, at all times, owners of the vessel, as the building of her progressed, and consequently present a case, in which the person ordering the materials of the plaintiffs was not, at the time, the “ owner, agent, or consignee” of such vessel, within the meaning of the statute, and, therefore, the plaintiffs would acquire no lien on the vessel, for the price of such materials. (Hoffman, J.)
    Heard January 4, 1858;
    decided February 27, 1858.
    (Before Duer, Ch. J., and Hoffman and Pierrefont, J. J.)
    A verdict was taken for the plaintiffs in this action, and an order was made at the trial, that the entry of judgment be suspended, and that the questions of law, presented by the defendants’ exceptions, should be heard at the General Term in the first instance, and judgment be there applied for.
    This is an action on a bond given by the defendants to procure the discharge of a vessel from an attachment, issued under the provisions of the Revised Statutes relating to the collection of demands against ships and vessels, and was tried before Mr. Justice Bosworth, and a jury, on the 13th of October, 1857.
    The plaintiffs’ counsel read in evidence the bond, dated the 24th of February, 1855. The defendants became thereby bound to Freeman Hiscox and James Devoe, their executors, &c., in the penalty of $1500, and the condition was, “ to pay, or cause to be paid, unto the above-named Freeman Hiscox and James Devoe, creditors, prosecuting the application hereafter mentioned, the amounts of all said claims and demands as shall have been exhibited, which shall be established to be subsisting liens upon the vessel called the City of Mobile, pursuant to the provisions of part iii. ch. 8, title 8, of the Revised Statutes of the State of New York, entitled “ Proceedings for the collection of demands against ships and vessels,” at the time of exhibiting the same respectively.
    It was proved that the plaintiffs were partners in the lumber trade; that W. Ferine was a ship-builder, and was building a vessel at Green Point, and that the materials were delivered at the yard of Ferine, and were to be used in ship-building; that he had five or six other vessels building at the same yard about the same time; that the lumber was sold to him, and he 'alone was known as the purchaser. The vessel, in which it was alleged the timber was used, was afterwards called the City of Mobile. The articles were supplied through June and July, 1854.
    A witness stated that Ferine said, when he bought the lumber, it was for that vessel. This was when the first lot was delivered. This evidence was objected to, admitted, and an exception taken.
    After the plaintiffs’ counsel had rested, a motion was made to dismiss the complaint, which was denied, and an exception was taken to the decision.
    The defendants then proved that they were ship-owners; that Perine had built vessels for them before he failed in 1854, and that the vessel in question was known as Ho. 10, in Perine’s yard.
    On this testimony being objected to as irrelevant, the defendants’ counsel stated, that he offered to prove,
    1. That by agreement entered into before the building of this vessel commenced, it was agreed that she should become the property of Harbeck & Co., as fast as the payments were made on her.
    2. That before the timber in question was purchased by Perine, Harbeck & Co. had overpaid Perine for all work and materials, and that they were, under the agreement, the owners of the vessel, and that she was insured in their names, and built under a superintendent appointed by them.
    3. That they took possession, having overpaid him more than the materials and work were worth, and finished her themselves, and that their payments were always in advance of the work and materials furnished.
    But the plaintiffs’ counsel objecting to the competency of said evidence, the same was excluded, and defendants’ counsel excepted.
    The parties having respectively rested, the defendants’ counsel renewed his motion to dismiss the complaint, on the ground that it did not affirmatively appear that this timber was used in the City of Mobile, which motion was denied, and the decision excepted to.
    And the cause having been summed up, his honor, the presiding Justice, after explaining the provisions of the statutes under which the bond was given, charged the jury, in substance, as follows :—
    That, to entitle the plaintiffs to recover, it must satisfactorily appear, that the materials claimed to have been furnished, were actually incorporated into this vessel, and that they were used in it, as well ordered, by the builder, for it. But that when it was proved that materials were ordered for a vessel which the purchaser was then building, and that they were furnished upon and pursuant to such order, and were sent to the yard where the vessel was being built, such proof, (if no other evidence were given to impair the effect of it) was sufficient prima facie evidence of the use of them for the purpose for which they were ordered, to entitle a plaintiff to recover.
    To that part of the charge commencing at the words “ but that,” the defendants’ counsel excepted.
    He declined to charge the jury, as requested by defendants’ counsel, that to entitle the plaintiffs to recover, he must show, by affirmative proof, what portion went in the vessel, otherwise than is hereinbefore stated he did charge; and defendants’ counsel excepted to such refusal.
    The jury found a verdict for the plaintiffs, in the sum of $715.76.

      James W. Gerard, for the appellants, (defendants.)

      C. Nagle, for respondents, (plaintiffs.)
   By the Court. Hoffman, J.

The statute under which the present claim is to be sustained, if at all tenable, provides: “ That whenever a debt, amounting to fifty dollars, or upwards, shall be contracted by the master, owner, agent, or consignee of any ship or vessel within this state, for or on account of any work done, or materials or articles furnished in this state for or towards the building, repairing, etc., such ship or vessel, such debt shall be a lien upon the said ship or vessel, and shall be preferred to all other liens thereon, except mariner’s wages.” (2 R. S. 493, § 1.)

Two points are, then, to be established: first, the work must be done, or materials supplied, for or towards the building or repairing the vessel; second, the debt incurred for such work or materials must be contracted by the owner, master, agent, or consignee of the vessel. Each of these circumstances, must be found in the case before the lien can attach.

Such was the statute in force when the materials were furnished for which the lien is now asserted. It was not until March, 1855, that the Act was amended, by adding the word builder” to the specification of those by whom the debt must be incurred.

I. The rule of law laid down in the first clause of the charge of the learned Judge, is as follows:—“ That to entitle the plaintiff to recover, it must appear satisfactorily, that the materials claimed to be fiirnished were actually incorporated into the vessel; that they were used in it, as well as ordered by the builder for it.”

This language gives, in clear and decided terms, an exposition of the phrase of the statute, “ furnished for, or towards, the building, etc., of the vessel.” We apprehend, that it declares the true rule of law upon the subject, and is fully sustained by the cases. It is of importance to examine the cases to some extent, as well to sustain the law so declared, as to test the subsequent clause of the charge.

In Phillips v. Wright (5 Sandf. 842) it was found that the timber was furnished for a particular ship, and the material men charged the price to Bishop & Simonson, who ordered it; but this did not interfere with his right to look to the ship. It was also found, that some of the timber was not used in the vessel. The plaintiff insisted, that the want of application of the timber to the building of the vessel, for which it was bought, was immaterial; that the statute conferred the lien, where the timber was sold and delivered for building the vessel, without regard to its actual application for that purpose.

■ But the Court treated this position as unsound. The whole theory of a lien for labor and materials, rests upon the basis, that such labor and materials have entered into, and contributed towards the production or equipment of the thing upon which the lien is impressed. This imposes upon the material man the necessity of seeing that the materials are applied to’ the purpose for which they are procured, if he design to sell upon a lien given to him. Ho undue hardship is imposed upon the material man by this. The Act gives him a privilege over all general creditors, on the footing, that the articles have contributed to the making of the ship. It is certainly not asking too much, that he should look to the application of what he furnishes, if he intends to create the statutory lien.

In the case of The Kiersage (2 Curtis, C. C. Rep. 421, Maine) the facts were these:—The builders were constructing another vessel of the same tonnage and model, at the same yard, at the time when the one in question was being built. The libellants furnished materials for the two vessels, without distinguishing between them. The Court reversed a judgment below sustaining the lien, and sent the case to an assessor to ascertain what materials, purchased for the two vessels, were used in the construction of the Eaersage; for the price of such portion she was liable.

The Judge says, “ If materials are furnished for two vessels, although the contract does not specifically appropriate them, they may be considered as furnished to that vessel, in the construction of which they are used. When the builder has actually appropriated them, or some part of them to one vessel, it may be said that they were furnished for that vessel, and so be within the law.”

The statute of Maine is, in this particular, substantially like our own.

In Veltman v. Thompson, (3 Comstock, 440,) it was said, that the statute clearly implied, that the contract to work or furnish materials must be followed by an actual performance, before the lien could attach.

The case of The Pacific, (1 Blatch. C. C. Rep. 537,) shows also, that, to support the lien, the materials must be actually used in the vessel.

In the case of Ingersoll v. The Park Cabarga, (before Justice Nelson, MSS.,) the learned Judge says, “ I think it will be found, on looking into the origin and foundation of the rule in the Maritime Code, that the reason and policy upon which it rests, are applicable only to cases where the materials and supplies have - been actually furnished to the ship; in other words, where the material-man has parted with the materials, and the ship has received the benefit of them. In the case of materials and repairs, the articles furnished enter into, and give value to, the shin itself.”

The learned Judge refers to the case of The Neptune, before Sir John Nichol, (3 Hagg. Rep. 139,) as showing the origin and principle of the rule which gives material-men a privilege over other creditors.

The object of the local statutes of various States is, to confer upon parties building or repairing domestic vessels, within the State, the privileges which the maritime law has given to foreign vessels under the codes of most commercial nations. This principle was applied to all vessels by the law of Rome, and has become incorporated into the commercial code of perhaps all the continental States, (Digest, 425, 26; Abbott on Shipping, 142; The Neptune, 3 Hagg. 124; Smith v. The Steamer Nastern Railroad, 1 Curtis, C. C. Rep. 253.)

In England this rule was rejected as to domestic vessels. But in Admiralty, and as to foreign vessels, the doctrine of the civil law prevailed at one time fully, and was overthrown by the courts of common law in the reign of Charles the II., (Abbott 150 n; The Neptune, 3 Hagg. 129; Reversed, 2 Knapp’s, Pr. Coun. Cases, 94.)

The Statutes 3d, 4th, Victoria, ch. 657, gives the lien as to foreign vessels. In our own country the maritime law has prevailed, (4 Wheaton, 438 ; 1 Turner, 74.)

It follows that local statutes may well receive their interpretation from the decisions under the maritime rule which they adopt, wherever their provisions are not peremptory and explicit. All those decisions proceed upon the ground that the materials have gone into the ship, and contributed to her existence, her perfection, or her value.

We conclude that the rule laid down by the learned Judge, in the first clause of his charge, is unquestionable law, and adopt the terms in which it is expressed.

II. But the next clause of the charge, and which is excepted to, is as follows:—“ When it was proved that materials were ordered for a vessel which was then building, and that they were furnished upon, and pursuant to such order, and were sent to the yard where the vessel was being built, such proof, (if no other evidence was given to impair it,) was sufficient prima facie evidence of the use of them for the purpose for which they were ordered to entitle a plaintiff to recover.”

We understand the charge to include the element, that the order is made by one possessing the statutory character of owner, agent, or otherwise. The question is, whether the charge is erroneous thus understood ?

The proposition contained in it may consist with the fact of not a particle of the materials purchased being actually used in the vessel. If the plaintiff proved the matters supposed by the Judge, and rested, he would be entitled to recover.

We consider that there was error in this position of the charge, and error calculated to give a wrong direction to the judgment of the jury. It is not enough, in order to establish a lien upon a vessel, that an owner should order them, and that they be traced to the yard where the vessel is being built in common with other vessels. We are far from saying, that no testimony will suffice but such as pursues and marks each stick of timber from the lumber-yard of the seller to its embodiment in the vessel. Evidence short of this may amount to reasonable and satisfactory proof to a jury of the identity, between what is furnished, and what is employed. It would be improper and fruitless to attempt to define the character or amount of evidence which would be sufficient. The guide to the jury appears to us to be, the general proposition laid down by the Judge in the first instance, with noticing any circumstances in each particular case, which may lead to its just and proper application.

III. Another exception raises the question, whether the contract was made, or debt incurred, by the owner, or agent of the vessel ? In connection with this, the offer of the defendants to prove what was the relation between them and Ferine, is to be considered.

The Act of 1830, as before stated, contained only the words, owner, master, agent, or consignee. By a statute which was passed, and went into effect on the 29th of March, 1855, the word, builder, was added to the enumeration. All the timber was furnished in the present case, by the end of July, 1854.

In Hubbeil v. Denison, (20 Wendell, 181,) the plaintiff had been employed by one, who, it appeared, had no other interest in the vessel than as builder. It was held, that he was not an agent, for he had no power to bind the owners, but only himself personally. He was but a contractor, and, as such, was neither within the words, nor the reason or equity of the Act.

So, in the case of Udall v. The Steamship Ohio, (MSS. Sept. 30, 1853,) Justice Nelson observes:—“ A contractor employed generally to build a vessel—furnishing the materials—to complete her at a given time, and at ,a specific price, is, doubtless, the owner ■until the vessel is built, completed, and delivered; and under' such a contract, the lien of the material-man would- clearly attach. But, in this case, the contract is for the construction of the ship after a specified- model and materials, to be built under the direction of one of her owners, and to be paid for from time to time, as the work progressed, and the materials were furnished. I cannot doubt that the defendants (for whom the vessel was built) became the owners of it as the work advanced, and was paid for. It seems to me clear, that the framers of the Act did not intend that persons dealing with a mere contractor, divested of ownership, should have a lien on the vessel. The debt is to be incurred by the owner or agent, master or consignee—not by a mere contractor to build.”

The subject is well discussed, and the nature of the agency, meant by the statute, much considered in the case of Childs v. The Steamboat Brunette, (4 Bennett’s Missouri Rep. 518.) It was there held, that a carpenter who had contracted to repair a boat, for a specific sum, was not an agent, so as to bind the boat by a lien, in favor of a lumber-merchant from whom he purchased the timber. The statute of Missouri is similar to our own.

And in Smith v. The Eastern Railroad Company, (1 Curtis C. C. Rep. 253,) where the statute of Massachusetts was carefully considered, it was decided, that a seller 'of materials to one who had contracted to build for a stipulated sum, with knowledge of the contract, could not assert a lien. See, also, Ladd v. Hughes, (15 Illinois Rep. 41.)

In Phillips v. Wright, before referred to, the Court say, that the evidence, that Bishop & Simonson built the vessel, established, presumptively, the fact, that they were the owners. The contract had not been produced, and there was nothing incompatible with the idea, that they were to continue the owners of the hull, until their work was completed, and the price fully paid.

But the case of Andrews v. Durant, in the Court of Appeals, (1 Kernan, 35,) is of principal importance, upon the present question.

The two leading points decided, were:—

1. That in general, a contract for the building of a vessel, or other thing not yet in esse, does not vest any property in the party for whom it is constructed, until the thing is finished and delivered, or, at least, ready for delivery, and approved by such party.

2. That this rule is not varied by the fact, that payment is to be made by instalments, during the progress of the work, and is so made.

3. Hor is it enough, that the contract can only be fulfilled by completing and delivering the identical vessel commenced—not another similar, and corresponding with the agreement.

4. Hor, again, that there is a superintendent employed to regulate the work.

But it was admitted, that it was competent for the parties to agree when, and upon what conditions, the property in the subject should vest in the prospective owner. Such an agreement would be legal. And the inquiry in the case became this: Whether the parties had so contracted as to transfer the ownership as fast as the different parts of the vessel were added to the fabric. It was decided, that, that particular contract did- not so operate.

How, the offer of the defendants was, first, to prove that, by the agreement entered into before the building commenced, it was agreed, that the vessel should become the property of Harbeck & Co., as fast as the payments were made on her, and that said Harbeck & Co. were always in advance; next, that before the timber in question was purchased by Ferine, Harbeck & Co., they had overpaid Ferine for all work and materials, and were, under the agreement, the owners of the vessel.

This appears to us to meet the principle conceded in Andrews v. Durant. If such an agreement was proven as proffered, the ostensible ownership of Ferine would have been disproved, and that of Harbeck & Co. established.

The offer is very broad—so broad as to cover any case in which an express agreement would be sufficient to create an exception to the general rule, and displace the apparent, and make out the actual ownership.

Questions of difficulty may certainly arise, such as, whether the ownership vests until payment of a specific instalment is actually made, and whether a subsequent failure to pay would defeat the ownership in the part previously vested, under an agreement providing for a progressive ownership. We do not enter upon such questions. It is sufficient to say, that under the offer a case can be made which will defeat the lien.

We think a new trial must be ordered, with costs to abide the event.


source: Caselaw Access Project

author: By the Court. Woodruff, J.

license: Public Domain

text:
    Mary Ann Graham, Plaintiff and Respondent, v. Owen Dunigan, Defendant and Appellant.
    1. Where certain apartments in a dwelling-house, in the City of New York, are assigned to a widow on an assignment of dower in her husband’s real estate, and the residue are in possession of the heir-at-law, or his grantee, the taxes and assessments are the subject of equitable apportionment between her and such heir, or his grantee.
    2. But no such apportionment can be made, by the assessors or collectors of taxes, etc., or other public authorities of the city, so that either can pay a portion thereof, and discharge his or her part of the premises from the charge or incumbrance.
    3. If, in order to relieve her own share of the premises from the charge, prevent the accumulation of a percentage imposed as a penalty for the non-payment, and save the premises from sale for taxes or assessments, the widow pays the whole amount, she may recover from the heir-at-law, or his grantee, his just share or proportion of the amount paid, with interest from the time of such payment.
    4. Such share or proportion of the taxes is to be ascertained by taking into view the relative annual value of those parts of the premises held by each respectively ; and, in dividing the assessment, the nature of the improvement for which the assessment is made should be considered, having regard also to the benefit resulting therefrom, and its probable permanency, and also the age of the tenant in dower, and the probable duration of her estate.
    6. The annual water rate, for the use of the Croton water, is subject to the same division. But a charge for Croton water, separately and specifically made for a particular use, which use is exclusively confined to the apartment of one of the parties, should be borne in whole by such party.
    6. In an action brought by, the widow to recover from the heir-at-law, etc., his just share of taxes and assessments paid by her, it is not competent to read in evidence an affidavit of one of the commissioners, by whom the ad-measurement of her dower was made, to show that the commissioners took into consideration the taxes which would probably be imposed upon the particular dwelling-house in question, and assigned her dower in that house on the assumption that she would pay the whole of the taxes; nor to prove by that or by other evidence, that upon any other assumption there was assigned to her for her dower an under-proportion of her husband’s real estate. Such an affidavit, although found on file annexed to the record of the proceedings for the admeasurement of dower, forms no proper part of the record.
    7. If the commissioners made the admeasurement upon any erroneous principle or assumption, the heir-at-law, etc., should set it aside by the proper direct impeachment thereof in the proceeding itself.
    8. Where it is stated in the case that a witness named was sworn and examined “ under objection and exception by the defendant’s counsel,” the Court on appeal will only consider whether the witness was, upon the facts appearing in the case, a competent witness for the plaintiff. Such an objection and exception does not bring under examination the particular testimony given by the witness, not further objected to, nor any part of it, if any of such testimony was admissible.
    Before Bosworth and Woodruff, J. J.
    (Heard, Dec. 1857;
    decided, Feb. 27th, 1858.)
    This action comes before the Court by appeal from a judgment for the plaintiff, ordered on the trial of the action at Special Term, before Mr. Justice Hoffman, without a jury.
    The action is brought by the plaintiff, the widow of one Graham, who died seized of two lots of land, and the dwelling-houses thereon, in the City of New York, who, after the death of her husband, took the usual proceedings to obtain an assignment of her dower, and to whom dower was assigned jn one of the houses by appropriating to her several of the apartments and the privilege of the yard, etc. After such assignment of her dower, and while in possession, the defendant (who was the grantee of the. heirs-at-law) was in the possession and enjoyment of the remaining apartments.
    The annual taxes, and some assessments for public improvements, and also the annual Croton water rate, from time to time became payable and the plaintiff paid the whole amount, and brought this action to recover from the defendant his just share thereof.
    The complaint was demurred to, but the same was held sufficient at Special Term, and on appeal to the General Term, the decision was affirmed on the 7th of November, 1857.
    It is not material to state the pleadings, since no question arose, on this appeal, which does not sufficiently appear in the opinion of the Court; and the questions arising on the trial are there stated.
    The following were the facts found on the trial at Special Term, and the conclusions of Mr. Justice Hoffman thereon:—

      “ This cause having been tried before me, without a jury, I find the following facts:—
    “ That the rental of the whole premises, upon which an apportionment is to be made, is the sum of $600 per annum. That the proportion which the property not occupied by the plaintiff should bear to this valued rental, is the sum of $84; that the taxes proven to have been paid amount to the sum of $269.98, and the defendant’s proportion, on the basis of the rent, is the sum of $37.
    “ That the plaintiff has paid the sum of $35 for an assessment for a permanent improvement, of which the defendant’s proportion is $5.
    “The plaintiff’s life-estate should be charged with $11 of the remaining $30, and the estate in remainder with the balance of $19.
    “The sum of $9 was likewise paid for a permanent improvement, of which the plaintiff should pay $2.50, and the defendant the balance of $6.50. That the authorities of the City and County -of New York do not apportion taxes or assessments in cases like the present; and that the plaintiff, under the advice of counsel, (as to the saving her dower,) made the payment in full.
    “ The total amount, chargeable to the defendant, is the sum of $67.50, which, together with $7.50 interest thereon, make in all, $75.25. The decision of the General Term in this case, upon the demurrer, entitles the plaintiff, as matter of law, to recover, upon proving his case.
    “I therefore decide, that judgment should be rendered for that amount, in favor of the plaintiff, with costs.”
    Judgment having been entered in conformity with this decision, the defendant appealed to the General Term.

      3. Brewster, for appellant (defendant).
    I. The exception to Mrs. Park’s testimony was well taken. What rent she pays now was wholly irrelevant, as the action applied to 1852-1856. '
    II. The testimony does not sustain the finding of facts by the Judge.
    III. The taxes and assessments were on the land, not on the upper rooms, and cannot be apportioned. The plaintiff ought, therefore, to have paid for herself, and has no claim over against the defendant. (2 R. S. 4th edition, 731, § 18.)
    IV. The payment was voluntary, and confers on the plaintiff no right to recover. (10 J. R. 361; 2 Denio, 27; 3 J. R. 434; 10 J. R. 404.)
    V. The statutes provide for the proper mode of apportioning taxes in all cases, when they can be apportioned, and the party should resort to the remedies there provided. And this action will not lie, nor has this Court jurisdiction of the action. (1 R. S. 4th ed. 776, §§ 82-89, p. 779; Laws 1821, p. 143, ch. 149 ; Laws 1843, p. 325, § 11.)
    VI. The amount allowed is more than the plaintiff is entitled to. None of the Croton-water tax should be charged to these upper rooms, and certainly nothing for the bar on the premises, that being in the portion occupied by the plaintiff. (See Ordinance of 1851, approved March 20; Bleecker v. Ballou, 3 Wend. 263.)
    VII. It was wrong to allow the plaintiff to pay, without defendant’s knowledge or consent; and then, without showing the account, making a bill or asking the defendant to pay, to charge him interest and costs; and the various exceptions on those points are well taken.
    VIII. The exception to the ruling of the Judge, that the defendant should not read the part of the judgment-roll of the proceedings for the admeasurement of dower, offered in evidence, is well taken.

      Warren G. Brown, for the respondent (plaintiff).
    I. The decision of the General Term of this Court, upon the. demurrer in this case, having decided, as a matter of law, that the plaintiff is entitled to recover, upon proving his case, that point is res adjudieata here, and will not be again inquired into.
    II. The equitable apportionment of taxes and assessments between tenants is, in some measure, a matter of equitable discretion, depending upon all the circumstances, and to be exercised by the Judge who makes the apportionment, and will not be interfered with, unless clearly excessive in amount.'
    III. No objection was made at the trial, that defendant should not pay his proportion of the entire charge for Croton; nor does it appear in whose part of the premises the bar is situated. The charge for the bar is only $15, of which defendant’s proportion would be but $2. Lex non curat de minimis. But the entire water-tax cannot be so divided.
    IV. The interest upon defendant’s proportion of the taxes and assessments to 20th of June, 1857, was $13.41, instead of $7.50, the amount allowed to plaintiff, making a difference of $5.91, which will more than offset the Croton charge for the bar, or any other excess claimed, if any really exists.
   By the Court. Woodruff, J.

The plaintiff, as tenant in dower of certain portions of the house at the corner of the Eighth Avenue and Thirty-fifth street, assigned to her by commissioners, in a proceeding brought to obtain an admeasurement and assignment of her dower, sues the defendant, the owner of the fee of the premises, and in possession of the portion not assigned to her, to recover an equitable share or portion of the taxes and assessments paid by her for the protection of the whole premises.

The question in controversy was, whether she can recover for moneys so paid; and, if so, what proportion is she entitled to recover from the owner of the fee of the premises, who is also in possession of some of the apartments in the house.

The plaintiff held, as tenant in dower, the larger portion of the apartments in the dwelling, the defendant the residue; the taxes and assessments were laid upon the whole, (i. e., upon the lot of ground, with the dwelling-house thereon); a failure to pay would result in a sale of the entire premises. It was the plain duty of each party, as between themselves, to contribute and pay a just proportion; and we have no hesitation in saying that, if either pay the whole, he or she is entitled to recover back from the other a just proportion thereof. It is not a voluntary payment, but one which the plaintiff is compelled to make to save his own property.

The statutes cited to us, authorizing an apportionment of taxes and assessments in the City of Hew York, do not- provide for an apportionment among owners of different estates in the same land, —as between the owner of the reversion and the tenant in dower. (Laws of 1821, c. 149, p. 143; sess. of 1843, c. 230, p. 325, § 11 of Art. 3.)

The statute declaring the effect of the admeasurement of dower and the recovery thereof, (2 R. S. 491, § 18,) provides, that the widow shall hold the same during her natural life, subject to the payment of all taxes and charges accruing thereon, subsequent to her taking possession. This makes her liable for the taxes upon the premises assigned to her, but by no means for the taxes upon that portion not assigned to her; and it therefore becomes the subject of equitable apportionment, when a part of a house is assigned to her, and the residue is held by the heirs-at-law, or their assigns.

In a case like the present, the duty of each is the proper subject of equitable apportionment, having regard to the benefit accruing from the assessment, whether more or less permanent, and considering also the age of the tenant in dower, and the probable duration of her estate. And, as to the annual taxes, it seems quite clear, that they should be contributed, to by each in the ratio which the annual value of the apartments, etc., held by each bears to the annual value of the whole premises.

The decision at Special Term, was based upon this view of the rights of the parties; and we think the basis of the decision was entirely correct.

Upon the questions of fact, what is the annual value of the whole premises, and what is the value of the respective portions held by the plaintiff and the defendant? the evidence is not very clear, nor free from contradiction; but we can by no means say that the finding of the Court is so clearly against the weight of the evidence, or without evidence, that it should be reversed.

And, in estimating the benefits resulting from the assessments, for permanent improvements, and apportioning them in view of the probable duration of the estate of the plaintiff, it must suffice to say, that there is nothing in the case which indicates to our minds that the apportionment made at the Special Term was not, in all respects, just and equitable, and made in the exercise of that discretion which properly controls a subject of that nature.

The case states, that “Mrs. Sarah- Parks, a witness sworn on the part of the plaintiff, under objection and exception by defendant’s counsel,” testified, etc., (giving her testimony.) The points submitted on the argument by the appellant, urge that this exception is well taken. What is meant by the witness “ being sworn, under objection and exception,” is not very obvious; it would seem that the defendant claimed, that she was an incompetent witness, and that he therefore objected to her being sworn, and excepted to her admission as a witness; but, as there is nothing in the case, and nothing is now suggested indicating that she was incompetent, it is quite possible, that it was intended to represent that the testimony which she gave was objected to on some other ground, and that the Court overruled the objection, and that the defendant excepted to such ruling. We should be reluctant to reverse a judgment upon such a conjectural construction of the meaning of an exception, even if we could find any thing in her evidence that we thought might or ought to have been excluded, if specifically objected to. We cannot sanction that kind of wholesale exception to the whole of the testimony of a witness; and if such exception be taken, and any part of the evidence be legal and proper, the exception ought to fail. It is only just to the adverse party, and to the Court itself, to require the objecting and excepting party to put his finger on the very subject of his objection and exception.

This witness testified, that she occupied, and for ten weeks had occupied, one of the defendant’s rooms and the wood-shed, and paid $3 per month rent. It is now urged, that what this witness paid at the time of, and for ten weeks prior to, the trial, was no evidence of the value of the premises in 1852, and onward. So far from this ground of objection appearing to have been suggested, it appears that most of the testimony given on the trial was of a similar character, and was received without question or objection. But, had the objection been specifically made, it is answered by the suggestion, that a material inquiry was, what is the relative yearly value of the different portions of the premises ? and how shall taxes, down to a period as late as 1856, be apportioned ? The trial was in 1857. Eor this purpose, the evidence was, we think, clearly relevant and proper.

The Court properly refused to allow an affidavit, made by the commissioners who admeasured the dower, to be read, to show' how they estimated the value of the premises, and that they took into consideration the large amount of taxes on the corner lot:—. 1st. It was no proper part of the record; 2d. If they made the admeasurement upon any erroneous principle or assumption, it could not affect the plaintiff’s rights, so long as the admeasurement remained in force; if wrong, the defendants, in that proceeding, should have had it set aside; and, 3d. It did not show, nor tend to show, that the admeasurement was made upon any idea that the plaintiff must pay more than her just share of the taxes, etc., upon the corner lot, however large they might be; and this answers, also, the offer, made by the defendant, to prove orally that the commissioners made the assignment of dower, assigning to her what was an undue proportion, unless apportioned to her on the basis of her paying the taxes and assessments.

Ho such evidence can be competent, in any view of the subject, in a collateral action: the assignment of dower must here be conclusively presumed to have been just and made upon correct principles.

It is insisted, that the Court erred in allowing interest to the plaintiff. Upon every just view of the subject, the plaintiff, if entitled to recover at all, should recover interest from the time of suit brought; and an exception to the allowance of any interest cannot therefore be sustained. From what precise day the Court below allowed interest, is not apparent, but a computation will show that the amount allowed is very little more,—less than two dollars more,—than the interest from the date of the summons.

We think, however, that the plaintiff might equitably have been allowed a greater amount of interest than was allowed on the taxes and water rate paid.

It was the duty of the defendant to pay his share of the taxes, etc. Had not the taxes been paid by the plaintiff, the rates of increase by law, imposed by way of penalty for suffering taxes to remain in arrear, greatly exceed the legal rate of interest, and that penalty is saved to the defendant; and this is also true of the water rate and assessments, after the lapse of certain periods prescribed by law.- The defendant, therefore, would have been a considerable gainer, even had he been charged with interest from the dates of the respective payments, as we think would have been equitable. So that, in this respect, we deem the judgment less than the plaintiff was entitled to.

But we find that, besides the tax for the Croton water for the use of the premises generally, there was a tax for water for the use of the bar in the store, which belonged exclusively to the plaintiff, and which tax it in nowise belonged to the defendant to pay or contribute to; and this last named tax, of five dollars a year for three years, is included in the aggregate apportioned between these parties, and by this means the sum of two dollars and seven cents is cast upon the defendant, which he was not liable to pay. We should do no injustice if we allowed this error to remain uncorrected. What we deem erroneous, in respect to interest, more than balances it. Still, as the plaintiff has not appealed, it will be safer as a precedent, if not our clear duty, to allow the defendant the two dollars and seven cents.

This sum must therefore be deducted from the judgment, and the judgment be affirmed for the residue, with costs of the appeal.

Ordered accordingly.


text:
    Theodosia D. Wheeler, Plaintiff and Appellant, v. John H. Morris and others, Defendants and Respondents.
    1. A widow is entitled to dower, in an equity of redemption vested in her husband, in lands, conveyed to him during the coverture, subject to a mortgage thereon.
    2. Her inchoate right of dower will not be defeated or extinguished by the foreclosure of the mortgage, during the lifetime of her husband, if she is not made a party to the suit, notwithstanding her husband is made a defendant therein.
    3. In the State of New York, when a mortgage is given by the purchaser of lands to his grantor, to secure to the latter the payment of the purchase-money, or a portion thereof, it is not necessary that the wife of the purchaser should join in the mortgage. As against such a mortgagee, the wife’s right of dower is in ' subordination to the mortgage, and cannot be set up to impair the mortgage, or the lien thereof. If, therefore, she survives her husband, she cannot claim dower in hostility to the mortgage, nor except on a full recognition of the mortgage lien. But she, nevertheless, is entitled to dower in the equity of redemption, and is entitled to redeem the premises from the mortgage.
    4. In this respect, the widow of one who has given a mortgage for purchase-money, in which she did not join, is in the same situation, and has the same rights as the widow who has united with her husband, in giving a mortgage to secure some other debt; and as the widow of one who had mortgaged his landsbefore his marriage; and the same, also, as the widow of one' who purchased land subject to a mortgage, and died.
    6. If a purchaser, who has given a mortgage for purchase-money, conveys the premises to another, subject to the mortgage, the same propositions, above stated, apply; the wife of the last grantee has an inchoate right to dower in the equity of redemption, in subordination to the mortgage, and on the death of her husband she becomes entitled to dower, and may redeem the premises by payment of the mortgage debt.
    6. A foreclosure of the mortgage in the Efe time of her husband, by a suit to which he is a defendant, will not defeat, nor cut off her right to redeem, if she is not also a party.

      1. The mortgagee in lawful possession, and those who may have acquired title by such a foreclosure, and a sale therein, and are in possession, may defend such possession at law against the claim of the widow; they have the legal title, and her claim is subordinate thereto, so long as the mortgage debt is unpaid; but she is entitled to redeem, and a suit in equity may be maintained by her, to be allowed to redeem upon such terms as may be equitable.
    8. The Statutes of New York relating to dower, etc., bearing upon these questions examined and considered.
    (Before Duer, Ch. J., and Woodruff, J.)
    Heard October 16th, 1857 ;
    decided March 6th, 1858.
    This is an appeal by the plaintiff, from a judgment for the defendant, ordered by Mr. Justice Hoffman, at Special Term, on demurrer to the complaint, on the ground, that it did not state facts sufficient to constitute a cause of action.
    In January, 1835, George Rapelje conveyed certain lots of ground to William A. Burtis, and, to secure to Rapelje the payment of a part of the purchase-money, Burtis and his wife, at the same time, mortgaged to him the premises conveyed.
    In May, 1835, the same premises were conveyed, from Burtis and wife, through several mesne conveyances, to Russell C. Wheeler, the then husband of the plaintiff.
    A suit was afterwards instituted, in the Court of Chancery, by the executrix of Rapelje, (who had died,) for the foreclosure of the mortgage given by Burtis and wife for purchase-money; and by virtue of a decree pronounced in that suit, the premises now in question were sold to pay the sum of one thousand six hundred and fifty-seven dollars and seventy-nine cents, found due on the said mortgage, on the 10th day of January, 1844; and on the 12th day of February, 1844, a conveyance was executed to the purchaser, by the Master in Chancery.
    To this suit, Russell C. Wheeler, the husband of the plaintiff, was a party defendant: but his wife, the present plaintiff, was not made a party.
    Russell 0. Wheeler, her husband, died in August, 1847.

      The bill of complaint herein alleges the foregoing facts, and that the plaintiff intermarried with Wheeler in 1833, and the plaintiff thereupon claims dower in the premises, and a right to redeem the same, by paying the sum due upon the mortgage, with interest, or such other sum as it shall be adjudged that she ought to pay, and for other and further relief, etc.
    The defendants have an interest in the premises, as purchasers and mortgagees, under the foreclosure and decree, and the sale and conveyance by the Master.
    Upon demurrer to the complaint, on the ground that the facts stated do not constitute a cause of action, judgment was rendered for the defendants.
    The plaintiff appealed to the General Term.

      Edgar S. Van WinJole, for the plaintiff, appellant.
    I. Russell C. Wheeler, the husband, was seized of an estate of inheritance in the lands in question, during his marriage with the plaintiff, consequently she has a right to be endowed of a third part of said lands. (1 Rev. Stat. 740, § 1. See Park on Dower, p. 5, in vol. 11 of Law Library.) There is no doubt, under our laws, that a mortgagor is seized of an estate of inheritance in the lands mortgaged. The mortgage is a mere security for the debt. ( Waters & Ors v. Stewart, 1 Caines’ Cases in Error, 47; Collins v. Torry, 7 Johns. Rep. 278; Coles v. Coles, 15 Johns. Rep. 319; Bell v. Mayor of New York, 10 Paige, 49, 54; 4 Kent’s Com. 45.)
    II. The wife, then, is entitled to dower in the equity of redemption, even though she may have joined in the mortgage, and is not cut off by the provision of the Revised Statutes. (1 Rev. Stat. 740, § 5.) The object of the statute was to render unnecessary, as against the amount of the mortgage, any release of dower by the wife. If a mortgage were given for other than purchase-money, and the wife did not join in it, a foreclosure in the husband’s lifetime, without making the wife a party, would not cut off her dower. (See 1 Rev. Stat. 742, § 16.) Nor, if the wife joined in such a mortgage, but was not made a party to such a foreclosure, would her dower be barred. (See Statutes as above.) Nor would the husband’s release bar it, as was erroneously held in the case in 6 Cow. 316. (Swaine v. Perine, 5 Johns. Ch. R. 482 ; 4 Kent’s Com. 44.) If it would not be barred in either of said cases, why would it be barred by such foreclosure in a case of foreclosure of a mortgage given for purchase-money ? Certainly not by reason of the foreclosure “ living the husband,” but because she was not endowable in the land at all. The wife is not bound by any proceedings to which she is not a party. (Haines v. Beach, 3 Johns. Ch. R. 461; Tabele v. Tabele, 1 Johns. Ch. 45; Swaine v. Perine; 5 lb. 482.)
    III. The foreclosure “ living the husband, can make no difference in the wife’s rights. (See Bell v. The Mayor of New York, 10 Paige, 49, 67; Denton v. Nanny, et al., 8 Barbour, 618.)
    TV". The wife’s right is—
    1. A right to redeem, or
    2. A right to dower in the land, and mesne profits.

      Jonathan Miller, for the defendants, respondents.
    I. The mortgage given by William A. Burtis to George Rapelje having been foreclosed, and a deed of the premises in question having been given to the purchaser, on a sale made pursuant to the decree therein, and the defendants deriving title under that deed, must be held to claim said title under the said George Rapelje, the mortgagee.
    II. The mortgage being given for the consideration money, and foreclosed during the lifetime of said Burtis and Russell 0. Wheeler, the husband of the plaintiff, in a suit in which Burtis and Wheeler were both parties, neither the wife nor widow of Burtis, nor of Wheeler, is entitled to dower in the premises.
    The provisions of the Revised Statutes are conclusive, as against any such claim on the part of the widow of the mortgagor; that is, if Burtis had died without making a conveyance, his widow would not have been entitled to dower. The 5th section of the Revised Statutes, entitled “ Of Estates in Dower.” 2d Revised Statutes, 4th ed., page 150, is in these words : “ § 5. Where a
    husband shall purchase lands during coverture, and shall at the same time mortgage his estate in such lands to secure the payment of the purchase money, his widow shall not be entitled to dower out of such lands, as against the mortgagee or those claiming under him, although' she shall not have united in such mortgage; but she shall be entitled to her dower as against all other persons.” The 6th section of the same Act is in these words: “§ 6. Where, in such case, the mortgagee, or these claiming under him, shall, after the death of the husband of such widow, cause the land mortgaged to be sold, either under a power of sale contained in the mortgage, or by virtue of the decree of a court of equity, and any surplus shall remain, after payment of the moneys due on such mortgage and the costs and charges of the .sale, such widow shall nevertheless be entitled to the interest or income of the one-third part of surplus, for her life, as her dower.” Taking these two sections together, it is apparent, that if the mortgage be foreclosed during the life of the husband, the widow would not be entitled to have any provision made out of the surplus for inchoate dower, nor to any dower, if she after-wards became the widow of the mortgagor.
    III. The widow of Burtis, if he had not conveyed the premises before the foreclosure and sale, would not, by the common law, have been entitled to dower. (Slow v. Tifft, 15 John. R. 458; Jackson v. De Witt, 6 Cowen, 316; Van Dyne v. Thayre, 19 Wendell, R. 162; Cunningham v. Knight, 1 Barbour, S. C. R. 399.)
    IV. Burtis’s wife, provided he had died without making a conveyance, would not be entitled to dower. The plaintiff claims through Burtis; and as against the defendants, who claim under the mortgagee, she is not entitled to dower. First, the ground upon which the claim of the widow of Burtis would be barred is, that Burtis, as shown by the above authorities, had no seizin of the estate, which subjected it to dower as against the mortgagee or those claiming under him. Second, that he could not convey any greater estate to another, or create any other seizin as against the mortgagee than he owned or held. (Coates v. Cheever, 1 Cowen, 460; Van Dyne v. Thayre, 14th Wendell, 236; Sandford v. McLean, 3 Paige, R. 123.)
   By the Court. Woodruff, J.

The question presented to our consideration on this appeal is, whether the plaintiff is entitled to redeem the premises, in virtue of an interest therein, as the-once wife, and now widow, of Russell C. Wheeler, to whom the premises.were conveyed, subject to a mortgage given thereon for purchase-money by the party from whom his title was derived. And this question involves an inquiry, what were the rights of the plaintiff prior to the foreclosure of that mortgage ? and second, how does that foreclosure affect her ?

It is, of course, conceded, that Russell C. Wheeler, her husband, acquired, by the conveyance of the premises to him, an equity of redemption in the mortgaged premises.

And the general doctrine, well settled in this State, that a wife will be endowed of an equity of redemption vested in her husband during the coverture, is not disputed. (Hitchcock v. Harrington,, 6 J. R. 290; Collins v. Torrey, 7 Ib. 278; Coles v. Coles, 15 Id. 819; Lane v. Shears, 1 Wend. 437, and cases cited.)

But it is claimed, that the mortgage in the present case, being a mortgage given for the purchase-money, neither Burtis nor any grantee under him had such a seizin, that the general doctrine last mentioned is applicable.

This, it is insisted, should be regarded as settled as the law before the Revised Statutes by the cases of Stow v. Tift, 15 J. R. 458, and Jackson v. De Witt, 6 Cow. 316, and unqualifiedly affirmed by the provisions of the Revised Statutes on the subject of Dower, (1 Rev. Stat. p. 740, 744, §§ 4, 5, and 6.)

Section 4 of the statute provides, that where a person seized of an estate of inheritance in lands shall have executed a mortgage of such estate before marriage, his widow shall, nevertheless, be entitled to dower out of the lands mortgaged as against every person, except the mortgagee, and those claiming under him.

This was no restriction of the widow’s right of dower within limits more narrow than had before bounded that right. The Courts had already settled, that a mortgagee has in this State only a chattel interest in the land as security for his debt, and that the freehold remains in the mortgagor. (Runyan v. Mersereau, 11 J. R. 534; Wilson v. Troup, 2 Cow. 196, 7 Cow. 13, Id. 71, 6 Ib. 147, and cases above also cited.)

And that such freehold, being an estate of inheritance, the widow has dower therein subject only to the mortgage; and might as against the heirs-at-law have an assignment of dower and maintain her action at law therefor. (5 J. Ch. R. 452.)

But this right of dower was subject to the mortgage and in entire subordination to the rights of the mortgagee. (See Van Dyne v. Thayre, 14 Wend. 234.)

This fourth section was, therefore, a mere affirmance of the preexisting law as it had been declared by the Courts. It gave the mortgagee no new rights. As against him, she was placed in the same subordination as any other person acquiring an interest subject to the mortgage. That is to say, his title to have and enforce his lien upon the premises could not be prejudiced nor be defeated by the subsequent marriage of the mortgagor.

We are aware that the present is not a cáse under the fourth section. We refer to it, however, because the provisions of the fifth section are so nearly identical in the particulars material to this case that they ought both to be kept in view in determining the intent and scope of the statute.

And this reference to the decisions above noted, and to this section of the statute, shows, we think, that whatever doubt may have existed in England, and formerly in this State, whether the execution of a mortgage so divested the title of the husband that he could not be said to have been seized during the coverture of an estate of inheritance so as to give dower to his wife, is put at rest. He is seized, but that seizin is qualified by the outstanding interest of the mortgagee, and as against such mortgagee no act, conveyance, or marriage will operate to impair that interest.

Upon a consideration of the 5th section, which, it is supposed, governs the present case, it will, we think, appear that these views are material, and furnish a guide to the determination of the rights of the parties.

To the correct understanding of the 5th section, it seems material to observe, that a doubt had existed whether,, on a conveyance to a husband, .he did not become instantly seized of an estate of inheritance; so that his mortgage, given back to secure the purchase-money, was'subject to an inchoate right of dower, acquired by the wife eo instanti the deed to her husband was delivered.

This question was brought before the Court in Stow v. Tifft, (15 J. R. 458,) and it was there urged, that as the conveyance to the husband vested the title in him, before he could in turn reconvey by way of mortgage, the seizin of the husband, though but for an instant, was sufficient to entitle the wife to dower. And Mr. Justice Thompson was of that opinion. A majority of the Court held otherwise.

It will be noticed that, in that case, the premises had been sold under a power of sale contained in the mortgage, and the widow was claiming dower, not in the equity of redemption, but in hostility to the mortgage, at laV, and against the party who held under the mortgage.

This case, therefore, in no wise settled that the wife took no interest in the equity of redemption. That equity of redemption remained in the husband as truly, for all purposes, as if he had bought the land subject to the mortgage. There is no reason whatever for saying that the wife was not as well entitled to dower in that equity of redemption as in any other, nor can the Court be deemed to so hold. The point was, whether she had acquired a right of dower, as against the mortgagee, prior and superior to his right, and the majority of the Court held that she had not. In regard to her equitable right to redeem, or her right as against the heirs-at-law, or purchasers of the equity of redemption from her husband, the Court had nothing to say. Ho question was before them on the subject.

So, in the subsequent case of Jackson v. De Witi, the point really before the Court was the same. The defendant, in ejectment, was in possession under the title of the mortgagee, and it was held that the widow of the mortgagor could not maintain the action to recover her dower. The ruling must have been the same, had that been a case in which her husband had been a purchaser of the premises subject to the mortgage. All, therefore, which was necessarily involved in,- or decided by, these cases, was that the conveyance to the husband, who gave back a mortgage for- purchase-money, did not give Mm such a seizin that the right of dower of the wife attached, intermediate the deed and the mortgage; and, therefore, that she could not maintain an action at law against the mortgagee, or those claiming under him. As against them, she was not entitled at law to dower.

But, in the first case, the decision was made by a divided Court. In the last case, the reasoning of the Judge by whom the opinion of the Court was delivered, is expressed in language which might create what we deem a misapprehension, that the Court thought -she could not have dower, even as against the heirs-at-law, or purchasers from the husband: though, on a careful examination of the opinion, and the facts to which it was applied, it warrants no such view.

In this state of the adjudications on the subject, the Revised Statutes were enacted, and the revisers, having the case of Stow v. Tifft in view, and intending to declare the precise rule of that decision, (see revisers’ notes,) proposed, and the Legislature adopted, the 5th section, the effect of which we are now considering.

By this they provide, in relation to premises purchased by the husband during coverture, and mortgaged at the same time to secure the purchase-money, that “his widow shall not be entitled to dower, as against the mortgagee, or those claiming under him, although she shall not have united in such mortgage; but she shall be entitled to her dower as against all other persons.”

This removed all doubt, if any before existed, whether the deed to the husband gave him such a seizin as let in the inchoate right of dower, to the prejudice of the mortgagee, and yet affirmed her title to dower in the equity of redemption. It placed her in the same situation, or rather declared her to be in the same situation, in respect to her claim to dower, as though she had united in the mortgage, and in the same situation, in that respect, as her husband himself, or any purchaser from him; in short, the mortgagee had a paramount claim against her and them, and neither she nor they could, as against the mortgagee, set up their title.

This was precisely what had been provided by the 4th section, in reference to the rights of a wife in premises mortgaged by the husband before marriage, as already noticed, and as was expressly decided in Van Dyne v. Thayre, (14 Wend. 233,) above cited.

From this time, we apprehend the whole inquiry, whether the seizin of the husband, in an equity of redemption, either by purchase subject to a mortgage, or remaining after a mortgage given by himself before marriage, or resulting from a. conveyance to himself during the coverture, where he executed a mortgage for the purchase-money, was such a seizin as entitled the wife to dower, was settled, and the right in each case was the same. As against the mortgagee, and those claiming under him, she had no legal right. Her interest was wholly subordinate to theirs, and could neither impair nor defeat the mortgage.

But, in each case, the equity of redemption remained. Of this she might yet be endowed. As against all others, her right to dower was unqualified. (Van Dyne v. Thayre, supra)

If the mortgagee was in lawful possession, she could maintain no action against him to recover her dower. If the mortgage was foreclosed, she, as well as every other person interested in the right to redeem, was debarred of her right. In "short, the wife had no interest which created any obstacle to the enforcement of the mortgage, or the maintenance of the rights secured thereby, according to the very tenor of the mortgage. In this sense, she had no dower, as against the mortgagee, and could maintain no action for dower against him, founded on a claim to dower.

The 6th section of the Act, raises no implication inconsistent with this view of her rights. It provides, that upon a sale of the premises after the death of her husband, either by virtue of a power of sale in the mortgagee, or of a decree of a Court of Equity, she shall be entitled to the income of one-third 'of any surplus which may remain after payment of the moneys due on the mortgage. That is to say, such surplus shall not be deemed converted into personal estate, and pass to the representatives of the husband, nor to any then claimant, by purchase from the husband; it shall remain, for all the purposes of seeming her interests, real estate still, and she shall have dower therein, as she would in the proceeds of land sold in partition; and as she would in a portion of the mortgaged premises remaining unsold, after moneys sufficient for the payment of the mortgage had been raised.

Our conclusion is, therefore, that a wife has an inchoate right of dower in the equity of redemption of premises conveyed to her husband, and by him, at the same time, mortgaged back to secure the payment of the purchase-money; that she is directly and immediately interested in the payment of the mortgage debt; that, so long as the title of the mortgagee has not been made absolute by a foreclosure, which is effectual to cut off that equity, she is entitled to pay the debt, and take dower in the premises; that, although she cannot set up a claim to dower as against the mortgagee, to impair or defeat the mortgage, she may avail herself of the right which she has, even at law, as against all others, in any mode not inconsistent with, but in affirmance of, the mortgagee’s interest, and, in equity, may seek a redemption.

This conclusion seems to us fully sustained by the decision in Bell v. The Mayor, etc., (10 Paige, 49;) and we refer to that case, and to Titus v. Neilson, (5 John’s Ch’y, 452,) to Denton v. Nanny, (8 Barbour, S. C. Rep. 618,) and Mills v. Van Voorhis, (23 id. 125,) for a review of the cases bearing upon the subject, which will show much more fully than we have done the course of decision in relation to this subject.

It is proper to add, in this connection, that the case now before us is not literally within the terms of either section of the statute which we have been considering. Here, the mortgage was not given by the plaintiff’s husband, either before or after marriage. Nor was the mortgage one in which, it being given for purchase-money, the wife of the mortgagor did not unite. Burtis and his wife gave the mortgage. Even though there had been no such statute, the wife of Burtis could not claim her dower in the face of her own mortgage, against the mortgagee.

Wheeler, the husband of the plaintiff, was simply the purchaser of an equity of redemption. Neither he, nor his grantors, had any title, except in subordination to the mortgage. But he had a clear equity of redemption, as we think, -with all the incidents belonging to such an equity, whether it is founded upon a title subject to a mortgage for purchase-money, or for any other cause. It is not evident to our minds, that if the mortgage given by Burtis and wife had been a mortgage of premises previously acquired, and given to secure a loan of money, the rights of Wheeler or his wife would have been, in equity, other or greater than they were in the present case. They would have held the premises in subordination to the mortgage, and neither would have any interest, except the right to the possession of the premises, until a foreclosure, and a right to pay off the mortgage, in exoneration of the land.

We have, however, discussed the question as though the terms of the statute embraced this precise case, and have treated the plaintiff as having no other or greater right than Mrs. Burtis would have had if she had not united with her husband in the mortgage.

In the view we have taken of the subject, it is not material that any distinction should be made. It is quite clear that the position of the plaintiff is not less favorable to her claim to redeem, than the position of Mrs. Burtis would have been.

Our conviction is, that the only substantial difference between a mortgage for purchase-money, and a mortgage for any other debt, as respects the right of dower, is this; the former does not require execution by the wife, to become binding upon her, and superior to her right to dower; the latter does.

And in each case, there remains vested in the husband an equity of redemption, in which the wife, if she survive the husband, may have dower, and, in virtue of which, she is entitled to redeem.

It remains to consider how the foreclosure of the mortgage in the life time of the husband affects the plaintiff, she not being made a party thereto.

Although the Chancellor, in Bell v. The Mayor, (supra) forebore expressing an opinion on this question, Vice-Chancellor Ruggles clearly intimates that her right to redeem would not be affected by a foreclosure, in equity, to which she was not a party, and Mr. Justice Emott, of the Supreme Court, is unqualified in the expression of that opinion, in which Mr. Justice Brown concurred. The reasons given in those cases seem to us to be conclusive on the point. (See cases above cited.)

Upon general principles, it would seem quite clear that no separate interest of the wife could be affected by a suit to which she is not a party. Her husband is, in reference to her inchoate right of dower, in no sense her representative.

The doubt which has been thrown around the question results from a want of attention to the same distinction which prevails in relation to the right of the plaintiff. At law, the mortgagee could maintain his possession against an action for dower. When he was in lawful possession, she had no claim, except through a redemption of the premises. Hence it is said, that when the mortgagee is in, by entry or foreclosure, he may defend himself there, and the consent of the husband is sufficient to enable him to obtain possession. Such a possession may be gained through a foreclosure in the life time of the husband, although the wife be not a party. Acquiring all the interest of the husband, is sufficient for that purpose. Further than this, no case has gone which has fallen under our observation.

But a possession gained, does not of itself defeat the equity of redemption: it may be defended at law, until payment of the debt.

We apprehend, that as to the interests of all persons who are not parties to the suit for foreclosure, (either directly or by representation,) the suit is wholly inoperative. Making the husband a party doubtless has the same effect as if he and the mortgagee had united in the conveyance to the purchaser, under the decree, but it can have no greater effect.

On this subject, our statute seems to us too explicit to be open to any general reasoning upon the subject. (2 R. S. 192.) It directs the execution of deeds to the purchaser, and declares that they “ shall vest in the purchaser the "same estate (and no other or greater) that would have vested in the mortgagee if the equity of redemption had been foreclosed; and such deeds shall be as valid as if the same were executed by the mortgagor and mortgagee, and shall be an entire bar against each of them, and against all parties to the suit, and their heirs respectively, and all claiming under such heirs.”

And by the Act in relation to dower before cited, (1 R. S. 741, 742,) it is expressly provided in § 16, that “ no act, deed or conveyance, executed or performed by the husband,......and

no judgment or decree confessed by or recovered against him,. . . .... shall prejudice the right of his wife to her dower, or preclude her from the recovery thereof.”

We are constrained to say that these provisions of the statutes require us to regard the case as though no foreclosure had taken place, so far as the plaintiff is concerned; and the question then recurs,—

Suppose the mortgagee had obtained lawful possession, in the life time of the husband of the plaintiff, and so continued until his death, would she then be entitled to redeem? We cannot hesitate to answer that she would. And if so, a decree recovered against her husband, a sale under such a decree, or even a deed by her husband, does not take away or prevent that right.

The questions, Upon what terms she shall be permitted to redeem ? How much she shall be required to pay ? How the improvements placed upon the lots, since the foreclosure, shall be taken into view to prevent her acquiring a greater interest than would be equitable as against the purchasers ? and, Whether, .seeking her relief, as she is compelled to do in a Court of Equity, she is equitably entitled to a greater interest, upon any terms, than dower in the lots, regarded as vacant and unimproved? and other questions, which we see may arise hereafter, are not now before us. Probably the statute regulating the admeasurement of dower, (2 R. S. 490, § 13, sub. 2,) and the decisions already had on this subject, (Walker v. Schuyler, 10 Wend. 483, and cases cited,) sufficiently establish the rules by which her dower should be allotted, and thus, incidentally, may limit the right to redeem to some very small share of the premises, as they now exist. Our conclusion is, that upon such equitable terms, and with such qualificacations as may, on a more full development of the case seem just and equitable, she is entitled to relief upon the case as exhibited in the complaint: the facts therein stated do constitute a cause of action.

The judgment should, therefore, be reversed, and the demurrer be overruled, with leave to the defendants to answer, upon the usual terms of paying the costs of the demurrer and proceedings thereon at Special Term. The costs of the appeal should abide the event of the suit.

Ordered accordingly.


text:
    Richard Liddle, Plaintiff and Appellant, v. Andrew B. Hodges, Defendant and Respondent.
    1. A landlord has such an interest in knowing the character and reputation of his tenants, that words spoken to him by a third person, in answer to inquiries made respecting the character of a tenant, are, in their nature, privileged; and if the wo^ds are spoken without malice, such third person is fully protected.
    2. The burthen of proving actual malice in the speaking, when the words are spoken on an occasion which creates the privilege, is upon the plaintiff.
    3. The language employed by the defendant, may be such as to warrant the inference of malice, without other proof; and if the Court can see that such an inference may reasonably be drawn from the words alone—as where they are such as to indicate passion, ill-will, or a disposition to incite hostility, or are vituperative beyond what the occasion seems to require—the question of malice should be submitted to the jury; although, if not maliciously spoken, the speaking was privileged.

      4. But, on the other hand, if the Court can see that the language used will warrant no such inference, and there be no other proof of malice, it is the duty of the Court to order a nonsuit, or a dismissal of the plaintiff ’s complaint.
    6. The question of malice in a communication, written or spoken on a privileged occasion, stands in this respect, on the trial of an action of slander, etc,, like . any other question of fact in any other action. It is to be submitted to the jury, if the evidence be such as would sustain a verdict for the plaintiff, and not otherwise.
    (Before Duek, C. J., and Woodruff, J.)
    Heard, October 22d, 1857
    ; decided, March 6th, 1858.
    This action comes before the Court on an appeal from a judgment for the defendant, ordered at the trial, dismissing the plaintiff’s complaint, and awarding to the defendant his costs.
    .The action was tried "before Mr. Justice Bosworth and a jury, on the 29th day of January, 1857. It was brought to recover damages from the defendant, for alleged slanderous words spoken of the plaintiff, by the defendant. u
    The answer stated certain facts, which, if proved, would tend to establish the truth of the words spoken, and denied all other allegations in the complaint.
    The plaintiff’s only witness, who testified to the speaking of the words, also testified to the circumstances under which they were spoken. Both the words spoken and the facts and circumstances so testified to, are fully stated in the opinion of the Court.
    The Judge deemed the proof to establish, that the occasion of the speaking was such that the communication was privileged in its nature, and that there was no evidence of malice on the part of the defendant, which ought to be submitted to the jury. There was no evidence of any extrinsic fact tending to show malice; and it was held, that the words themselves did not warrant the inference of malice in the defendant.
    The plaintiff claimed the right to go to the jury upon the words themselves, and insisted upon his right to do so, and to ask the jury to infer from them, that the defendant was actuated by malice in the speaking.
    But the Judge ordered that the complaint be dismissed; and judgment in favor of the defendant was accordingly entered for his costs of suit. The plaintiff duly excepted to the ruling, and appealed from the judgment to the General Term.

      Although some other exceptions were taken at the trial, it was not suggested, on the argument of the appeal, that any error was committed, except in the ruling above stated, and no other point _ was raised or discussed on the argument.

      I. T. Williams, for the plaintiff (appellant).
    The Court erred, in refusing to submit the case to the jury upon the question of malice.
    I. The privilege of a communication is predicated, not of the communication itself, but of the circumstances under, or occasion upon which it is made, and not of the subject matter of the communication. A communication may be prima facie privileged, although it should contain internal indications of malice. (Wright v. Woodgate, 2 Crompt. Mes. & Ros. 573; Fairman v. Ives, 5 Barn. & Aid. 642.)
    H. Whether a communication, never so privileged, does contain internal evidence of malice, is always a question solely for the jury. ( White v. Nicholls, et al. 3 How. 266.) The Court, in that case, say, “The jury, and the jury alone, were to determine whether malice did or did not mark the publication—the question of malice is to be submitted to the jury upon the face of the libel or publication itself.” (Ex parte Baily, 2 Cow. Rep. p. 479; 6 Cow. 76.)
    III. The meaning of the words—the sense in which they were understood—has always been regarded solely as a question for the jury.
    IY. The Court has no right to take a case away from the jury, on the ground, solely, that the communication is privileged. If the words used would otherwise be actionable, the case must go to the jury upon the face of the publication, to say whether the party did not avail himself of his privileged condition to vent his malice; whether from the face of the publication, aside from the circumstances under which it was uttered or written, they believe the party was actuated by malicious motives. ( White v. Nicholls, 3 How. 266 ; Wright v. Woodgate, 2 Crompt. Mes. & Ros. 573 ; Coward v. Wellington, 7 Car. & P. 531, 536, above cited.) In Fairman v. Ives, (5 Barn. & Ald. 642,) the Court charged the jury, that “if they thought the petition contained only a fair and honest statement of facts, according to the understanding of the party who sent it, they ought to find a verdict for the defendant —leaving it for the jury to say, upon the face of the publication, whether it was malicious; and in commenting upon the case, the Court say, “ unless it be maliciously done, the communication is considered privileged by the occasion on which it was made.”

      William Cogswell, for the defendant (respondent).
    I. The evidence given on the part of the plaintiff at the trial, showed, beyond all question, that the words charged as slanderous were a privileged communication; and the plaintiff, failing to give any proof of malice, was properly nonsuited, (Bromage v. Prosser, 4 B. & C. 256; 10 Eng. Com. Law Rep. 322; Thorn v. Blanchard, 5 John. Rep. 508; Vanderzee v. MacGregor, 12 Wend. 545; Hargrave v. Le Breton, 4 Burr, 2422; 4 Corns. 162, 166.)
    II. There was no error in the ruling of the Court at the trial, and the judgment upon its decisión should be affirmed with costs.
   By the Court. Woodruff, J.

The grounds which are urged in support of the present appeal are embraced within two principal questions—first, Whether the communication made by the defendant, and alleged to be slanderous, was a privileged communication ? and second, If it was in its nature privileged, then whether it should have been left to the jury to say whether it was maliciously made by the defendant?

In relation to the facts proved there is no dispute. The insurance company, of which the defendant was the president, having made an insurance of a building belonging to one Graves, were applied to for an alteration of the policy. The secretary, in reply, not only declined to make the alteration, but, in accordance with a privilege reserved in the policy, notified Graves that he declined insuring the building longer, and that he should'cancel the policy on the 3d of January then next. And in reply to a note of Graves, requesting him to state the reason why the company declined to insure longer, the secretary informed him that if he would call at the office he would speak more fully in reference to the subject.

Graves accordingly called at the office of the company, saw the defendant (the president) and told him he had called to learn why the company declined to continue insuring his building in Brooklyn, and urged him to state the reasons. In answer, the defendant made the communication of which the plaintiff now complains. He (the defendant) inquired if the plaintiff was not occupying a portion of the building; and being answered in the affirmative, he stated that the company would not insure any building where Liddle was. Being asked why ? he said, “ The building where Liddle was, which the company had insured, was burnt down under very suspicious circumstancesadding, “ what would you think of a man being seen around the store the morning of the fire, at two or three o’clock in the morning, before the fire ? There was an old woman that lived in it, or in an adjoining building, who knew more about it than he did, and if she had not died, the company would not have paid the insurance.” The defendant further stated at the time, to the effect, that he did not know the plaintiff, personally, and should not know him if he saw him.

Under these circumstances, we have no hesitation in saying that the communication was in its nature a privileged communication. Not that the communication was absolutely and unqualifiedly privileged, so that it could not be the subject of inquiry ; but that the occasion and circumstances of the speaking were such that the defendant is prima fade protected in his communication, and there could be no recovery against him without proof that the words were falsely and maliciously spoken.

The communication related to the business of the applicant, Mr. Graves, in a particular wherein he was especially interested. If his tenant bore such a reputation that the company deemed it unsafe to insure premises occupied by him, or if the previous experience of the company had suggested such doubts, in regard to his conduct on a former occasion, as would render it proper to decline the insurance, it was of importance to Graves to know it; and it was the plain duty of the officers of the company when called upon and urged thereto to give their reasons, and why the occupancy by the plaintiff was objectionable. . It has often been said that it would be impossible for the affairs of mankind to be conducted, if they who were interested directly in the character of those with whom they deal, or in whom they confide, might not seek and obtain such information and opinions as their neighbors possess without being hindered by the apprehension on the part of such neighbors that suits for slander could be sustained against them for acting in good faith and in entire frankness with those who consult them.

Communications respecting the character of a servant, made in response to an inquiry by one who proposes to employ such servant, are familiar illustrations of the principle. So of communications respecting the standing, character, and credit of one who proposes to deal, as customer, with another, made in answer to the inquiries of such other; and so of communications made to a public officer, leading, as the case may be, to the arrest of a supposed offender.

When a duty to the public, or to the party seeking inform- ' ation, requires that one should freely impart what information he has, or express the opinion his observation or experience has enabled him to form, he is to be protected, unless it is shown that he acted in bad faith, and under the influence of malice.

The rule is very distinctly and clearly laid down by Mr. Justice Parke, in Cockayne v. Hodgkisson, (5 Carr & Payne, 543), and was there applied to a case in which the plaintiff, being a gamekeeper, his employer had requested the defendant (his tenant) to communicate any thing he saw or heard, which was wrong, respecting game on his land.

Whether the facts above recited should have been submitted to the jury, is, however, the question which is most strenuously urged upon our attention by the plaintiff’s counsel. e Upon the proofs stated, the Judge, at the trial, ordered a dismissal of the complaint, or non-suit, on the ground that the plaintiff had failed to prove malice on the part of the defendant. And it is now insisted, that that was exclusively for the determination of the jury, and that the Court had no right to take the case from them, under any circumstances; that, if the communication be slanderous, then, though privileged, the plaintiff has always a right to go to the jury, and submit to them to find, upon the mere face of the communication, whether it was maliciously spoken.

In this, we are quite clear, that the plaintiff is in error, though we fully assent to the general rules upon which he relies. The question of privilege relates to the occasion of the speaking, not to the matter of the communication. Where the facts which go to create the privilege are in dispute, those facts are to be inquired of by the jury; but when the facts are not controverted, the question of privilege is for the Court.

So, when the communication is, in its nature, privileged, the question whether the communication was made bona fide without malice, or was malicious, is a question for the jury; and the communication itself may be of such a character, and bear on its face such evidence of the malice of the defendant, that it may, and ought to be, submitted to the jury.

But the question of malice or no malice, in the defendant, is not otherwise a question for the jury, than questions of fact generally are, in all nisi prius trials. The issues of fact are for the jury. Hothing is more common than to say, that questions of fraud are peculiarly questions for the jury; and yet, this does not mean, that it is any more the duty of the Court to submit that question to the jury, unless the evidence be such as would warrant it, than it is to submit any other question of fact to them, without evidence to support it.

So, the sense in which words spoken were used and understood, is to be submitted to the jury; but not when they are clear and unambiguous, and the circumstances under which they are spoken create no doubt of their meaning.

Hor is it claimed, nor do we hold, that the mere fact that the communication is privileged, gives the Court the right to withdraw the case from the jury where, as in the present case, the privilege is not absolute. If there is any evidence of express malice, either on the face of the communication itself, or in the extrinsic proof, which would sustain a verdict for 'the plaintiff, if the jury should find that the words were spoken maliciously, then, and then' only, the plaintiff is entitled to have the question submitted to the jury; and this is the whole extent of the authorities relied upon by the appellant. And upon that view of the subject, non-suits have been frequently granted.

A jury have no more right to find malice in the defendant, without sufficient evidence, than they have to find any other fact in the plaintiff’s favor, without proof.

And, if the Court can, and does, see, that a verdict against the defendant, upon that question, would be without evidence, it is the duty of the Court to non-suit. The general rule on this subject, is now well settled, as to issues of fact generally. (1 Wend. 376, and other cases cited in 4 Selden, p. 74; 7 Hill, 529.) And there is no ground whatever, for making the question of malice, in this action, an exception. Indeed, the Court of Appeals have gone so far as to say, that the submission of a question of fact to the jury, when there" is no evidence to support it, is error (Storey v. Brennan, 15 N. Y. Rep. 524); and it has often been decided, that a non-suit is proper, whenever a verdict for the plaintiff would be set aside, as against evidence, or as without evidence to support it.

. In this case, the party to whom the defendant’s conversation was addressed, was a dealer with the company of which the defendant was the president. He had an interest in knowing the reason why the company declined insuring his building, and especially in knowing if there was any thing in the character or conduct of the occupants of the building, which either rendered it unsafe, or increased the difficulty of effecting insurance. He applied for the information. Common fairness and frankness, and the confidence which should subsist between dealers, not only justified but required, that the defendant should state what he knew or believed on the subject. There is nothing in what he said that warrants even a suspicion that he did more than this; and so far from importing malice, the whole communication imports that he did no more; since he, at the time, disclaimed any personal acquaintance with the plaintiff, or that he should know him if he saw him.

We have no hesitation in concluding, that, if upon this evidence alone, the jury could have been induced to find that the words were maliciously spoken, it would have been our duty to set the verdict aside, as without any evidence to support it.

In the cases upon which the appellant relies, in which, although the communication was, in its nature, privileged, it was deemed proper to submit the question of malice to the jury, there was either proof of extrinsic facts bearing upon that question, or the manner or terms of the communication, with its details, explanations and imputations, were such as reasonably created a doubt, whether the occasion was not used for the indulgence of spite or ill-will, or in order to accomplish some other and sinister purpose.

In Cockayne v. Hodgkisson, (5 Car. & P. 543,) the communication itself warranted a suspicion, that the object of the defendant was to supplant the plaintiff, and obtain for the defendant the plaintiff’s situation; and White v. Nichols, et. al. (3 How. U. S. Rep. 266,) is, we apprehend, in that respect, of the same character. There the communications were several. They were volunteered without solicitation. Their object was, apparently, to accomplish the removal of the plaintiff from office, and to secure the office for one of the defendants. The terms and style of the communications were vituperative in no slight degree. The Court, at the trial, had not only refused to permit them to be read, but refused to permit extrinsic proof that they were false, in fact, in particulars in which the statements were made as of the knowledge of the defendants. The actual decision upon the reversal, in that case, in no wise conflicts with the views above expressed. And although there are, in the language of the opinion given in the Court at bar, expressions that seem to countenance the proposition contended for by the present plaintiff, we are satisfied that, taken in connection with all the circumstances of that case, there is no reason to regard that case as in conflict with our views. In Coward v. Wellington, (7 Car. & P. 531,) there was -in the extrinsic facts proved, some slight reason to believe that the communication (which, in that case, was voluntarily made, without inquiry or solicitation,) was made in order to injure the defendant, but the case turned mainly on the inquiry, whether, in truth, any damage had resulted therefrom to the plaintiff, (whose wife was the subject of the alleged libel,) and whether her alleged dismissal from service was not merely colorable, and done for the express purpose of bringing the action; and a communication not invited by any previous inquiry, is far more liable to suspicion of malice, than one made in response to inquiries proper to be made, and to which it is the defendant’s duty to reply. (See Pattison v. Jones, 8 Barn. & Cres. 578.) In Rogers v. Clifton, (3 Bos. & Pul.,) the plaintiff proved the communication to be false, under circumstances indicating that the defendant knew the falsehood of his own statements, and that the defendant acted officiously in making it.

On the other hand, cases are numerous in which the plaintiff has been non-suited. In Weatherstone v. Hawkins, (1 T. R. 110,) the verdict for the plaintiff, founded on the mere words of the communication, was set aside, and judgment ordered for' the defendant. In Child v. Affleck, (9 Barn. & Cres. 403,) a non-suit was ordered at the trial, and sustained after argument at bar. And in this State, in Vanderzee v. McGregor, (12 Wend. 545,) the communication being in its nature privileged, the Court determined the question, whether there was evidence sufficient to be submitted to the jury, on the question of malice, and ordered a non-suit, which was sustained.

The judgment "should be affirmed.

Judgment affirmed, with costs.