
    Taggart v. Wade et al.
    
    
      CSupreme Court, General Term, Second Department.
    
    June 25, 1888.)
    Mortgages—Actions to Set Aside—When Maintainable by Wife.
    Where a wife was not served with process in proceedings to foreclose a mortgage given by herself and husband, her contingent right of dower gives her the right to maintain an action to redeem the premises in her husband’s life-time.
    Appeal from special term, Kings county; Jackson 0. Dykman, Justice.
    Action by Mary P. Taggart against George Wade, executor of the will of Sarah J. Nagle, deceased, John B. Wade, and Mary G. Rogers, to redeem certain property which had been sold under a mortgage foreclosure. The court, at special term, found that plaintiff had a right to redeem, and made an order of reference to compute the amount due on the mortgage. Prom the interlocutory judgment then entered defendants appeal.
    Argued before Barnard, P. J., and Pratt, J.
    
      Z. Sidney Sampson, for appellant Rogers. Billings & Cardozo, for appellants Wade. Franklin & Clifford and A. H. Bartlett, for respondent.
   Barnard, P. J.

The plaintiff joined with her husband in the execution of a mortgage, and upon its foreclosure she was not served with process. The judgment against her was not proper, and she had the right to vacate it. The old chancery rule that a husband could enter an appearance for his wife without service being made upon her seems to have been completely abolished. White v. Coulter, 59 N. Y. 629. If the wife was not personally served it follows that as to her the judgment is void. She still has an inchoate right of dower in the premises. Can she maintain a cause of action on this inchoate right to redeem the mortgaged premises during the life of her husband? If the mortgage be a purchase-money mortgage, the plaintiff was endowed in the equity of redemption. Mills v. Van Voorhies, 20 N. Y. 412. In the case of Simar v. Canaday, 53 N. Y. 298, the court of appeals declared the law settled that “an inchoate right of dower in lands is a subsisting and valuable interest which will be protected and preserved to her, and that she has a right of action to that end.” The case of Witthaus v. Schack, 105 N. Y. 332,11 N. E. Rep. 649, does not change this rule. A wife had been induced by the fraud of her husband to execute a deed. She, after his death, brought her action to set aside the conveyance. The court of appeals held that the estate conveyed was the estate of the husband, and that the dower right was inchoate and a mere chose in action, contingent upon her surviving her husband, and that she, therefore, could not be a witness to prove the fraud, under section 829 of the Code. The question presented in this case was not the wife’s right to protect her possible dower, but what it was after it had become vested and absolute. It was held to be a continuation merely of the estate of her husband. Judgment affirmed, with costs.

Pratt, J., concurs.  