
    Georgiana Nichols, Plaintiff, v. William G. Park, Defendant.
    (Supreme Court, New York Special Term,
    June, 1902.)
    Dower —. Complaint for defeating inchoate right — Seizin — Demurrer.
    A complaint which alleges that in 1872, in order to defeat her Inchoate right of dower, the plaintiff’s husband “ contracted in writing with one James E. Cobum to purchase from said Coburn ” certain real property described, that the husband paid all the consideration, that he took title in the name of his brother, that after the plaintiff obtained a divorce in Connecticut her husband took the record title, that he occupied at ail times until his death in 1902, and shortly before his death conveyed to one who conveyed to the defendant,. States a cause of action for an inchoate right of dower in said property as it appears that the husband had such seizin thereof as would permit dower to attach, since it may be inferred that he could have maintained an action for specific performance against Coburn if he had paid him the agreed price.
    Demurrer to complaint.
    Alexander Thain, for plaintiff.
    William H. Stockwell, for defendant.
   Fitzgerald, J.

The plaintiff and William B. Nichols were lawfully married about October 20, 1857. In February, 1872, William B. Nichols (the husband) contracted in writing to purchase from James E. Coburn the premises Eo. 16 East Seventy-fourth street, in the city of Eew York, but, for the purpose, as plaintiff claims, of preventing her inchoate right of dower from attaching, title in the first instance was taken in the name of the vendee’s brother, John J. Nichols, notwithstanding that the full consideration was paid by the husband, who immediately entered into possession and continued to occupy the premises from that time until his death, in January, 1902, a period of thirty years. On or about September 3, 1877, a final judgment of divorce was entered in the Supreme Court of the State of Connecticut for the county of Fairfield in favor of the plaintiff and against William B. Eichols. About August 25, 1886, William B. Nichols took record title to the property, and in Hay, 1901, conveyed the same to Hary Ida Nichols, who, some months thereafter, transferred the premises to the defendant. These facts are set forth in the complaint, and defendant demurs to that pleading on the ground that it does not state facts sufficient to constitute a cause of action. In support of the demurrer defendant cites the case of Phelps v. Phelps, 143 N. Y. 197, and claims that the precise question raised in the case at bar was decided against the plaintiff in that action. I have carefully considered the reasoning of the case relied upon and am convinced that the facts in the pending action are capable of being distinguished in marked degree from the facts then before the court, and to which the principles therein enunciated were applied. In Phelps v. Phelps, supra, the conveyance was directly to a dummy, and, as the court, said (at p. 200), the lands “ were never conveyed nor agreed to be conveyed to him ” (the husband), and again at page 201: “ But unless he was actually seized, or unless he had such a seizin at law as would entitle him to its possession, it is difficult to see how his wife could claim that she ever gained any dower interest.” By paragraph 3 of the complaint herein it is averred that “ William B. Nichols contracted in writing with one James E. Coburn to purchase from said Coburn ” the premises in question. This statement would fairly imply that upon payment of the agreed price the vendee might compel a specific performance by the vendor, and this was clearly such a seizin in law as would entitle him to its possession. “ But if, at the time of the transfer, the husband has the right to be invested with the legal title, and is in a position to compel the conveyance of such title to himself, the right of dower attaches.” Clybourn v. Pittsburg, Ft. W. & C. R. Co., 4 III. App. 463. The husband, being in a position to possess himself of the property, sought, by the device of taking the title in another name, to deprive his wife of her rights. The case is one which calls for the application of the maxim that “ equity looks upon that as done which ought to be done.” Demurrer overruled, with leave to defendant, to answer within twenty days upon payment of costs.

Demurrer overruled, with leave to answer within twenty days upon payment of costs.  