
    Sarah F. Carpenter, App’lt, v. William F. Carpenter, Imp’ld, Resp’t.
    
      (Supreme Court, General Term, Second Department
    
    
      Filed May 12, 1890.)
    
    Husband and wife — Action between to compel performance of AGREEMENT TO GIVE DEED TO WIFE.
    An agreement by a husband to convey land to his wife, extorted by líelas a condition of signing a mortgage on which to raise .money with which to meet his necessities, is inequitab.e and should not be enforced.
    
      Appeal from judgment of special term in favor of defendant
    Defendant having made an agreement to purchase a livery stable and business, needed $1,500 to complete the purchase, and one Redmond agreed to loan him $2,000 temporarily. Appellant, his wife, told an attorney to prepare the papers, and that defendant was to convey her a portion of the premises, 10 49-100 acres, at the same time. The attorney, through mistake, drew a deed of the entire farm and a mortgage thereon to be executed by appellant.
    At the time the papers were to be passed, the attorney not having been able to prepare the deed of the 10 49-100 acre portion of the farm for the lack of data from which to make a desscriptionj it was agreed that the bond and mortgage to Mr. Redmond should be executed, and the matter of the deed of the 10 49-100 acres should stand over until the final closing of the. permanent loan. The mortgage which had been prepared was thereupon executed by the respondent and appellant to Mr. Redmond for $2,000. It having been originally drawn for execution by the appellant, Sarah F. Carpenter, as owner, the original draft was before execution altered from her name to that of William F. Carpenter, the respondent. Mr. Redmond, the mortgagee, thereupon paid over the amount of the loan. On August 23d, the appellant and respondent came to Mr. Eastman’s office again, he being then ready to close the permanent loan. He had prepared a new bond and mortgage to a Mr. Van Cott and a deed for the 10 49-100 acres, with the buildings thereon, to be executed by the respondent to the appellant.
    The respondent refused to execute this deed, and the- appellant refused to sign the mortgage. This deed of tile 10 49-100 acres was never executed. Ñor was the original deed of the whole farm, which had been in the first instance prepared by mistake. Subsequently Mr. Redmond received from the respondent $1,000 on account of the principal of the mortgage made to him, and released the 10 49-100 acres from the-lien thereof.
    The mortgage to Mr. Redmond contained the following words in the body thereof, following immediately after the descriptive words of tíre boundaries of the mortgaged premises: “ and being a part of the same premises devised to William T. Carpenter, aforesaid, by the will of his father, William C. Carpenter, and being also the same premises conveyed to the said Sarah F. Carpenter by the said William T. Carpenter by deed dated August 20, 1888,” etc.
    The plaintiff demanded judgment that she be declared the owner of the whole farm or of 10 49-100 acres thereof; that the deed be delivered to her, or that defendant execute to her a deed of the 10 49-100 acres.
   The court below delivered the following opinion:

Cullen, J.

If this action be considered, as claimed by plaintiff’s counsel, as one to obtain possession of a title deed, it must fail, because the evidence conclusively shows that -no deed from defendant to plaintiff was ever executed or delivered. If it is to be considered as an action for specific performance, equity should not decree the execution of the contract to convey, for the alleged contract was inequitable.

Arthur R Robertson and L. A. Wray, for app’lt; John Oakey {Garret J. Garretson, of counsel), for resp’t.

The sole consideration of the contract was the execution by the plaintiff of a mortgage for $2,000 by which she subjected her dower right to the lien of such mortgage; her inchoate right of dower could not exceed in value a few hundred dollars. For this she claims she was to receive a conveyance of lands worth $7,000. The husband required the money, and the plaintiff took advantage of his necessities to extort the promise to convey. Such an agreement should not be enforced, especially as the defendant offers to pay off the mortgage, which will i’estore the plaintiff to her original position.

The plaintiff should be relegated to her action at law. If the recital in the mortgage concludes the parties, and estops defendant from denying a conveyance to the plaintiff, then the plaintiff has no necessity for a resort to equity, but must establish her title by an action in ejectment.

Judgment for defendant, without costs (as to plaintiff, his wife).

Pratt, J.

The decision of this case at special term "was placed upon the grounds, first, that it would be inequitable to grant the relief demanded, and, second, that if the recital in the mortgage estopped the defendant from denying a conveyance to the plaintiff, her proper remedy was an action at law in ejectment.

The first ground was sufficient to warrant a judgment and it was amply supported by the evidence in the case. The offer of defendant upon the trial to pay off the mortgage evinced a desire to restore plaintiff to her original position and was all that plaintiff could properly claim in any event upon the facts proved.

It is unnecessary to comment upon the propositions and authorities contained in the elaborate brief of the appellant. We have examined the exceptions and find none sufficient to warrant reversing the judgment.

We think, however, it would be equitable to hold the defendant to his offer to pay off the mortgage, and thus reinstate the plaintiff to her dower right, and the judgment is affirmed upon such offer being executed within a reasonable time, without costs.

. Barnard, P. J, and Dykman, J., concur.  