
    Walburga C. Meixel, Appellant, v. Elizabeth Meixel, Respondent, Impleaded with Charles A. Meixel and Others, Defendants.
    First Department,
    March 20, 1914.
    Dower — effect of oral agreement by husband to give “a proper and sufficient mortgage ” for moneys advanced — specific performance.
    An oral agreement by a husband, to which his wife is not a party, to give “a proper and sufficient mortgage” upon property in which he owns a half interest to secure the payment of moneys advanced for the payment of taxes, water charges, insurance, etc., has no effect upon the wife’s dower rights, nor upon the interest of a son, in the property which passed to his mother upon his death.
    As the agreement to give a mortgage did not state what its terms and conditions were to be, it cannot be enforced by specific performance.
    Appeal by the plaintiff, Walburga C. Meixel, from a judgment of the Supreme Court in favor of the defendants, entered in the office of -the clerk of the county of New York on the 11th day'of September, 1918, upon the decision of the court after a trial at the New York Special Term.
    
      
      Alexander Thain, for the appellant.
    
      Isaac Dobroczynski, for the respondent.
   McLaughlin, J.:

This appeal is from a judgment which adjudges that the plaintiff’s dower rights in the premises described in the amended complaint, and her interest as mother and one of the heirs at law of Charles L. Meixel, deceased, are subordinate to an equitable mortgage of Elizabeth Meixel, the respondent. On March. 25, 1894, plaintiff married Anton Meixel, who died on the 21th of August, 1911, leaving him surviving the plaintiff and two infant children, Elizabeth W. and Charles L. (now deceased), as his only heirs at law and next of kin. The premises described in the amended complaint were conveyed on the 3d of January, 1899, to Anton Meixel and his mother, Elizabeth Meixel. On the 24th of July, 1902, the respondent conveyed to Charles A. Meixel, a brother of Anton, her interest in the premises* In June, 1904, Anton and Charles A. executed and delivered to the defendant Petrie a mortgage, in which plaintiff joined, for $1,000. The court found as a fact that on or about the time the respondent conveyed her interest to Charles A., he and Anton agreed that in consideration of her paying the taxes, water charges, insurance premiums and other necessary expenses attendant upon keeping up the propertv, they would pay her, when the same was sold, what money she had theretofore or might thereafter advance, and to secure such payment “would execute, acknowledge and deliver to the said Mrs. Elizabeth Meixel a proper and sufficient mortgage” upon the property; that in pursuance of the agreement she advanced, over and above the rents received, $8,662.92; and, as a conclusion of law, that she had a lien upon the premises for this amount which was superior to the plaintiff’s right of dower or her interest as the mother and one of the heirs at law of her son Charles L. Judgment was entered to this effect, from which the appeal is taken.

The judgment, in so far as it affects the plaintiff, is erroneous. (No question is raised as to the Petrie mortgage being a first lien upon the pi’emises.) The statute gives to a widow a “ third part of all the lands whereof her husband was seized of an estate of inheritance at any time during the marriage ” (Eeal Prop. Law [Oonsol. Laws, chap. 50; Laws of 1909, chap. 52], § 190), and of this she cannot be deprived without her consent.

The plaintiff’s husband acquired a half interest in the property in 1899. The agreement was not made until something like three years thereafter and she was not a party to it. Obviously, under such circumstances, it had no effect upon her dower rights. Indeed, 'had a mortgage been given at that time and she had not joined in it, the same result would have followed. Nor did this oral agreement have any effect upon the interest which the son Charles L. took as heir at law of his father and which passed to the mother, the plaintiff, upon the son’s death. A lien upon land cannot be created by an oral agreement to give a mortgage, and, if it could, the agreement as found by the court is so indefinite that it could not be enforced. It was to give “a proper and sufficient mortgage.” What its terms and conditions were to be were not stated. For this reason specific performance of the agreement could not be decreed.

The judgment, in so far as it adjudges that there was an equitable mortgage and that the plaintiff’s right of dower and her interest as mother and one of the heirs at law of Charles L. Meixel are subordinate to the claim of the respondent, is reversed, as are the findings of fact to that effect and conclusions of law based thereon, and judgment directed, subject to the Petrie mortgage, in favor of the plaintiff for the relief prayed for in the amended complaint.

Ingraham, P. J., Laughlin, Clarke and Scott, JJ., concurred.

Judgment reversed and judgment ordered for the plaintiff to the extent stated in opinion. Order to be settled on notice.  