
    John Hinchliffe, Resp’t, v. Margaret Shea, App’lt.
    
    
      (Court of Appeals,
    
    
      Filed October 5, 1886.)
    
    Dower—Joinder by wife in mortgage—Failure oe mortgage.
    Where the wife joined with her husband in a mortgage to secure his debt and the land mortgaged was sold under a prior judgment against the husband, the purchaser conveying the land back to the wife after her husband’s death. Held, that the mortgage of the husband being of no effect, the mortgage by the wife of her right of dower could not stand independently, but was also of no effect, and her dower interest in the land could not be subsequently foreclosed under such mortgage.
    The defendant joined with her husband in a mortgage to secure the payment of a debt. Subsequently the husband’s estate was sold under a judgment of a date prior to that of the mortgage and a sheriff’s deed given to the purchaser who conveyed to the defendant, a short time after her husband’s death. This action was brought to foreclose the dower interest of the defendant and judgment of foreclosure, and sale was ordered. This judgment was appealed from by the defendant and affirmed at the general term, and the defendant appealed to this court.
    
      Wm. N. Dyckman, for app’lt; James M. Baldwin, for resp’t.
    
      
       Reversing 34 Hun, 365.
    
   Andrews, J.

The joinder of a married woman with her husband in a deed or mortgage of his lands does not operate as to her by way of passing an estate, but inures simply as a release, to the grantee of the husband, of her future contingent right of dower in the granted or mortgaged premises, in aid of the title or interest conveyed by his deed or mortgage. Her release attends the title derived from the husband, and concludes her from afterwards claiming dower in the premises, as against the grantee or mortgagee, so long as there remains a subsisting title or interest created by his conveyance. But it is the generally recognized doctrine that when the husband’s deed is avoided, or ceases to operate, as when it is set aside at the instance of creditors, or is defeated by a sale on execution under a prior judgment, the wife is restored to her original situation, and may, after the death of her husband, recover dower as though she had never joined in the conveyance. Robinson v. Bates, 3 Metc., 40; Malloney v. Horan, 49 N. Y., 111, Ketzmiller v. Van Rensselaer, 10 Ohio St. 63; Littlefield v. Crocker, 30 Me., 192.

In short, the law regards the act of the wife in joining in the deed or mortgage not as an alienation of an estate, but as a renunciation of her inchoate right of dower in favor of the grantee or mortgagee of her husband in and of the title or interest created by his conveyance. It follows, therefore, that her act in joining in the conveyance becomes a nullity whenever the title or interest to which the renunciation is incident is itself defeated. Scrib. Dower., c. 12, § 49. The wife’s deed or mortgage of her husband’s lands, cannot stand independently of the deed of her husband, when not executed in aid thereof, nor can she by joining with her husband in a deed of lands to a stranger, in which she has a contingent right of dower, but in which the husband has no present interest, bar her contingent right. Marvin v. Smith, 46 N. Y., 571.

These principles are, we think, decisive of this case. The plaintiff’s mortgage has been defeated by the paramount title derived under the execution sale. It was the husband’s mortgage, and not the mortgage of the wife, except for the limited and special purpose indicated. The lien of the mortgage, as a charge on the lands of the husband has, by the execution sale, been subverted and destroyed; nor can the security be converted into a mortgage of the widow’s dower, now consummate by the death of her husband. This would be a perversion of its original purpose. Her act in signing the mortgage became a nullity on the extinguishment of the lien on the husband’s lands. If on the execution sale there had been a surplus applicable to the mortgage, it might very well be held that the widow could not be endowed therein, except after the mortgage had been satisfied. The surplus would represent in part the mortgaged premises. See Elmendorf v. Lockwood, 57 N. Y. 322.

We think the authorities require a reversal of the judgment. Judgment reversed, and complaint dismissed, with costs.

All concur, except Miller, J., absent.  