
    Eliza Ennis, Resp’t, v. Lawrence Ellis, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed March 28, 1888.)
    
    1. Appeal—Limit op matter review able under Code Civ. Pro., § 1850.
    This action was brought to set aside two deeds of the undivided one-half of real property. The parties had intermarried in the year 1873, but separated prior to the commencement of this action. In the year 1876 the plaintiff made a deed of the property to a third party, that he might convey the title to the defendant, which he did shortly after. These two deeds she proposed to have set aside in this action, alleging that the one made by her was the result of duress and threats. Upon the trial of the action, at a special term, judgment was rendered in her favor, and after that a motion made at the general term for a new trial was denied. Held, by Code Civil Procedure, section 1850, upon an appeal to the general term from the final and interlocutory judgment rendered by the special term the final judgment could not be reviewed.
    2. Mortgage—Discharge op—Bond collateral to mortgage is not a charge on land.
    In 1874, the plaintiff executed a mortgage to a third party, who assigned it to the defendant. This mortgage was upon the undivided half interest subsequently conveyed by the plaintiff, and the defendant attempted to set off the amount originally secured by it, with interest thereon, against the rents and profits of the property with which he was charged. This mortgage was satisfied by the defendant in 1876, after the property had come into his hands. Meld, that the mortgage having by the act of the defendant ceased to be a lien upon the property, the fact that he still retained the bond which was the personal obligation of the,plaintiff, furnished no reason for charging the sum originally secured thereby against the debts and profits of the property.
    3. Same—Consideration op mat be inquired into—3 R. S. (6th ed.), 672, § 124.
    It was also claimed by the plaintiff that this mortgage was void for want of consideration. Held, that under the authority of 3 B. S. (6th ed.), 672, § 124, proof of that fact was admissible to overcome the claim made in behalf of the defendant upon it.
    
      4. Statute op Frauds—Contracts upon consideration op marriage, EXCEPT MUTUAL PROMISES TO MARRT, MUST BE IN WRITING-3 BSV Stat. (6th ed.), 142, § 2, sued. 3.
    Evidence was given by the defendant tending to show that before his marriage with the plaintiff she promised to pay. him a stated sum as an equivalent for any right of dower she might have in his property; in case she should survive him, and that the bond and mortgage were executed and afterward assigned to the defendant in performance and fulfilment of this agreement. Held, that this agreement, not being in writing, was void under 2 Rev. Stat. (6th ed.), 142, § 2, subd. 3, requiring every agreement, promise or undertaking, upon the consideration of marriage, except mutual promises to marry, to be in writing.
    
      5. Dower—Right of—On what based.
    
      Reid, that this agreement being void, the plaintiff was under the obligation, after the marriage, although it was solemnized, on faith in this agreement, to pay or secure to the defendant the sum of money previously agreed, but that she was entitled to her right of dower in his property under the law affecting that subject.
    6. Same—Executory agreement for compensation for—May be RESCINDED.
    
      Held, that the agreement, never having been executed, was of no effect; that the bond and mortgage given to secure the payment of the money, were executory contracts, which the plaintiff was at liberty to repudiate or rescind.
    Appeal from a final and interlocutory judgment recovei’ed on trial at the special term.
    
      Robert Johnstone, for app’lt; A. W Gleason, for resp’t.
   Daniels, J.

This action was commenced to set aside two deeds of tlze undivided one-half of real estate situated upon Madison street in the. city of New York. The plaintiff had been the owner of this undivided half, and the other half of the property was owned by her sister, Mrs. Burns. The conveyance made by the plaintiff was to Mr. Joshua EL Deacon, and he conveyed the same interest in the property to the defendant. The deed to him was made for the purpose of enabling him to convey the title, as he did, to the defendant, and both deeds were made in September, 1876.

The plaintiff and defendant intermarried in June, 1873, and separated prior to the time of the commencement of this action. As a ground for the suit, it was alleged in her behalf that the deed was made by herself to Deacon, as the result of duress and threats, and she brought the action for the purpose of setting it aside, as well as the deed from Deacon to the defendant, she tlzereby re-acquiring in that manner the title to this one-half interest in the property. The trial of action at the special term resulted in a judgment in her favor, after that a motion for a new trial was-made before the general term, which was denied and the result of that denial, by section 1350 of the Code of Civil Procedure, is to prevent the defendant from again reviewing that judgment before this court.

The judgment ordered an accounting concerning the rents; and profits of the property while it was in the possession and use of the defendant, and that accounting was. taken before a referee. And upon a hearing at the special term his report was confirmed. It was then, upon appeal, sent back to the referee, for a further accounting, on which he was directed to take proof of cei'tain mortgages relied upon by the defendant as charges against the property, for which he should be credited in the accounting. One of these mortgages was executed by the plaintiff to Thomas Cummins, in April, 1874, and assigned by Cummins to the defendant. This mortgage was upon the undivided interest conveyed by the deed to Deacon, before the execution or delivery of that deed and the amount of the mortgage debt with interest upon it up to the time of the accounting, which was May, 1887, was the sum of $8,499.42.

The object of this proof was to support the claim of the defendant that the amount of the mortgage should be charged over-against the rents and profits of the property to which the plaintiff had become entitled, and the residue of it ordered to be paid by her as a condition for the reconveyance of the title. This view of the evidence was not sustained either by the referee or by the court, and one object of the appeal is to obtain such a modification of the result as to require the amount of this mortgage, to be charged over against the plaintiff. But a decisive objection to making that charge arises out of the circumstances that this mortgage was satisfied of record by the defendant on the 12th of October, 1876, when he was about to execute another mortgage upon the property. It then by his own act ceased to be a lien or encumbrance on this property, and while the defendant, after the satisfaction of the mortgage on the record, retained the bond, that of itself was no charge upon the property in dispute, but was a personal obligation of the plaintiff, if it was capable of being enforced at all. The fact that the debt was no charge or encumbrance upon the real estate was a sufficient reason apparently to justify the decision of the referee excluding it from the accounting, and the determination of the court sustaining his conclusion.

• This mortgage was also resisted on the part of the plaintiff as inoperative and void for the want of a consideration, and proof of that fact was admissible under the statute, to overcome the claim made in behalf of the defendant upon it. 3 R. S. (6th ed.), 672, § 124. To prove a consideration for the bond and mortgage, evidence was given by the defendant himself as a witness, that before his marriage with the plaintiff, she promised to pay him the sum of $5,000, as an equivalent for any right of dower she might have in his property, in case she should survive him, and the bond and mortgage to Cmnmins were executed and delivered, and afterwards assigned to the defendant, in performanco and fulfillment of this agreement. The promise made by her to the defendant, to pay this sum of money to him was not in writing, and on that account was void under the statute requiring every agreement, promise, or undertaking upon the consideration of marriage, except mutual promise to many, to be in writing, declaring the agreement to. be void. 2 R. S. (6th ed.), 142, § 2, sub. 3. She was accordingly under no obligation whatever, after the marriage, although it was solmnized under the effect of this agreement, to pay or secure to him this sum of money, but she was entitled to her right of dower in his property unqualifiedly, as the result of the law existing and declaratory of her rights on that subject. The right was the result of the marriage itself, and not of any contract, or convention between the parties, and having that right she was entitled to its beneficial effect and enjoyment, without either paying or securing to the defendant to be paid, any sum of money whatever on account of it. A subject quite analogous to this was considered in Curry v. Curry (10 Hun, 366), where, however, the agreement between the parties was in writing under their seals. The wife in that instance, prior to the marriage agreed with her husband to relinquish her right of dower in two pieces of property, owned by him and referred to at the time, and the marriage took place pursuant to that agreement. After his decease she claimed her dower in these lands and was held to be so entitled, notwithstanding the agreement she had entered into.

The principle upon which that case was decided is applicable to the one now in controversy, for if she could not bind herself by an ante-nuptial agreement to relinquish her right of dower in the property, it would follow that she could not bind herself to pay a sum of money to her husband for the enjoyment of that right. The principle of that case accordingly seems to be decisive of this. And it was approvingly stated and commented upon in 4 Kent, 55-6.

The law of this state has authorized a woman about to be married, to agree and bind herself by the agreement, to relinquish her dower in the real estate of which her husband may die seized by receiving an equivalent for it in the nature of a jointure.

By such an agreement accepted by her, she may deprive herself of dower in the property of her husband, but by the •instrument attended with that effect an equivalent in property is provided for her, in lieu of and in place of her dower. 2 R. S., (6th ed.), 1121, sections 9-12.

That is as far as the laws of this state have been provided .and extended for the relinquishment of dower by a married woman, or a person about to be married, and the circumstance of its having been extended no further, is an indication that the legislature did not intend to sanction or approve of this law. Certainly, nothing is contained in the statute from which it can be inferred that the agreement entered into between the plaintiff and the defendant was legally binding or operative upon her.

The cases relied upon in support of the binding effect of the agreement do not proceed far enough for that purpose. In neither of them was such an agreement as this sanctioned or approved, and in no instance has effect or validity been given to it, unless it has been carried wholly into execution. This agreement was never executed, for the bond and mortgage given to secure the payment of the money were executory contracts, which the plaintiff was at liberty to repudiate and rescind, at any time before they became, completely executed either by payment or foreclosure. The effect of the decisions is to require that the agreement shall be carried wholly into execution, before the defendant can be allowed the amount nominally unpaid, as a charge against her right to recover of this undivided half of her property. For the reason that it has not been carried into effect it is incapable of being so used, and both the decision, of the referee, and of the court rejecting it, were well supported.

The defendant purchased the half of the same property owned by the plaintiff’s sister, Mrs. Burns, for the sum of ’ $8,500. She was paid $1,000 in money and a mortgage given to her upon the entire estate to secure the residue of $7,500. After that she was desirous of obtaining payment of this sum of money, and the defendant borrowed $10,000 of Mr. Mount, for which he executed a mortgage to him upon the property, in which the plaintiff joined. The residue of the money, beyond the sum required to pay Mrs. Burns, was obtained to liquidate taxes and make repairs upon the land. In the accounting had before the referee such taxes were credited to the defendant, and so were the repairs made from time to time upon the property, and the rents were in like manner charged to him, and one-half of the surplus was credited to the plaintiff. Beyond the credits for taxes paid, the defendant insisted upon an allowance in his favor for interest upon the indebtedñess to Mount. That was disallowed and evidently with very good reason for it, for the plaintiff had no part of the money and apparently no benefit from it, beyond that with which she was charged in the accounting. It was not her debt, but the debt of the defendant, and he alone was chargeable with the interest from time to time accruing upon it. For the disallowance of this interest he has no legal course for complaint, but both in this respect and in all others arising upon the accounting, complete justice seems to have been awarded to him. No grounds appear in the case for disturbing the disposition of it which was made at the special term, and the judgment should therefore be affirmed, with costs.

Van Brunt, Oh. J., and Brady, J., concur.  