
    Mary P. Taggart, P’lff, v. Mary G. Rodgers et al., Def’ts.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 8, 1890.)
    
    Redemption—By wife of mortgagor not served in foreclosure.
    Plaintiff joined with her husband in a mortgage on his property, which was foreclosed, but she was not served with process in the action. Thereafter and during the life of her husband, she brought this action to redeem. Judgment was rendered denying a redemption in case plaintiff settled or released plaintiff’s dower in the premises. Held, that this was as favorable to the plaintiff as the facts warranted.
    Motion for a new trial under § 1001 of the Code.
    In 1874 James Taggart, the husband of the plaintiff, being the owner of the fee of a house and lot on Willow street, in the city of Brooklyn, executed a mortgage thereof to Sarah J. Nagle. Default having been made in the payment of the interest thereof Mrs. Nagle brought an action of foreclosure, making the plaintiff a party defendant. The plaintiff however was never served with the summons or complaint. Judgment was finally entered in favor of Mrs. Nagle and the premises were publicly sold by the sheriff and • bid in by the defendant John B. Wade. Subsequently he conveyed to the defendant Mary Gr. Rodgers. Plaintiff demanded , the possession of the premises from the defendant, Mrs, Rodgers, and that she account for the profits thereof while in her possession and also tendered and offered to pay what, upon such accounting, should remain due of the principal and interest of said mortgage, and upon her refusal this action was brought to redeem the property.
    The following is the opinion at special term:
    Cullen, J.—I shall assume that the inchoate right of dower of the plaintiff is a sufficient present estate of interest in the premises sold under foreclosure to entitle her to redeem. It was so held by the special term on the former trial and the general term agreed with the special term on this question. The only question, therefore, open before me, is the nature and terms of the redemption to be granted. The foreclosure was not, void, for the owner of the equity of redemption was made a party to it and his estate cut off by the decree and sale. The plaintiff was-not affected by the foreclosure, for she was not served with the process. Her right to redeem rests in equity upon the principle that her rights should not (be) cut off without her day in court. But it seems plain on principle that equity will go only to the extent of protecting the plaintiff’s right and not give her any greater right by reason of the irregular foreclosure than she had before the foreclosure. The rule that a party must redeem the entire premises from the lien of the whole mortgage is primarily for the benefit of the mortgagee, and is not of universal application. Here the plaintiff had, before the foreclosure, an inchoate right of dower in the premises. She seeks by redemption to acquire the fee of the premises. It is not only possible, but in many cases probable, that on account of the enhancement of the value of the premises the purchaser, treating him as a mortgagee in possession, may have been entirely repaid the mortgage debt out of the rents and profits. It may be so in this case. Is the property to be then conveyed to plaintiff without consideration ? Conceding that the defective foreclosure no wise impaired her rights, on what principle of law or equity can it be contended that a defect in a suit to which she was not a party operated to convey to the plaintiff an estate she never before possessed ? In case there should prove something still unpaid on the mortgage, as long as such sum in addition to the value of the estate or lien sought to be protected by the redemption is less than the value of the premises, the injustice of a general redemption still -exists. The difference between the two cases is in degree, not in kind. The foreclosure suit passed to the defendant the title of all parties in interest, save that of the plaintiff. Of the title so acquired by defendant she should not be deprived, if she is willing to release the estate of the plaintiff from the lien of the mortgage, or to satisfy the plaintiff’s claim. Thus the plaintiffs rights will be protected and the defendant will not be deprived of her purchase.
    I am not without authority to justify this course. In Boqut v. Coburn, 27 Barb., 230, the plaintiff, a subsequent purchaser of a part of the mortgaged premises, had been omitted from the foreclosure suit and brought the action to redeem. The judgment entered gave the defendant the right, if he so elected, to retain the residue of the lands upon his releasing the plaintiff’s lands from the lien o_ his mortgage. As the defendant alone appealed, the discussion in the opinion, as to how a right of redemption should be-had, may be said to be obiter. But granting that the principle-enunciated by the court has not the weight of authority, it seems, to me unassailable in law or logic.
    Judgment should be entered that a redemption be denied, upon defendant's releasing plaintiff’s right of dower from the mortgage under which her title is derived, or paying the present value of plaintiff’s inchoate right (as to these alternatives the plaintiff is to have the right of election) ; if defendant fails to so satisfy or release plaintiff’s dower, then that plaintiff may redeem the premises upon paying the amount due on the mortgage, after charging defendant with the rents and profits, and crediting her with payments and disbursements properly made for the benefit of the premises, costs to neither party.
    
      Clifford A. H. Bartlett, for pl’ff; Martin & Smith (Cep. A. Strong, of counsel), for def’ts.
   . Pratt, J.

This a motion for a new trial under § 1001, Code of Civil.Procedure.

It appears that prior to 1874, James Taggart, the husband of the plaintiff, was the owner of a house and lot in Brooklyn and she joined with her husband in a mortgage for a valid consideration which was afterwards foreclosed and sold under such decree in 1877, and defendant’s grantor became the purchaser.

The plaintiff was never served in the foreclosure suit although she was made a party.

The plaintiff now seeks to redeem the premises so sold by paying the judgment in the foreclosure suit after charging the defendant with the rents and profits since she entered into possession.

The question whether the plaintiff can make any valid claim, her husband being still alive and her claim being solely based upon an inchoate right of dower, is not raised upon this appeal, as the court at special term held “ the plaintiff’s inchoate right of dower gave her the right to redeem said mortgaged premises ” and there is no appeal on the part of the defendant.

The court, however, while holding that plaintiff had a right to-redeem, in effect restricted the recovery to her dower right

The case stands precisely as if James Taggart had deeded the property to the defendant, his wife not joining in the deed and releasing her inchoate right of dower; in other, words, her rights, have not been affected to her prejudice in the least degree.

The defendant has lawfully acquired the fee of the land subject to the incumbrance of the plaintiff’s inchoate right of dower, and the question arises as to which party has the right, one to discharge an incumbrance, or the qther to redeem under the facts disclosed in the record

In case of the death of her husband she could claim a life estate in one-third of the premises; is it reasonable that she can claim now upon an inchoate right that the defendant shall sell her the whole premises with improvements ?

In the former case the defendant would be allowed to retain the property and pay a fixed sum for dower; why cannot equity permit her now to discharge this incumbrance upon just principles?

We think the judgment rendered at special term was as favorable to the plaintiff as the facts warranted. ,

The opinion rendered at the trial discusses with great force the reasons for the judgment as rendered, and the position seems in-assailable.

The cases cited by plaintiff do not controvert the principles laid lawn in the decision at special term. It is conceded that the husland is bound by the foreclosure judgment, and has no right to redeem. How by this judgment the plaintiff is allowed to redeem all the rights she ever had in the premises. In fact there is no necessity for redemption, for her rights have never been invaded bj the defendants nor put in jeopardy by the foreclosure proceeding.

7be same principle of redemption was applied in the case of Boc^t v. Coburn, 27 Barb., 280, and has never been overruled.

Notion for new trial denied, with costs.

Bernard, P. J., and Dykman, J., concur.  