
    Eliza Maloney vs. John Horan, impleaded, &c.
    The legal effect of a wife’s uniting with her husband in a conveyance of his lands is to release her dower. Before admeasurement, she has no interest * or estate in the lands, and her deed operates not as a grant, but as an estoppel.
    When the deed of the husband has been avoided, at the suit of creditors, on the ground that it was made with intent to hinder, delay or defraud them, there remains an estate in the fraudulent grantee, which is sufficient to support or feed this estopppl; for the fraudulent deed is good and effectual as between the parties to it. A payment by the fraudulent grantee or grantor to the creditors, of their debts, would extinguish the same, and render his title valid.
    Whatever consequence may ensue from proceedings by the creditors in invitum, upon the estate fraudulently conveyed, is attributable to the statute, which, in conjunction with the decree, acts directly upon such estate, and divests so much thereof only, as may be necessary to obtain satisfaction of the claims of creditors ; and the wife’s dower in that part of the estate so divested will be as effectually barred as in the part which may remain vested in the fraudulent grantee. There cannot, in the nature of the case, be any severance.
    And so if the whole estate be taken away; because this results from the enforcement of the remedy, and not because the fraudulent deed conveyed nothing to the grantee.
    Where a wife, after having knowingly and designedly participated in her husband’s fraud, by joining with him in conveying his land to a third person, for the purpose of defrauding his creditors, takes from such fraudulent grantee a conveyance of the same premises, the court will not help her to undo the consequences of her acts, one of which was to accept a merger of her- dower, in the fee conveyed to her.
    As a wife cannot be endowed of her own lands, the taking of such a conveyance will destroy the claim, if any, which previously existed.
    Where the plaintiff, having a claim of dower in premises advertised to be sold by a receiver, attended the sale, and requested the defendant to purchase the property, stating that she had no claim thereon, on the faith of which the defendant became the purchaser, and the plaintiff subsequently took a lease of the premises, from him; Held that these circumstances worked a perfect and effectual estoppel in pais, against any claim or title of the plaintiff in hostility to that which the defendant acquired at such sale. Lott, J. dissented.
    APPEAL by tbe plaintiff from a judgment ordered at a special term, on a trial before the court! without a jury. The plaintiff, as the widow of Patrick Maloney, deceased, brought this action to recover her dower interest in certain real estate situate at Hunter’s Point, Queens county.
    The facts are briefly these: Patrick Maloney, being the owner of the premises described in the complaint, on the 11th of ¡November, 1864, conveyed the premises to hi's brother, Michael Maloney, for the nominal consideration of $1. The plaintiff, Eliza Maloney, joined in this conveyance and released her dower; and on the 28th of December, 1864, Michael Maloney conveyed the premises in fee to the plaintiff Both of these conveyances were duly acknowledged and recorded in the office of the clerk of Queens county. In March, 1865, judgment was recovered against Patrick Maloney for $1946.14. Subsequently, upon proceedings supplementary to execution, a receiver of the property, &c. of Patrick Maloney was appointed. On the 10th of April, 1865, the receiver brought an action in the Supreme Court against Patrick Maloney, Miza Maloney and Michael Maloney, for the purpose of having the above mentioned conveyances set aside and declared fraudulent and void as to creditors of Patrick Maloney. All of the defendants appeared and answered the complaint. The issues so joined were tried, and judgment was, on the 17th of ¡November, 1865, rendered, declaring that the conveyances were void, as having been made to hinder and defraud creditors; and directing the premises to be sold; and further ordering that any of the .parties who should be in possession should deliver possession thereof to thé purchaser. Under this order, the receiver sold the premises to John J. Conklin for .$6100, subject to a mortgage of $750, and Conklin assigned his bid to the defendant Horan. On the morning of the sale, and. prior to the property being offered for sale, the plaintiff called at Horan’s place of business and asked him to attend and bid, informing him that she had no claim upon the property. Conklin' the purchaser, was present at this time. The plaintiff, Horan and Conklin attended the sale, and were present when the terms of sale were read, by which it was stated that the premises would be sold subject to the $750 mortgage. The report of sale having been confirmed, the receiver, on the 31st of July, 1867, conveyed the premises to John Horan. The price paid was the full value of the premises at the time of sale.
    The court found the above facts, substantially; and as a conclusion of law decided and determined that the plaintiff had no estate of dower in the premises described in the complaint, and that judgment should be rendered for the defendant dismissing the complaint, with costs.
    
      Amasa A. Bedfield,
    for the appellant. I. 1. It has been said that the right that a dowress has to her dower is not only a legal right, and so adjudged in law, but she has also a moral right, to be provided for, and have a maintenance and sustenance out of her husband’s estate, to live upon. She is therefore in the care of the law, and a favorite of the law. And upon this moral law is the law of England founded as to the right of dower. (1 Story's Eq. Jur. § 629.) “ Her estate is favored in the law, and proceedings having in view its enforcement or establishment should be encouraged rather than defeated.” (In re Sipperly, 44 Barb. 370.) 2. It is the rule of the common law, and is incorporated in the statutes of this state, that nothing that the husband can do—no act, deed or conveyance of his, or judgment or decree confessed by or recovered against him, shall prejudice the wife’s right to her dower. (Denton v. Nanny, 8 Barb. 618. 1 R. S. 742, § 16.)
    H. 1. A release of dower can operate only as a release. It must accompany the conveyance of another, and ceases to operate with that. It cannot operate as the transfer of an independent estate. If the principal instrument (the deed or the mortgage, as the case may be) is canceled, or never takes effect, or ceases to operate, the release of dower falls with it. The right of dower revives. (Hal
      
      stead v. Eldridge, 2 Halst. 392. Douglas v. McCoy, 5 Ohio Rep. 527. Powell v. Morison, &c. Mfg. Co., 3 Mason, 347. Hall v. Savage, 4 id. 273. Barker v. Parker, 17 Mass. Rep. 564, and cases cited below.) 2. In this case the deed, in which and by which she released her dower, was by a competent tribunal declared void. It then instantly ceased to operate. The estate upon which the release was designed to operate was defeated; the grantee could claim, nothing, and in the absence of fraud on her part, her right of dower was restored. In Summers v. Babb, (13 Ill. Rep. 483,) the creditors of the grantor avoided the conveyance of the husband and wife, and it was held that thereby the estate upon which the release of dower was designed to operate was defeated. Hence the widow should be restored to her right of dower. (See also Blair v. Harrison, 11 Ill. Rep. 384.) In Stinson v. Summers, (9 Mass. Rep. 143,) it was decided that where a wife releases her claim of dower by joining her husband in a conveyance, and the purchaser recovers damages of the husband for breach of covenant of-title, the release of the dower then becomes void and does not bar her right of dower after her husband’s death. The reason is that by defeating the estate upon which the release of dower was intended to operate, the purchaser can claim nothing by his deed.
    III. The plaintiff further claims that she is not estopped from claiming her dower, by reason of her having joined in the fraudulent conveyance of her husband, because, 1.. The defendant is a stranger to the release. He is a third party with notice. He can derive no advantage from it. As against him she is not estopped, for by the well known maxim, estoppels must be mutual and reciprocal. A release of dower is binding only as against the releasee and his privies. (Littlefreed v. Crocker, 30 Maine Rep. 192. Harriman v. Gray, 49 id. 537. Pixley v. Bennett, 11 Mass. Rep. 298. Blain v. Harrison, 11 Ill. Rep. 384. Robinson v. Bates, 3 Metc. 40. Taylor v. Fowler, 18 Ohio Rep. 567. 
      Woodward v. Paige, 5 id. 70. Ketzmiller v. Van Rensselaer, 10 id. 63. Summers v. Babb, 13 Ill. Rep. 483. Gore v. Cather, 23 id. 634. Harrison v. Eldridge, 2 Halstead, 392. Richard v. Talbird, Rice’s Eq. So. C. 128. Pierson v. Williams, 23 Miss. Rep. 64. Randolph v. Doss, 3 How. Miss. 205. Gray v. McCune, 23 Pa. St. 447, 451.) 2. Is the defendant a privy to this void deed, or to the plaintiff’s release? He derives no title from the plaintiff nor from the fraudulent grantee. On the contrary, he holds in direct opposition to them. His' title is predicated on the absolute nullity of that deed and release. He is not in any way a privy to it. (See Ketzmiller v. Rensselaer, 10 Ohio St. 63; Taylor v. Fowler, 18 Ohio R. 567; Harrison v. Eldridge, 2 Halst. 392; Gore v. Cather, 23 Ill. R. 634; Robertson v. Bates, 3 Metc. 40.) 3. But admit, if it is consistent with common reason to do so, that the defendant is in some way a privy to the fraudulent deed. Yet the widow is not estopped. This deed was adjudged void on the sole ground of an intent on the. part of her husband to thereby‘hinder, delay and defraud his creditors. There is not a suspicion that the wife was a party to this fraud. She could not have been a party to it, for the sufficient reason that by her release she placed nothing beyond the reach of creditors, to which they were entitled, or could obtain by any process of law. She is not a fraudulent grantor. The case of Winship v. Lamberton, referred to in Woodworth v. Paige, (5 Ohio St. 70,) is in point, In that case lands had been conveyed without consideration, and in fraud of the creditors of the husband. Judgment having been afterwards recovered against the husband, and execution levied, the lands were sold and conveyed by the sheriff. The purchasers at the sheriff’s sale brought ejectment against the fraudulent grantees, and .recovered on the ground of the fraud in the conveyance. On a bill filed to quiet their title, the question of the right of dower of the widow of the fraudulent grantor arose, and it was held that she was entitled to it. (See also Miller v. Wilson, 15 Ohio St. Rep. 108, 117.)
    . IV. I am unable to find any ease in this or any other state, which on a close examination will be found to conflict with the principles established as the law.in the foregoing cases. 1. The head note of the case of Manhattan Co. v. Evertson, (6 Paige, 457,) states a contrary doctrine, and a doctrine, too, entirely contrary to that adjudged by the court in, that case. That case was this :■ One Evertson, being in embarrassed circumstances, conveyed certain real estate to his son, his wife uniting in the deed. The son executed back a declaration of trust to sell the property, pay the incumbrances and then to pay one Enrot $1500. After a foreclosure and sale of the premises on an application for a distribution of the surplus moneys, the widow of Evertson (he having in the meantime died) claimed her thirds out of the surplus. The vice-chancellor refused to allow her dower and the chancellor sustained his decision. But the facts'of this case, and the ground upon which the decision was placed, are essentially different from those cited above and from the one at the bar. It is true, that no consideration was paid by the grantee in that ease, hut the conveyance was made upon certain trusts duly specified in writing, which were pronounced fair and honest by the vice-chancellor, and to the extent of which the’deeds were sustained by both him and the chancellor. As against the grantors, therefore, and, to the extent of those trusts, as against subsequent incumbrances also, the grantee was lawfully invested with the legal title for a proper purpose. The only interest, if any, remaining in the husband, was a resulting trust, and this was a mere equity, of which (before the Revised Statutes) the widow was not endow-able; it followed that she was not entitled to dower in the surplus arising from the sale of the"lands. The difference between a case of this character and one where the conveyance was for the sole and only purpose of defeating creditors, and is without any consideration whatever, is clearly and distinctly marked. (See 1 Scribner on Dower, 617, § 9.) 2. The only other case is a case in the New York Superior Court, Meyer v. Mohr, (1 Rob. 333,) in which, on setting aside a conveyance made by husband and wife as being void as against creditors, the referee decreed that the husband and wife should join in a new conveyance to a receiver for the benefit of creditors. This part of the decree does not appear to have been argued, and the court affirmed that part of the report by a paragraph, evidently without much consideration. But it does not appear in the ease, but that the wife was a party to the fraud. And also it may be that the decree was so made to quiet the title as against the fraudulent deed, which by the same decree was declared" void. The widow might still claim her dower. 3. The principle contended for is at the foundation of the case of Wiswall v. Hall, (3 Paige, 313,) where it was held that the wife is not affected by the fraudulent acts of the husband in consummating his contracts of sale, although she unites with him in a conveyance of the lands. Thus in this case, a vendor of a lot of land secretly intended to sell only a part of a lot, but made the vendee" to understand that he was buying the whole of it, and only a part of the lot was included in the deed, for which the vendee paid the vendor the entire consideration intended by him to be given for the whole lot. The court compelled the vendor to execute to the vendee a conveyance of the whole. But the wife not being privy to the fraud attempted to be practiced upon the purchaser, although she had joined in the deed, the court refused to compel her to join in the new conveyance. •
    Y. Some intimation was made at the trial, that the facts found in paragraph eight of the findings, (viz. as to the plaintiff’s statement to Horan, that she had no claim upon the property,) created an equitable estoppel against the plaintiff’s claim for dower. 1. It is only necessary on this head to remark that there was no proof, and is no finding, that she intended to mislead. This is' necessary. (Lawrence v. Brown, 5 N. Y. Rep. 394. Chautauqua Co. Bank v. White, 6 id. 236. Jewett v. Miller, 10 id. 402.) Non constat, hut she requested Horan to purchase, because he was her friend and she could buy her homestead back from him on better terms than she could get from a stranger. And, .indeed, the plaintiff swore on the trial that this was the object of her request. 2. The defendant was not misled.. There was no proof, and is no finding that he placed any reliance upon her statements. What man of ordinary capacity, in buying a piece of real property, relies upon the statements of a woman as to the title ? He knew that she was Maloney’s widow. 3. He did not act upon her statements. Another man bought the property at the public sale. Only ten per cent was paid down. Afterwards Horan bought the bid, having in the mean time ample opportunity to search the title through a lawyer, as indeed he did, as testified to on the trial.
    VI. If this plaintiff is turned out of court, and deprived of “ that moral and legal right of dower,” are “ her proceedings, having in view its enforcement, encouraged ?” Is she any longer “ in the care of the law and the favorite of the law ?” She is rather its victim: and the principles of law which she had supposed to be the sure protection for the weakness of her sex, are become the instruments of her impoverishment.
    
      John J. Armstrong, for the respondent.
    I. The plaintiff, Eliza Maloney, having been a party to the conveyance to Michael Maloney, her right of dower to the premises in question was extinguished, although the conveyance was subsequently declared fraudulent and void as to creditors. As against herself and husband the deed would remain a bar. (Den v. Johnson, 3 Harrison, 87. Manhattan Co. v. Evertson, 6 Paige, 457. Meyer v. Mohr, 1 Rob. 333.) The plaintiff having joined with her husband, with the intent to defraud his creditors, and this object having been frustrated, the court will not now allow her to commit another fraud by a repudiation of her own deed. As was well said by the Superior Court, in 1st Robertson, she having united in the fraudulent deed, “ she thereby divested herself of her inchoate right of dower, and must abide the consequences.’’ The following cases also sustain the principle upon which the decision of the court below is based: Osborne v. Moss, (7 John. 161;) Jackson v. Garnsey, (16 id. 189;) 1 Story's Eq. Jur. Redf. N. § 371.
    II. The order of the court under which the premises were sold, having directed a sale of the premises (without reserving or excepting any right or interest of Mrs. Maloney) she (being a party to it,) is. concluded by the decree, and is barred from claiming dower in the land, as against the purchaser under that decree. This decree is conclusive upon the parties to it, not only as to the matter actually determined, but as to every matter which the parties might have litigated and have had decided as incident to the subject matter of the litigation, or coming within the purview of the action, whether as matters of claim or defense. (Harris v. Harris, 36 Barb. 88. Hayes v. Reese, 34 id. 151. Gardiner v. Mills, 5 Gill. 94.) Especially should this be so when it appears that the receiver sold the premises without making any reservation of dower, and that the sale was duly confirmed. Mrs. Maloney, being a party to the action, is concluded by the order of confirmation, as well as the original decree.
    HI. The plaintiff, on the day of sale, requested Mr. Horan to attend and bid, averring that she had no right or interest in the property. She- was present and heard the terms of sale read, in which it was stated that the premises would be sold subject to the mortgage to the trustees of Union College, and did not make a claim of any right or interest in" the premises. Under these circumstances, the premises were sold and a full price paid therefor. We think she is estopped from setting up her claim to dower. These questions of estoppel are not in general controlled by technical rules, but are usually ,• determined upon principles of equity and good conscience ; the rule being that when a party procures, or even acquiesces in the disposition of his property by another, under color of title, he shall be bound by such disposition. (Smiley v. Wright, 2 Ohio R. 506. Ellis v. Diddy, 1 Carter, 561. Tilton v. Nelson, 27 Barb. 595. Wood v. Seely, 32 N. Y. Rep. 105.) This estoppel attaches itself to the land, and can be asserted in behalf of the grantee of the immediate purchaser.' (Wood v. Seely, 32 N. Y. Rep. supra, and cases there cited by Denio, J. at p. 116.) The whole conduct of the plaintiff shows not only that she was a party to the effort of her husband to defraud his creditors, but that she now seeks, after inducing Mr. Horan to pay a full price for the land, upon a belief that she had no interest in the property, to commit a fraud upon him by means of this action for dower. It is not until after the deed is delivered, and the full purchase money paid, that she presents her claim. Her claim for dower should be against the surplus money, and not against the land sold to the defendant Horan. .
   Gilbert, J.

The legal effect of a wife’s uniting with her husband in a conveyance of his lands, is to release her dower. Before admeasurement, she has no interest or estate in the lands, and her deed operates not as a grant, but as an- estoppel. (Green v. Putnam, 1 Barb. 500. Moore v. Mayor, &c. 4 Seld. 110.)

When the deed of the husband has been avoided, at the suit of creditors, on the ground that it was made with intent to hinder, delay or defraud them, there remains an estate in the fraudulent grantee, which is sufficient to support or feed this estoppel; for the fraudulent deed is good and effectual as between the parties to it. A payment by the fraudulent grantee or grantor to the creditors, of their debts, would extinguish the same, and render his title valid. The relation of the creditors to the property is analogous to that of eestuis que trust, in a trust resulting under the statute of usés and trusts. (1 R. S. 728, § 52. Garfield v. Hatmaker, 15 N. Y. Rep. 483.) Whatever consequence may ensue from, proceedings by the creditors in invitum for the enforcement of their remedy, upon the estate fraudulently conveyed, is attributable to the statute, which, in conjunction with the decree, acts directly upon such estate, and divests so much thereof only as may be necessary to obtain satisfaction of the claims of creditors; and the wife’s dower in that part of the estate so divested will be as effectually barred as in the part which may remain vested in the fraudulent grantee. There cannot, in the nature of the case, be any severance. And só if the whole estate be taken away; because this results from the enforcement of the remedy, and not because the fraudulent deed conveyed nothing to the grantee. (See Manhattan Co. v. Evertson, 6 Paige, 457; Meyer v. Mohr, 1 Rob. 333; Den v. Johnson, 3 Harris, 87.) The contrary doctrine has been held in some of our sister states, but upon grounds which are not satisfactory to us. (Robinson v. Bates, 3 Metc. 40. Woodworth v. Paige, 5 Ohio R. 70. Miller v. Wilson, 15 id. 108. Pierson v. Williams, 23 Miss. R. 64.)

It appears that the plaintiff took a conveyance of the estate conveyed by her husband from the fraudulent grantee, and that this was done in furtherance of the original intent to defraud. Having participated knowingly and designedly in this fraud, the court will not help her to undo the consequences of her acts, one of which was to accept a merger of her dower, in the fee conveyed to her. As she cannot be endowed of her own lands, the taking of this conveyance destroyed the claim, if any, which existed before. And, as we have seen, the avoidance of such a conveyance, by creditors, still leaves the conveyance effectual as to all the estate conveyed, except that which shall be divested for the purpose of paying them; and if this takes the whole estate, it is not because the deed is absolutely void," but because the statute authorizes it, and it is necessary to enforce the decree.

[Kings General Term,

December 19, 1868.

We think also that the plaintiff’s statement to the defendant at the sale, that she had no claim upon the property, and her request to him to purchase, on the faith of which he. became the purchaser, and her taking a lease from the defendant after the purchase, work a perfect and effectual estoppel in pais against any claim or. title in hostility to that which the defendant acquired at such sale. (Dougrey v. Topping, 4 Paige, 94. Smiley v. Wright, 2 Ohio R. 511. Tilton v. Nelson, 27 Barb. 595. Wood v. Seely, 322 N. Y. Rep. 105.)

We are, therefore, of opinion that the judgment should be affirmed, with costs.

J. F. Barnard and Tappen, JJ. concurred..

Lott, J. concurred, except as to an estoppel in pais.

Judgment affirmed.

Lott, J. F. Barnard, Gilbert and Tappen, Justices.]  