
    Sarah C. Sheldon, App’lt, v. Abraham Hoffnagle et al., Resp’ts.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed February 7, 1889.)
    
    1 Dower—Mortgage—When wife not entitled to dower in.
    The lands from which -plaintiff claims dower were purchased by her’ husband during coverture, and upon such purchase be executed a mortgage thereon to secure the full purchase price. Held, that as against the mortgagees or those claiming under them, although plaintiff did not unite, in the mortgage, she is not entitled to dower.
    2 Same—Subrogation.
    Hoffnagle had a junior mortgage upon the premises covered by the original purchase money mortgage. Upon the foreclosure of such junior mortgage he paid up the purchase money mortgage and caused it to be satisfied and discharged. Held, that he became equitably subrogated to-the rights of the mortgagees in the purchase money mortgage, and as against the plaintiff’s claim for dower he and those claiming under him. have the same rights as the mortgagees in possession would have.
    8 Same—Mortgage—Who entitled to redeem.
    
      Held, that the plaintiff never having been made a party to any action to foreclose her right of dower may redeem as against the purchase money mortgage.
    Appeal by the plaintiff from a judgment entered in favor of the defendants, after a trial by the court.
    
      B. Pond, for app’lt; Bichard L. Hand, for resp’ts.
   Ingalls, J.

The decision by the court at special term was quite as favorable to the plaintiff, as the facts and law would warrant, and the judgment entered in the action should be affirmed, with costs. The reasons assigned by the learned justice who tried the action, as they appear in his opinion, are so far satisfactory, as to render it unnecessary to further discuss the questions involved. Neither the facts, or the law, establish in favor of the plaintiff, any right or equity, superior to that which the judgment herein secures to her

The following is the special term opinion referred to:

Tappan, J.

This is an action to recover dower; the trial was had before the court without a jury; the facts upon which .the rights of the parties depend, are stated in the-findings of fact, upon which judgment is ordered, and are restated in this opinion.

The lands from which plaintiff claims dower, were purchased by Oscar F. Sheldon, her husband, during coverture, and he executed a mortgage to his grantors for and to-secure the full purchase-price.

As against the mortgagees in such mortgage, or those claiming under them, although she did not unite in such mortgage, plaintiff is not entitled to dower. 3 R. S. (7th ed.), 2197, § 5; Brackett v. Baum, 50 N. Y., 8. Edmund Hoffnagle did not purchase the property described in the complaint of Oscar F. Sheldon, and promise to pay this purchase-money mortgage as part of the consideration of his purchase; he had debts against said Sheldon secured by a junior mortgage upon the said premises covered by .such original purchase-money mortgage; he paid upon .such last mortgage, in the first instance, by virtue of a privilege given by his mortgage to preserve his security, and after he had bid in the premises upon the foreclosure •of his own mortgage, he phid up the purchase-money mort ■ gage, as allowed by the decree in the action brought to foreclose his mortgage, to protect his own title, and caused ;such purchase- money mortgage to be satisfied and discharged. Having paid under such circumstances, he became equitably subrogated to the rights of the mortga gees in the purchase-money mortgage, notwithstanding that mortgage was satisfied and discharged ; and he and the defendants who derive title from him, claim under such mortgagees, and as against the plaintiff’s claim for dower in the premises, they have the same rights as such mortgagees in possession would have. As to right of subrogation, .see Thomas on Mortgages (2d ed., §§ 451, 452, 453); Hyde v. Tanner (1 Barb. S. C. R., 76); Runyan v. Stewart (12 id., 537); Barnes v. Mott (64 N. Y., 397, 401); Popkin v. Bumstead (8 Mass., 491, 493); Barnes v. Camack (l Barb. S. C. R., 392), and cases there cited. Delisle v. Herbs, 25 Hun, 485. Some of these cases show that it is not decisive ■of the equitable right of subrogation that the mortgage was discharged instead of assigned to Edmund Hoffnagle; that because the proper equitable protection of his rights mid interests require the mortgage to be kept alive, all rights under it will survive, and be enforced in an equitable action like this.

Plaintiff was never made a party to any action or proceeding to foreclose her right of dower in the premises. She is entitled in equity to redeem as against the said pur ■chase-money mortgage. Denton v. Nanny, 8 Barb. S. C., 618, 623; Mills v. Van Voorhies, 20 N. Y., 412; Bell v. Mayor, 10 Paige, 49; Brackett v. Baum, 50 id., 8, 11, 12; Gibson v. Crehore, 5 Pick. (Mass.), 146; S. C., 3 id., 475.

This action was brought to recover dower in the premises, on the assumption that such purchase-mane^ mortgage had been discharged, and had no existence as against the plaintiff’s right of dower; plaintiff shows no right to recover in ' this action.

Defendants should have judgment upon the merits, without prejudice to plaintiff’s right to maintain an action to redeem the premises from such mortgage, and upon such redemption to recover dower.

Judgment is ordered accordingly.  