
    WESTFALL v. HINTZE.
    
      N. Y. Supreme Court, Second Department;
    
    
      Special Term, 1878.
    False Representation by Mortgagor.—Equity of Wife.—Subrogation.
    PlaintiSs, deceived by a mortgagor’s false representation that he was unmarried, lent him money on mortgage, and with it paid off and satisfied a prior mortgage, and taxes, &c. Held, that the wife being innocent, her inchoate right of dower was superior to the equity of the plaintiff.
    
    Trial by the court.
    This action was brought by Diedrich Westfall and another against Henry C. Hintze, Mary Hintze and others, to foreclose a mortgage on real property.
    The defendant, Henry C. Hintze, in 1867, had become seized of the premises described in the complaint, subject to a mortgage of $4,000, which he assumed to pay. He was then unmarried. In 1872, he married the defendant, Mary Hintze ; and in 1876, said Henry 0. Hintze applied to the plaintiffs for a loan, on mortgage, of $5,000 upon said premises, to settle said existing mortgage of $4,000, then under foreclosure, and pay off accumulated taxes and assessments on the property, he representing himself to plaintiffs as an unmarried man. The fact was that, at this time, his wife was not living with him, but with her parents, having left him on account of harsh treatment, and she was entirely unaware of the doings and dealings by and between her husband, Henry C. Hintze, and plaintiffs, in 1876.
    Believing Hintze to be unmarried, plaintiffs made the loan, they, instead of paying the $5,000 over to Hintze, using the whole sum to settle the foreclosure suit and pay the costs thereof, and the taxes and assessments on the property; taking, simultaneously therewith, a new bond and mortgage for $5,000, from Hintze, executed by him alone, and a satisfaction-piece from the holder of such previous mortgage of $4,000, which satisfaction-piece and new mortgage plaintiffs thereupon had duly recorded.
    The plaintiffs now sue to foreclose said mortgage of $5,000, they in their complaint settingup the misrepresentation of the said Henry C. Hintze, and asking that their said mortgage be declared a lien superior to the right of inchoate dower of the defendant, Mary Hintze. The answer of said Mary Hintze claimed that her inchoate dower is prior and paramount to plaintiff’s mortgage, and judgment is demanded accordingly.
    
      Barnum & Rebhann, for the plaintiffs, contended:
    I. That, under Dillon v. Byrne (5 Cal. 455), the husband’s seizin being, at the time plaintiffs made the loan, itself subject to the lien of the old mortgage, he, as mortgagor, should, on the payment of the money by plaintiffs directly to the former mortgagee,- be considered a mere conduit to pass such former mortgagee’s rights to the plaintiffs—the same as a wife’s dower is subject to a mortgage for part of the purchase-money, though given after the receipt of the deed of the premises (Warner v. Van Alstyne, 3 Paige, 513).
    II. The mortgage and tax liens, ahead of the dower, were removed by plaintiffs by reason of the husband’s false representations, and therefore plaintiffs’ lien should be declared superior to the inchoate dower.
    
      Nehrbas & Pitshlce, for defendant, Mary Hintze, opposed:
    I. While Mary Hintze was perfectly innocent in the matter, plaintiffs were negligent at the time of loaning their money. As that was at their option, they should rather have taken an assignment of the earlier mortgage ; it was no fault of Mary Hintze that they did not, and non constat that they could have got an assignment from the holder thereof, as this would include an unpleasant, continuing liability on his part upon his implied warranty of title (Ledwich v. McKim, 53 N. Y. 312). Merely paying off and settling certain charges on another’s land does not confer a claim therefor upon such other’s interest in said land (Wilkes v. Harper, 1 N. Y. 586, 590).
    II. Plaintiffs, being strangers, were unable, as we all know, to force the former mortgagee to give to them an assignment of his mortgage, on delivering him the money; what he would be obliged to give them was simply a satisfaction-piece, and our position, therefore, is like the case of second lien on the property becoming the first by the satisfaction of the preceding lien by a person not then entitled to an assignment from the recipient of the moneys. The dower right of Mary Hintze is a legal incumbrance (Willard Real Est. 61), and was on this property continuously since her marriage (Mills v. Van Voorhis, 20 N. Y. 412).
    III. Plaintiffs cannot be subrogated to the place of the previous mortgage, as they did not possess, before disbursing their moneys, any subsisting rights in the premises, as a support for their payments, and to which the subrogated interests might be tacked ; for it is only “ when the one, advancing money to settle the indebtedness of another, stands in the position of surety, or makes the payment improve or protect his own rights in the land (i. e., either as owner or then lienor), that equity will substitute him in the place of the creditor who received the money; a stranger to the land paying the money must, to keep the security on foot, make a special agreement therefor with the holder of such security,” which contract cannot now be invented by the court, as against another legal lienor (Richmond v. Marston, 15 Ind. 134), where subrogation unto thé rights of the execution creditor receiving the moneys bidden, was denied to purchaser at a sheriff’s sale,void for some latent defect (Shinn v. Budd, 14 N. J. Eq. 234; Sanford v. Mc Lean, 3 Paige, 117; Oliver v. Bragg, 15 La. Ann. 402). Plaintiffs must be deemed to have paid over the money, for and on account of Mr. Hintze, the primary debtor on the canceled mortgage (Virginia v. Chesapeake, &c. Canal Co., 32 Md. 546, 547), and in that aspect, nothing could prevent the extinguishment of such incumbrance, as against those next entitled to a portion of mortgagor’s estate (32 Md. supra). What plaintiffs did was, as strangers, to settle Mr. Hintze’s debt for him ; that he invited them in a fraudulent way to do so would simply allow them (if they are discontented) to reclaim the money from Mr. Hintze by action, but it would not give them the former mortgage, for that would be affirming the transaction (See Church v. Molloy, 70 N. Y. 63).
    IV. Mary Hintze had no intimation of the plaintiffs’ doings, and Cook v. Banker (50 N. Y. 655) is a clear authority against plaintiffs upon the facts herein—-to wit: That the expenditure of money by them as mortgagees on the premises in suit (such as redeeming from paramount tax sales, paramount foreclosures, and the like), without at least the implied sanction of the one who had a prior interest in the land (viz., Mary Hintze, as holder of an inchoate dower) does not give the plaintiffs any right that will override that of others’ (z. e., Mary Hintze’s) priority of lien. Mary Hintze’s lien on the property must, therefore, be declared superior to the lien of plaintiffs thereon.
    
      
       Compare Snelling v. McIntyre, 6 Abb. New Cas. 469, See also, Gage v. Ward, 25 Me 101.
    
   Pratt, J.

The lien of the mortgage in suit is not to be held superior to the inchoate right of dower of the defendant Mary Hintze. Said Mary Hintze, the wife, had no knowledge of the bond and mortgage in suit, nor of the circumstances under which they were given, nor did she execute either; and she never released her right of dower in the premises.

This is a hard case for the plaintiffs ; but I know of no principle that will deprive the wife of dower, under a state of facts like the present. There must be judgment for the said defendant, Mary Hintze, and the complaint is dismissed as to her, but without costs. Plaintiffs are only entitled to the usual decree of foreclosure as against all the defendants except Mary Hintze, with costs to be taxed, and judgment of deficiency (if any there be) against Henry C. Hintze.

Judgment was thereupon rendered, declaring the lien of plaintiffs’ mortgage on the premises to be subject to the inchoate right of dower of Mary Hintze, and dismissing the complaint as to her on the merits, the foreclosure to proceed as against the other defendants only.  