
    Hannah Everson, Resp’t, v. Andrew McMullen, App’lt.
    
    
      (Court of Appeals,
    
    
      Filed April 16, 1889.)
    
    1. Dower—Mortgage—When postponed to equity op redemption.
    E., the husband of the plaintiff during his life executed a mortgage upon certain premises, the plaintiff joining with him to cover her inchoate right of dower. After E.’s death, his executor sold the equity of redemption to one, P., who thereafter gave a new mortgage to the original mortgagee to secure an accumulation of interest. Subsequently P. and his wife conveyed to one, C., who assumed the mortgage made by P., and who thereafter conveyed a portion of the property to the defendant by warranty deed. P. did not on his purchase assume or become liable to pay any part of the original mortgage, but took title subject to the original heir. When he gave his mortgage it was in aid of his own title and not in pursuance of any duty to the representatives of the mortgagor. By virtue of certain arrangements between the parties at the time of the defendant’s purchase, the original mortgagee released the defendant’s parcel from the lien of the mortgage. The i laintifif now demands dower in the defendant’s parcel. Meld, that the plaintiff by joining in the mortgage, postponed her dower to the equity of redemption.
    S. Same—When dower subject to contribution.
    Where the purchaser of an equity of redemption is not bound to pay the mortgage debt, but does in fact pay it in aid of his own title and. estate whereby it is discharged, the claim of dower is subject to a just contribution; and although the debt to which the dower is subordinated is changed in form, it in fact remains, and the discharged security may be revived when equity so requires.
    
      3. Same—Payment by purchaser to mortgagee op husband’s debts—
    Eeeect op.
    It was insisted by the plaintiff that a release of dower is available only to one who claims under the very title which was created' by the conveyance with which the release is joined. Held, that the payment by the purchaser to the mortgagee of the debt of the plaintiff’s husband, in an equitable sense, is a purchase of that interest from him, and in equity the owner of the fee holds it under the mortgagee as to that interest, and under the husband only as to the equity of redemption.
    4. Same—When purchaser op equity op redemption subrogated to
    RIGHTS OP MORTGAGEE.
    The purchaser took his land charged as surety for the husband’s debt, and while personally he was not bound to pay it, his land was held, and paying the debt of husband and wife, as represented by the mortgage, he had a right as against them to be subrogated to the position of the mortgagee, and to stand in equity as the purcnaser and holder of this security.
    Appeal from judgment of supreme court, general term, third department, affirming an interlocutory judgment, as modified, entered on the report of a referee. ’
    
      Howard Chipp, Jr., for app’lt; G. D. B. Hasbrouck, for resp’t.
    
      
       Reversing 6 N. Y. State Rep., 356.
    
   Finch, J.

—We are required to settle on this appeal the disagreement between the trial court at the first hearing and the general term, and determine which decision was correct.

The property in question was owned originally by Morgan Everson, who mortgaged it to the Rondout Savings Bank for $12,000, his wife, who is the present plaintiff, joining with him in the mortgage to cover her inchoate right of dower. Everson died soon thereafter, and his executor sold the equity of redemption at public auction for one dollar. The case does not disclose the authority upon which.he acted, but nobody disputes it, and the action was tried upon the assumption that a valid title existed in the purchaser.

That purchaser was Coykendall, who assigned his bid to Preston, to whom the executor’s deed was made. Preston took title before August, 1877, and thereupon gave a new mortgage to the Savings Bank upon the property for $2,000 to further secure an accumulation of interest upon the original mortgage. It appears that Preston gave a bond accompanying the mortgage, and so became personally liable for a possible deficiency, and the bank gained that additional security for its unpaid interest; but while it is said generally that the mortgage was given to pay the interest, it is not shown that the mortgagee accepted the new securities as a payment pro tanto upon the original incumbrance, by any indorsement or equivalent action, or held them in any other way than as collateral to the original debt. In August, 1877, Preston and his wife conveyed to Crosby by a quit-claim deed, but containing a provision by which Crosby assumed and agreed to pay the $2,000 mortgage given by Preston to the bank, as a part of the' consideration for the purchase. The consideration named in the deed was $221. Preston did not on his purchase assume or become liable to pay any part of the original mortgage, but took title merely subject to its lien. When he gave his $2,000 bond and mortgage, it was in aid of his own title, and not in pursuance of any duty to the representatives of the mortgagor.

Probably his obligation was merely collateral to the primary lien," and so both he and his land became sureties for the unpaid interest; but if not, and the new mortgage was a payment of so much of the old debt, it was entirely voluntary, and he and Crosby who took his place stood in the attitude of sureties after paying the unpaid interest entitling them to subrogation as against the land. Crosby thereafter conveyed a portion of the property to McMullen by a warranty deed, free and clear of all incumbrance. He was enabled to do this by an arrangement at the time, to which his grantee and the bank were parties. The substantial point of that arrangement was a distribution of the original mortgage in agreed proportions between the two parcels into which by McMullen’s purchase the land was to be divided. To effect this separation and severance of the lien McMullen gave the bank a mortgage on his parcel for 85,500 as a substitute for $4,000 of the principal of the original mortgage, and $1,500 of the unpaid interest collaterally secured by the bond and mortgage of Preston, $500 of the interest having been paid in cash by Crosby. The bank on its part formally released McMullen’s parcel from the lien of its original mortgage endorsing thereon a payment of $4,000, and cancelled and discharged the $2,000 mortgage of Preston, and Crosby was thus enabled to make his conveyance free from incumbrance,

On this state of facts the widow demanded dower in McMullen’s parcel. The special term on the first trial held that she was bound to allow as against her dower a just pi’oportion of the original mortgage and its interest, and sent the case to a referee to ascertain that just proportion with a direction that the McMullen mortgage should be recognized and allowed in ascertaining the amount of such indebtedness. The general term, on the contrary, were of opinion that the widow was not bound to contribute and should have dower in the whole parcel without allowance or diminution; and it is that controversy which awaits our judgment.

It is not doubtful on which side the equity exists. The widow subordinated her dower to the payment of the husband’s debt. Whoever, in the room of a foreclosure by the mortgagee, pays that debt to him when under no personal liability for its discharge, is entitled in equity to the protection of the mortgagee’s right as against the dower which it covered and charged. The purchaser from the husband acquired only the equity of redemption.

While technically he took the fee in truth, he took it subject to the interest of the mortgagee carved out of it by the mortgage as a lien. Payment to the mortgagee in an equitable sense is a purchase of that interest from him, and in equity the owner of the fee holds it under the mortgagee as to that interest, and under the husband only as to the equity of redemption. That is an answer to the doctrine invoked by the respondent that a release of dower is available only to one who claims under the very title which was created by the conveyance with which the release is joined. Malloney v. Horan, 49 N. Y., 118.

That would be a good answer to the appellant’s claim in a court of law, possibly, but does not govern his case in equity, since there the truth of his holding outside of the legal form is under the mortgage to the extent of the mortgage debt. For his payment of that debt is not a duty which he owes to the husband’s estate or to any one, but a transaction in his own interest, the exact and obvious purpose of which is to add the right of the mortgagee to the right bought of the husband. The widow is left where her own voluntary act placed her. • By joining in the mortgage she postponed her dower to the equity of redemption. She has that right still, and seeks to enlarge it because of a payment made not by her husband, or in performance of a duty due to him or those representing him, but by one acting wholly in his own interest and seeking to add to that as acquired from the husband the further right held by the mortgagee. The purchaser in the present case took his land charged as surety for the husband’s debt. While he personally was not bound to pay it, his land was held, and paying the debt of husband and wife as represented by the mortgage, he had a right as against them to be subrogated to .the position of the mortgagee and to stand in equity as the purchaser and holder of his security.

Thus far I have assumed that the giving of the new mortgage operated as a payment pro tanto of that held by the bank. That is a needless concession, because the finding in this case rebuts any intention of payment, and establishes that a severance of the original lien was all that was contemplated by the parties, and the giving of the new mortgage was meant in its practical effect to serve as a transfer of so much of the original lien to the severed parcel. Equity may look through the form of the transaction to ascertain its substance, and so looking cannot fail to see that the new mortgage is so much of the old one in a changed form, but secures the old debt as did its predecessors. The finding is justified by the facts, and upon that basis the dower remains subject to the proportionate part of the original lien.

I think these views are fully sustained by the authorities.

In Swaine v. Perine (5 John. Ch., 491), the mortgage given by the husband and wife was outstanding at his death, the equity of redemption passed to the heir who redeemed the land by paying the mortgage, and the widow who claimed dower was required to contribute her ratable proportion of the redemption money.

In Popkin v. Bumstead (8 Mass., 491), the husband and wife joined in a mortgage to one Capen, and after the death of the husband, his administrator, under the order Oof the probate court, sold the equity of redemption to Wheelock, who conveyed it to Bumstead. The latter paid off the mortgage and it was discharged of record. The widow thereupon demanded her dower, but the court held she was barred. This case, which is very like the one at bar, was cited in Van Dyne v. Sayre (19 Wend., 171), with apparent approval.

Judge Cowen reviews many of the cases and holds that Collins v. Torry (7 Johns., 278) and Coates v. Cheever (1 Cow., 475) were decided without full consideration. Near the close of his opinion he says: “ My deduction from this and other cases I state in the words of Chancellor Kent (4 Comm., 45, 3d ed.); the wife’s dower in the equity of redemption only applies in case of redemption of the incumbrance, by the husband or his representatives, and not when the equity of redemption is released to the mortgagee or conveyed.” I am not aware that the authority of that case has been overthrown.

The cases cited in behalf of the widow confirm, rather than question, the views we have expressed.

In Bartlett v. Musliner (28 Hun, 235) the purchaser had assumed and agreed to pay the mortgage debt as a condition of his purchase, and having come under that obligation, might be deemed to have paid in behalf of the husband or his estate. The distinction is referred to in Jones on Mortgages (vol. 1, § 866), where it is said that if the mortgage “be redeemed by the heir or purchaser, or by anyone interested in the estate who is not bound to pay the debt, to avail herself of this right she must contribute her proportion of the charge according to the value of her interest.”

In Runyan v. Stewart (12 Barb., 537), the action was at law and while a majority of the court sustained the claim of dower,_ it was explicitly said that the result would be different in equity. In that case Runyan and his wife gave a mortgage, and thereafter the husband gave.a conveyance to Baker who assumed the payment of the mortgage. The court question the case of Popkin v. Bumstead (supra) but add that in equity Baker might be subrogated and have a decree for contribution. No reference was made to the assumption of the mortgage by Baker. In Jackson v. Dewitt (6 Cow., 316), there was a release to the mortgagee and dower was denied. In Wedge v. Moore (6 Cush., 8), the whole argument is founded upon an assumption of the mortgage debt by the purchaser which is argued out from the facts. In Platt v. Brick (35 Hun, 127), the action was by the purchaser of the equity of redemption, who was not bound to pay the mortgage debt, to compel the mortgagee to assign his mortgage for the protection of the purchaser’s title against dower, its amount having been tendered. The court held that the assignment could be compelled, that there was a right of subrogation, that the assignment would not work a merger, and the mortgage could be interposed against the claim of dower. Uf course the technical or formal assignment is material only as showing a transfer rather than a payment, and where no payment was intended or made, but the mortgage debt subsisted in the new mortgage given, the result must be the same.

On the whole I am satisfied that where the purchaser of the equity of redemption is not bound to pay the mortgage debt, but does in fact pay it in aid of his own title and estate, whereby it is discharged, the claim of dower is subject to a just contribution. And the case is stronger where, as here, the technical payment consists in the substitution of a new mortgage intended to operate as and take the place of so much of the old one. The debt to which the dower was subordinated is changed in form but in fact remains; and the discharged security may be revived when equity so requires. Gans v. Thieme, 93 N. Y., 225.

The judgment of the general term and of the special term should be reversed and a new trial granted, costs to abide event.

All concur.  