Brown v. Brown

4 Rob. 688

Opinion

By the Court,

Robertson, Ch. J.

It was adjudged in this case that the plaintiff was entitled to dower in certain land at Harlem, in the city of New York, lying between Sixth and Seventh avenues, and running through from 125th to 126th street, (being one hundred and fifty feet wide by about two hundred deep,) and also to one third of the rents of such land (after certain deductions) from a certain day in the year 1855 to the present time, exclusive of any arising from improvements on such premises, made since their alienation. Judgment was rendered that the part of such land which should be set out by a referee, (who was thereby empowered to set the same out for such dower,) should be assigned to the plaintiff for the same, and that the defendant and all claiming under him should deliver possession thereof to her, and that the defendant should pay to the plaintiff, one third part of the rents and profits of such land for six years next preceding the entry of such judgment, to be ascertained by the same referee. Costs and an execution were also awarded to the plaintiff. Upon the report of such referee, duly confirmed, after exceptions heard, judgment has been entered and the roll filed, from which, and such confirmation, an appeal has been taken. The cases of Swartwout v. Curtis, (4 Comst. 416,) and Lawrence v. Farmers' Loan and Trust Co. (15 How. 57,) show such judgment to have been in proper form. It corresponds with forms of decrees formerly made in courts of chancery, (Mills v. Hoag, 7 Paige, 18; Johnson v. Everett, 9 id. 639,) and was not infected with any of the vices of the judgments in Buchanan v. Cheseborough, (5 Duer, 238;) Griffin v. Cranston, (1 Bosw. 281; S. C. 5 id. 658;) O’Brien v. Bowes, (4 id. 657;) and Chamberlain v. Dempsey, (14 Abb. Pr. 241; S. C. 15 id. 1.) In the first of these cases, (Buchanan v. Cheseborough,) a conditional reference was ordered, to ascertain an amount due, after, the general term should pass upon the liability of the defendant, a general pro forma verdict having been taken against him. In the second, (Griffin v. Cranston,) the first judgment (1 Bosw.) left a material issue of the time of cessation of a certain partnership undisposed of, and the second judgment did not purport to determine all the matters in issue. In the third, (O’Brien v. Bowes,) a condition attached to a judgment of dismissal of the complaint, that the plaintiff was not to apply for a trial of the questions of fact by a jury, was held to be repugnant, and rejected as surplusage. In the last, (Chamberlain v. Dempsey,) the amount due on the mortgage sought to be foreclosed was not determined on the' first trial, but on an order of reference made by a different judge, and on a second trial, a judgment, without disposing of the question of costs, was given, and a reference ordered, on which a different judgment was afterwards rendered.

The present action is certainly sustainable as one in a court of equity for the admeasurement of dower, over which such courts always had jurisdiction concurrently with courts of law. (1 Story on Eq. Juris. §§ 624 to 632. Badgley v. Bruce, 4 Paige, 98. Townsend v. Townsend, 2 Sandf. 711.) If it be also an action of ejectment for the recovery of dower, there is no difficulty in the junction of the two. Indeed, courts of equity have always administered other equities in conjunction with such admeasurement, (Swaine v. Perine, 5 John. Ch. 482; Bell v. Mayor, &c. of New York, 10 Paige, 49,) and seem the more appropriate and even exclusive tribunals in some cases of the kind. (Van Dyne v. Thayre, 19 Wend. 162. Cooper v. Whitney, 3 Hill, 95. Balter v. Chase, 6 id. 482. Runyan v. Stewart, 12 Barb. 537.) The facilities for taking an account in a court of equity of the rents and profits, would seem to render an action of an equitable character, or in a court of equity, most proper. But all the boundaries of jurisdiction, and distinctions between causes of action as legal or equitable, being removed, there seems no reason why all the relief to which the plaintiff is entitled should not be given in one action. Indeed, a court of equity when it has gained jurisdiction for one purpose, may retain it for other purposes, although they alone would not have constituted a primary ground of equity jurisdiction. The objection is, therefore, not one of jurisdiction, but of misjoinder of causes of action, and has.been waived by not being taken by answer or demurrer. (Code, §§ 144,148. Bank of Utica v. City of Utica, 4 Paige, 399. Ludlow v. Simond, 2 Caine’s Cas. 1. Truscott v. King, 6 N. Y. Rep. 147.) But although the action may be fairly in this court, and' no objection has been made to an adjudication in it upon all the issues involved, it is said such court cannot use a referee to admeasure the plaintiff’s dower, and assess her damages by loss of rents and profits, instead of the three freeholders formerly required in an action of ejectment for dower, (2 R. S. 312, § 48, subd. 1; Id. p. 310, §§ 36 to 47,) or a special petition, (Id. 489, § 10.) The appointment of three freeholders utider such statute was clearly only a mode of supplying the defects of the machinery of a court of law, after giving judgment, in carrying it out, and to save the necessity of a new action or proceeding. Now, however, the only ordinary proceeding in á court to enforce or protect a right, or prevent a wrong, is, in the most general terms, an “ action.” (Code, § 2.) It can have but one form. (Code, § 69.) Every distinction between actions at law and suits in equity, and their forms, is abolished. (Id.) Every court, therefore, whether exercising legal or equitable jurisdiction in such proceeding, now possesses the former powers of both courts of law and equity to investigate disputed questions, by every mode peculiar • to either, and to make its judgment as to the rights of parties effectual. The Code expressly declares that “ all rights of action given or secured by existing laws, may be prosecuted in the manner provided by” it. (§ 468.) Every court has power, where an answer is put in, to grant relief consistent with the case made by the complaint, and embraced within the issue. (Id. § 275.) The court, in this action, had power, therefore, to admeasure and enforce the plaintiff’s right of dower, if it determined that she had' any under the case made. What part of the land the plaintiff was entitled to as dower, as well as the amount due her for her share of the profits withheld, were specific questions of fact involved in the issue made by the pleadings, and were, therefore, proper subjects of reference, and their determination was necessary to carry the judgment into effect. (Code, § 254.) There surely could be no doubt of the power of the court, in such an action, to admeasure the dower itself, if it had sufficient materials before it, after acquiring jurisdiction over the subject. If so, it could transfer the inquiry to a referee to aid in ascertaining it. The defendant waived every objection, except a want of jurisdiction, and even a right of appeal from the order of reference, by litigating before the referee without such appeal, and by filing exceptions to the report. (Combs v. Wyckoff, 1 Cai. 147. Forrest v. Forrest, 8 Bosw. 653. S. C. 25 N. Y. Rep. 510. Claflin v. Farmers and Citizens’ Bank, Id. 296.) On appeal, also, such an error in the proceeding as admeasuring the dower by one referee instead of three, (as it does not appear that he was not a freeholder,) should be disregarded, as not affecting the substantial rights of the defendant. (Code, § 176.)

The plaintiff, of course, was only entitled to one third of the land, according to its value at the time of its alienation in 1854 to the defendant, under the statute of 1806, (1 R. L. 1813, 60, § 1,) and the Revised Statutes, (1 R. S. 740, § 1; Id. 742, § 17; 2 id. 490, § 13,) and was not to be allowed for any increase in value since, ( Walker v. Schuyler, 10 Wend. ,) or any improvements. (Coates v. Cheever, 1 Cowen, 460.) Ho evidence was given of any change in its value up to the time of the inquiry before the referee, of any improvements put upon the premises, except upon the house. Exclusive of the 'improvements the house could hardly have been worth as much at the time of the trial as at that of the alienation. Omitting the house, the relative value of the lots remaining to those assigned to the plaintiff must, most probably, have c'ontinued the same between those dates. The use of the house at its present valuation, including the cost of improvements made by the defendant therein, was assessed to make up the value of one third of the premises, exclusive of the valuation of the improvements in the house assigned to her for dower. There is no rule of law forbidding absolutely the assignment of such improvements as part of the dower, provided they are not taken, into account in admeasuring the dower, although if an assignment he otherwise practicable they are not to be included. (2 B. S. 490, § 13, subd. 2. Coates v. Cheever, 1 Cowen, 460. Bell v. Mayor, &c. New York, 10 Paige, 49, 72.) Such improvements could not well he separated from the house. The propriety of the exercise of the discretion of the referee in that respect was passed upon at special term and his decision should not he disturbed. (Forrest v. Forrest, ubi supra.) The other provision of the same statute (2 R. S. 490, § 13, subd. 2,) was complied with by deducting from the lands allotted for dower the value of the improvements.

Taxes, before the six years to which the inquiry was limited, being before October, 1857, were properly excluded, as was the rate paid for the use of Croton water by the defendant. Any amount paid for ornamental work or repairs to the additions or improvements was properly excluded. There was no evidence that the defendant insured the plaintiff’s interest in the premises or any thing more than his own; whether either he or she could have recovered, if he had so insured is doubtful, (DeLonguemare v. Tradesmen’s Insurance Company, 2 Hall, 589,) he was not entitled, therefore, to any premiums of insurance paid, unless shown to have been-for the plaintiff’s benefit. Eo errors of fact have been shown to have been committed by the referee.

The judgment and order confirming the report must, therefore, be affirmed, with costs.