Kiefer v. Winkens

3 Daly 191, 39 How. Pr. 176

• Court: New York Court of Common Pleas
• Decided: April 15, 1870
• Status: Published

Opinion

By the Court

Van Bunt, J.

This action was commencedfor the foreclosure of a mortgage upon certain premises of which the defendant, Daniel Winkens, was the owner. Subsequently, but before any decree was entered in this action, the said Daniel Winkens conveyed all his right, title and interest therein to John Sedgwick, assignee in bankruptcy, and he was duly made a party-defendant. Such proceedings were had in the action, that a decree of foreclosure and sale was entered, from which the defendants, Winkens and wife, appealed to the General Term of this Court, and this motion is now made to dismiss that appeal upon the ground that they had no interest to be protected by an appeal.

The only questions necessary to be considered on this application are: 1st, whether a party to a decree of foreclosure and sale, who has parted with his interest subsequent to the commencement of proceedings, but prior to the entry of such decree, can appeal therefrom; and 2nd, whether a wife, who has only an inchoate right of dower, which is .attempted to be foreclosed, can appeal ?

Section 325 of the code is very general in its terms. It declares, that “ any party aggrieved may appeal in the cases prescribed in this title.” It has long been well settled, however, that a person having no interest in the subject-matter in dispute, cannot be a party-litigant. In the case now before us, therefore, Daniel Winkens, having parted with all his interest in the subject-matter of the decree by a conveyance to an assignee in bankruptcy, before the entry of the decree of foreclosure, was for the purposes of this appeal, a mere stranger, uninterested in the event of the action. His interest having ceased, he was not affected or “ aggrieved ” by such decree. All power of appeal as to him ceased with such interest. (Reid v. Vanderheyden, 5 Cow. 719.)

We now come to the consideration of the second question, whether Mrs. Winkens has a right to prosecute an appeal because of her inchoate right to dower in the premises in question. We are clearly of the opinion that she has such a right. She was a necessary party to the action. Unless she was made such a party, her inchoate right of dower would have attached to the premises, even in the hands of a purchaser under the decree in this action. In case a surplus should arise upon the sale of these premises, after payment of the amounts required to be paid by the decree herein, she could cause one-third part thereof to be paid into Court, to await the event of her husband’s life; and in case she should survive her husband, she would be entitled, as long as she should live, to receive the income upon this one-third of the surplus. How, then, can it be said that she has no interest in the event of this action ?

Mrs. Winkens is, therefore, as we have seen, a necessary party to the decree, and the language of the code is, “ Any party aggrieved may appeal.” How, if the appellants shall succeed, as in this application we may assume that they will, in showing, upon the hearing of the appeal, that the Referee erred in giving the judgment which he did, by which her inchoate right of dower is barred from ever attaching to the estate of her husband, or that the Referee has reported as due upon the mortgage more then he should have done, by which the surplus arising upon the sale is diminished, the wife is certainly “ aggrieved” by such judgment, and is entitled to have it reviewed by a higher tribunal.

Though, as we have seen, Daniel Winkens cannot appeal in his own right, yet as the subject-matter affected by the decree from which the appeal is taken, is not the separate property of the wife, and as she cannot, by herself, appeal, her husband has properly joined in the appeal taken on her behalf. The motion to dismiss the appeal must be denied.

Ordered accordingly.