Snyder v. Ash

Appellate Division of the Supreme Court of New York

Snyder v. Ash

51 N.Y.S. 772

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 4, 1898

StatusPublished

This text of 51 N.Y.S. 772 (Snyder v. Ash) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Snyder v. Ash, 51 N.Y.S. 772 (N.Y. Ct. App. 1898).

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LANDON, J.

The mortgage in terms covers the entire premises, without reservation or exception, and therefore covers the wife’s estate in the undivided two-thirds thereof. 1 Rev. St. p. 748, § 1. Cases like Power v. Lester, 23 N. Y. 535, and Gillig v. Maass, 28 N. Y. 191, are to the effect that, in respect of the husband’s lands, the joinder of the wife with him in the mortgage thereof only operates to release her' contingent right of dower. Such was the effect here in respect of the husband’s portion of the mortgaged lands. But the mortgage also covers the wife’s portion of the premises. This portion the husband could not incumber, but she could, and did. The mortgage has the effect which its terms express. There is no ambiguity in it.

The parol evidence offered as to what the mortgagee said as to the effect of her execution of it contradicts its terms, and was therefore properly excluded. Hutchins v. Hutchins, 98 N. Y. 56. Even if admitted, it would fall short of proving that she was misled thereby. If regarded as a misrepresentation as to its legal effect, then it was a mistake in law; and in order to relieve the wife from its consequences, and thrust them upon the mortgagee, the mortgagee must be shown guilty of some lack of good faith inducing [774]*774the mistake. Haviland v. Willets, 141 N. Y. 50, 35 N. E. 958; Berry v. Insurance Co., 132 N. Y. 49, 30 N. E. 254. There was no offer to show this.

The judgment must be affirmed, with costs. All concur except HERKÍCK, J., dissenting.

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LANDON, J.

The mortgage in terms covers the entire premises, without reservation or exception, and therefore covers the wife’s estate in the undivided two-thirds thereof. 1 Rev. St. p. 748, § 1. Cases like Power v. Lester, 23 N. Y. 535, and Gillig v. Maass, 28 N. Y. 191, are to the effect that, in respect of the husband’s lands, the joinder of the wife with him in the mortgage thereof only operates to release her' contingent right of dower. Such was the effect here in respect of the husband’s portion of the mortgaged lands. But the mortgage also covers the wife’s portion of the premises. This portion the husband could not incumber, but she could, and did. The mortgage has the effect which its terms express. There is no ambiguity in it.

The parol evidence offered as to what the mortgagee said as to the effect of her execution of it contradicts its terms, and was therefore properly excluded. Hutchins v. Hutchins, 98 N. Y. 56. Even if admitted, it would fall short of proving that she was misled thereby. If regarded as a misrepresentation as to its legal effect, then it was a mistake in law; and in order to relieve the wife from its consequences, and thrust them upon the mortgagee, the mortgagee must be shown guilty of some lack of good faith inducing [774]*774the mistake. Haviland v. Willets, 141 N. Y. 50, 35 N. E. 958; Berry v. Insurance Co., 132 N. Y. 49, 30 N. E. 254. There was no offer to show this.

The judgment must be affirmed, with costs. All concur except HERKÍCK, J., dissenting.

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51 N.Y.S. 772, Counsel Stack Legal Research, https://law.counselstack.com/opinion/snyder-v-ash-nyappdiv-1898.

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