Westfall v. Hintze

7 Abb. N. Cas. 236

• Court: New York Supreme Court
• Decided: July 1, 1878
• Status: Published

Opinion

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.