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The first, second and third grounds of demurrer may be considered together. The objection is that Adam J. Shoemaker, the grantee of Spickerman's executors, the executors themselves, and the executor John C. Barranger, who conveyed to the plaintiff, are not made parties to the action. It is difficult to see what possible interest these executors have in the present litigation. They acted as trustees in the execution of a trust under the wills of their respective testators, and nothing more. They have no interest in the lands, none in the mortgage,
and cannot be affected by any judgment or decree entered in the action. In regard to Shoemaker, he is in the same situation, with this exception, that he conveyed to Shufeldt with covenant of warranty, and should the defendant, Catherine, succeed in recovering her dower, might be liable upon his covenant. This is a question in which the defendants have no manner of interest, and they have no right to insist upon his presence as a party to the action. A complete decree can be made without him. The fourth ground of demurrer is the uniting of two incongruous causes of action in the same complaint. This is a mistake. There is but one cause of action relating exclusively to the interest which the defendant Catherine Seely claims to have in the lands of the plaintiff. The complaint seeks alternative relief; that her claim as tenant in dower may be adjudged extinguished, or if the evidence does not warrant that measure of relief, she may be adjudged to contribute to the payment of the Spickerman mortgage in proportion to her interest in the lands. Next, it is said that the subject of the action has been adjudicated in the surrogate's court, which is thought to be a bar to the plaintiff's action. The surrogate's decree extends no farther than the extent and location of the lands assigned in the report. The title is not affected and still remains open to dispute. (2 R.S., 403, § 17.) The sixth ground of demurrer is the insufficiency of the facts to constitute a cause of action, and involves the plaintiff's right to the relief demanded in the complaint.
Assuming for the moment that the defendant, Catherine Seely, is entitled to dower, of what is she entitled to be endowed? She united with her husband in the mortgage to Andrew Spickerman, to secure the payment of $2,700, which was a lien upon the land at the time of her husband's death. She was entitled to dower in the equity of redemption, if that term may still be used. The money due upon the mortgage was first to be paid, and she was entitled to the use of one-third of whatever remained during life. Shoemaker paid the money due upon the mortgage as a part of the purchase-money, and as against the widow it was in his hands, and is now in the hands of those claiming under him,
an equitable lien upon the premises. Had Shoemaker taken an assignment of it, in place of satisfying it, and had it been transferred to the subsequent owners to protect the title, she could have redeemed upon payment of a ratable portion of the money due, and until she did so redeem, she could not have entered. And so Shoemaker having paid the mortgage, and those who have acquired his rights may require her to contribute to its payment as a condition of her entry upon the lands mortgaged. These are familiar principles, and would seem to establish the plaintiff's right to this measure of relief.
In regard to the alternative relief, I think his right equally indisputable. It is to be observed that James Spickerman, by his will, gave the widow the use of one-third of his real estate during life, and the use of all his real estate in case his executors did not sell the same. And should the executors sell the real property, he then gave her the use of one-third of the proceeds during life, and the use of the whole until his children attained the age of eighteen years. The complaint states, — and its statements are to be taken as true, — that she was present and aided at the negotiations for the sale to Shoemaker, and at the time of the giving of the deed. That he was told that the land was to be free from her claim of dower, and of all incumbrances except the patroon's ground rent and the mortgage, and that a recital to this effect was inserted in the deed, with which she was made acquainted. But this is not all. The complaint also says that she had and enjoyed the use of the whole of the purchase-money for the lands, from the time of the sale to the time of the commencement of the action. These acts of her's have the effect to create an estoppel in pais. After inducing Shoemaker, by such representations, to make the purchase and part with his money, and after taking to herself the use of the proceeds of the sale, she will not be allowed to assert her claim to dower in the lands sold. All this seems plain enough as a defense to an action by her to recover the possession. But whether the plaintiff has a right to institute an affirmative proceeding himself, and have the dower declared to be extinguished, and she enjoined from prosecuting the action to recover the possession,
is a much graver question, upon which there may be some difference of opinion.
The subject was considered in Scott v. Onderdonk
(14 N.Y., 9), and in the opinion, Judge DENIO says: "Ordinarily a party must wait until his rights have been actually interfered with, before he can implead another from whom he anticipates injury. But there are several exceptions to the rule, and when the jurisdiction in law and equity was administered in different courts by different forms of proceeding, it was a common case for a party to appeal to a court of equity, for relief against apprehended injury to be effected by his adversary by some actin pais, or by some legal proceeding which he could not defend himself against, upon the principles of the common law." After saying that this class of cases has been narrowed by blending the two jurisdictions, he says, "there is still a principle of equity which remains in force notwithstanding the confusion of remedies by which a person may, in certain cases, institute a suit to remove a claim which is a cloud upon the title to his property." If the claim is based upon a written instrument, void upon its face, or if it requires the existence of a series of facts, or the performance of a succession of legal acts, and there is a defect as to one or more of the links, there is no reason for entertaining the litigation, and the party must wait until the pretended title is asserted." Where, also, the plaintiff claims to have a defense valid in law, and which rests upon evidence which may be lost by the lapse of time or the imperfections of memory, then I understand, also, the courts will entertain the litigation without waiting for the assertion of the claim. InThe N.Y. New Haven R.R. Co. v. Schuyler (17 N.Y., 592), the subject came up again for consideration, and Judge COMSTOCK, in the opinion, says: "The jurisdiction does not universally attach, on the mere ground that the deed or other contract is invalid. If the invalidity plainly appears on the face of the writing, so that no lapse of time or change of circumstances can weaken the means of defense, it is held that no occasion arises for a suit in equity to decree its cancellation.
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The first, second and third grounds of demurrer may be considered together. The objection is that Adam J. Shoemaker, the grantee of Spickerman's executors, the executors themselves, and the executor John C. Barranger, who conveyed to the plaintiff, are not made parties to the action. It is difficult to see what possible interest these executors have in the present litigation. They acted as trustees in the execution of a trust under the wills of their respective testators, and nothing more. They have no interest in the lands, none in the mortgage,
and cannot be affected by any judgment or decree entered in the action. In regard to Shoemaker, he is in the same situation, with this exception, that he conveyed to Shufeldt with covenant of warranty, and should the defendant, Catherine, succeed in recovering her dower, might be liable upon his covenant. This is a question in which the defendants have no manner of interest, and they have no right to insist upon his presence as a party to the action. A complete decree can be made without him. The fourth ground of demurrer is the uniting of two incongruous causes of action in the same complaint. This is a mistake. There is but one cause of action relating exclusively to the interest which the defendant Catherine Seely claims to have in the lands of the plaintiff. The complaint seeks alternative relief; that her claim as tenant in dower may be adjudged extinguished, or if the evidence does not warrant that measure of relief, she may be adjudged to contribute to the payment of the Spickerman mortgage in proportion to her interest in the lands. Next, it is said that the subject of the action has been adjudicated in the surrogate's court, which is thought to be a bar to the plaintiff's action. The surrogate's decree extends no farther than the extent and location of the lands assigned in the report. The title is not affected and still remains open to dispute. (2 R.S., 403, § 17.) The sixth ground of demurrer is the insufficiency of the facts to constitute a cause of action, and involves the plaintiff's right to the relief demanded in the complaint.
Assuming for the moment that the defendant, Catherine Seely, is entitled to dower, of what is she entitled to be endowed? She united with her husband in the mortgage to Andrew Spickerman, to secure the payment of $2,700, which was a lien upon the land at the time of her husband's death. She was entitled to dower in the equity of redemption, if that term may still be used. The money due upon the mortgage was first to be paid, and she was entitled to the use of one-third of whatever remained during life. Shoemaker paid the money due upon the mortgage as a part of the purchase-money, and as against the widow it was in his hands, and is now in the hands of those claiming under him,
an equitable lien upon the premises. Had Shoemaker taken an assignment of it, in place of satisfying it, and had it been transferred to the subsequent owners to protect the title, she could have redeemed upon payment of a ratable portion of the money due, and until she did so redeem, she could not have entered. And so Shoemaker having paid the mortgage, and those who have acquired his rights may require her to contribute to its payment as a condition of her entry upon the lands mortgaged. These are familiar principles, and would seem to establish the plaintiff's right to this measure of relief.
In regard to the alternative relief, I think his right equally indisputable. It is to be observed that James Spickerman, by his will, gave the widow the use of one-third of his real estate during life, and the use of all his real estate in case his executors did not sell the same. And should the executors sell the real property, he then gave her the use of one-third of the proceeds during life, and the use of the whole until his children attained the age of eighteen years. The complaint states, — and its statements are to be taken as true, — that she was present and aided at the negotiations for the sale to Shoemaker, and at the time of the giving of the deed. That he was told that the land was to be free from her claim of dower, and of all incumbrances except the patroon's ground rent and the mortgage, and that a recital to this effect was inserted in the deed, with which she was made acquainted. But this is not all. The complaint also says that she had and enjoyed the use of the whole of the purchase-money for the lands, from the time of the sale to the time of the commencement of the action. These acts of her's have the effect to create an estoppel in pais. After inducing Shoemaker, by such representations, to make the purchase and part with his money, and after taking to herself the use of the proceeds of the sale, she will not be allowed to assert her claim to dower in the lands sold. All this seems plain enough as a defense to an action by her to recover the possession. But whether the plaintiff has a right to institute an affirmative proceeding himself, and have the dower declared to be extinguished, and she enjoined from prosecuting the action to recover the possession,
is a much graver question, upon which there may be some difference of opinion.
The subject was considered in Scott v. Onderdonk
(14 N.Y., 9), and in the opinion, Judge DENIO says: "Ordinarily a party must wait until his rights have been actually interfered with, before he can implead another from whom he anticipates injury. But there are several exceptions to the rule, and when the jurisdiction in law and equity was administered in different courts by different forms of proceeding, it was a common case for a party to appeal to a court of equity, for relief against apprehended injury to be effected by his adversary by some actin pais, or by some legal proceeding which he could not defend himself against, upon the principles of the common law." After saying that this class of cases has been narrowed by blending the two jurisdictions, he says, "there is still a principle of equity which remains in force notwithstanding the confusion of remedies by which a person may, in certain cases, institute a suit to remove a claim which is a cloud upon the title to his property." If the claim is based upon a written instrument, void upon its face, or if it requires the existence of a series of facts, or the performance of a succession of legal acts, and there is a defect as to one or more of the links, there is no reason for entertaining the litigation, and the party must wait until the pretended title is asserted." Where, also, the plaintiff claims to have a defense valid in law, and which rests upon evidence which may be lost by the lapse of time or the imperfections of memory, then I understand, also, the courts will entertain the litigation without waiting for the assertion of the claim. InThe N.Y. New Haven R.R. Co. v. Schuyler (17 N.Y., 592), the subject came up again for consideration, and Judge COMSTOCK, in the opinion, says: "The jurisdiction does not universally attach, on the mere ground that the deed or other contract is invalid. If the invalidity plainly appears on the face of the writing, so that no lapse of time or change of circumstances can weaken the means of defense, it is held that no occasion arises for a suit in equity to decree its cancellation. And the doctrine now is, that such instruments do not, in a just sense, even cast a
cloud upon the title or interest, or diminish the security of the party against whom the attempt may be made to use them. If, on the other hand, the invalidity does not appear on their face, the jurisdiction is not confined to instruments of any particular kind or class. Whatever their character, if they are capable of being used as a means of vexation or annoyance, if they throw a cloud upon the title, or disturb the tranquil enjoyment of property, then it is against conscience and equity that they should be kept outstanding, and ought to be canceled." In the light of these opinions, I think we may safely dispose of the right of the plaintiff to maintain this action. The defendant, Catherine Seely, has already claimed her dower, and had it assigned to her under the statute. When she prosecutes her action, she has only to show she was the widow of Spickerman, that he died seized, produce the record from the surrogate's office and prove the possession of the defendant, and her case for a recovery is made out. The defense will not appear upon the face of any paper, nor in the absence of any link in the chain of facts upon which the plaintiff must rely to recover. The defense rests upon parol evidence alone — evidence which exists only in the memory of living witnesses, who may be removed from life, in the natural course of events, before the defendant proceeds to assert her claim by an action in the courts. To purchasers, and all others who may be led to examine the title to the lands, the cloud will be patent and apparent, while the means of removing it will not be manifested. The plaintiff not only anticipates an injury from the pretensions and attitude of the defendant, but he actually suffers one in the prejudice to his title. I arrive, therefore, at the conclusion that upon the principle of the cases referred to, the plaintiff is entitled to maintain this action.
In answer to the objection that Abel Seely, the husband of the defendant, Catherine, is improperly made a party, it is enough to say the action was commenced in 1855, at which time the husband was a necessary party in an action against the wife. (Code of 1851, sec. 114.)
The judgment of the court below should be affirmed with costs.