Margaret McMahon, Appellant, v. Frank Specht, Respondent Impleaded with Others

Margaret McMahon, Appellant, v. Frank Specht, Respondent Impleaded with Others. Dower—when it is subject to a moi'tgage given by a grantee of the husband and wife — the wife is not a necessary party to an action, by a judgment creditor of the husband, to set aside the conveyance as fraudulent — effect of a conveyance by the grantee. In an action for the admeasurement of dower it appeared that the plaintiff’s husband conveyed the premises to his daughter by a deed in which the plaintiff joined; that the daughter executed a mortgage thereon to a third person, and that thereafter judgment creditors of the plaintiff’s husband brought an action to set aside ithe conveyances as fraudulent and vqid, making the mortgagor and mortgagee parties, but not the plaintiff. The judgment entered therein set aside the conveyance but sustained the mortgage, and directed its payment out of the proceeds of the sale of the premises. Held, that the lien of the mortgage was superior to any interest the plaintiff might have in the premises, and that if the -plaintiff was entitled to dower in the land such right was subject to a ratable contribution toward the payment of the mortgage; That the plaintiff was not a necessary party to the judgment creditors’ action. Qumre, as to the effect, upon the plaintiff’s right of dower, of a conveyance of the property executed by the grantee thereof. Appeal by the plaintiff, Margaret McMahon, , from an interlocutory judgment of the County Court of Niagara 'county in favor of the defendant, Frank Specht, entered in the office of the clerk of the county of Niagara on the 22d day of January, 1900, upon the decision of the court adjudging that the plaintiff is entitled to dower in the premises described in the complaint but subject to a ratable contribution by her towards the payment of the mortgage given by one Mary McMahon to Myron L. Burrell, as executor. William H. Vicary, for the appellant. Edward C. Hart, for the respondent. [MAJORITY — Spring, J. :] Spring, J. : This is an action for the admeasurement of dower brought by the plaintiff July J, 1891, as the widow of Thomas McMahon, deceased. The husband owned the premises in question February 6, 1898, and on that day conveyed them to his daughter Mary by deeds of conveyance in wdiich his wife, the plaintiff, joined. On December 8,1893, the grantee executed a mortgage to Myron L. Burrell, as executor, to secure the payment of $1,200, but only $800 were advanced to the mortgagor. Judgments were recovered against Thomas McMahon and proceedings supplemental to execution instituted and an action was commenced to set aside the conveyances as fraudulent and void which resulted in favor of the judgment creditors and judgment was entered declaring the conveyances were made to hinder, delay and defraud the creditors of McMahon. The plaintiff was not made a party to this action.. Burrell, the mortgagee, and the mortgagor were made parties defendant, and Burrell answered asserting the validity of his mortgage. The judgment sustained the mortgage and the receiver was directed to sell the lands and out of the proceeds to pay the costs and expenses and the amount unpaid on the mortgage, and then the judgments of the plaintiffs who attacked the conveyances. The County Court held that the plaintiff, while entitled to the assignment of her dower in the land in controversy took subject to a ratable contribution toward the payment of the mortgage. As the case is presented to us the only point to determine is whether the Burrell mortgager was a lien superior to any interest the plaintiff may have had in the premises. The mortgage was executed by Mary McMahon whose only title was acquired from the plaintiff and her husband. Certainly they are estopped from impeaching any conveyance or incumbrance their grantee made. The judgment declaring the deed of McMahon and his wife void as in fraud of creditors vacated it, only for the purpose of enabling the judgment creditors, who had successfully assailed it, to enforce their liens, but for all other purposes the conveyance continues in force. (Knapp v. Crane, 14 App. Div. 120; Moseley v. Moseley, 15 N. Y. 334.) Every one necessary to sustain the validity of the Burrell mortgage was a party to the action to set aside the conveyance. The plaintiff was not a necessary party to that action, as she had parted with her interest, any more than as if the deed had been to foreclose the mortgage. Instead of decreeing a sale subject to the Burrell mortgage the judgment directed its payment from the proceeds of the sale, which is tantamount to it. The defendant, the purchaser, who has paid the mortgage pursuant to: the judgment of the court, is subrogated to the rights of the mortgagee. (Everson. v. McMullen, 113 N. Y. 293.) It appears that on June 16, 1894, Mary McMahon conveyed the premises to one Jane Moloney. If this grantee acquired title in good faith, the inchoate dower right of the plaintiff became vested in her and' plaintiff would not be entitled to participate at all in the avails of the sale pursuant to the judgment. Jan© Moloney was not a party to either action and there has been no appeal by the defendant and we are not called upon, therefore, to pass Upon the effect of this conveyance. The interlocutory judgment should be affirmed, with costs and disbursements to the respondent. All concurred. Interlocutory judgment affirmed, with costs. .