Payne v. Becker

Barnard, P. J.: I think the plaintiff cannot maintain this action. He is a receiver appointed in proceedings supplementary to execution. The' judgment debtor, Louisa Becker, is entitled to dower in her late husband’s lands. Her dower has never been assigned. The plaintiff, as receiver, took no interest in the land. The unassigned dower right is not the subject of sale under execution or of a conveyance. The plaintiff invokes the authority of the case of Tompkins v. Fonda (4 Paige, 118). That ease was a creditor’s bill. • In the action the Chancellor appointed a receiver, with directions for him to apply for an admeasurement of the wife’s dower in her name. The plaintiff in this case rests his claim upon his legal title derived from a conveyance to him as- receiver- of an unassigned dower interest. In legal effect he claims to have derived the right by it to admeasure the dower and to sell the land if no admeasurement can be made, the same as she could do if no receiver was appointed. In Dubois v. Cassidy (75 N. Y., 299) it is strongly intimated that [32] .a receiver appointed under supplementary proceedings does not obtain such a title as entitles him to ask partition upon it. This doubt is expressed in a case where the judgment debtor had an assignable estate. In the case under consideration the interest was personal in the widow, and the assignee could not dispossess the heir at law. The judgment should be affirmed, with costs. Dykman, J.: It is provided hy our Revised Statutes that a widow shall he endowed of the third-part of all the lands whereof her husband was .seized of an estate of inheritance at any time during the marriage. (1 R. S., 740.) The statutory provision is but a confirmation of the common law, and under it the widow has a right, resting in action merely. She has no estate in the land, and, after her quarantine, has no right even to possession, for the obvious reason that, until assignment had, it cannot be known what she will have. As it is a right, she may release, but cannot convey or'assign it, nor give to another the right to maintain an action for its recovery, because, until its assignment, she has no estate in the land. She is not a tenant in common with the heirs, and cannot maintain partition. (Green v. Putnam, 1 Barb., 506; Siglar v. Van Riper, 10 Wend., 414; Yates v. Paddock, 10 Wend., 533; Ritchie v. Putnam, 13 Wend., 526.) These .plain principles dispose of this case adversely to the plaintiff’s action, for our statute only authorizes a partition where several persons hold and are in possession of lands as joint -tenants, or as tenants in common only. (2 R. S., 317, § 1.) The plaintiff claims to maintain this action as the assignee of the right -of dower of a widow before admeasurement; and when, as we have seen, she could not be in possession, neither was she a joint tenant, or a tenant in common with the heirs. As she was not herself in a situation to institute partition, she could not clothe the plaintiff with greater rights than she herself had, as the dower of the widow rested in mere right until admeasurement. She could only release it, and could not assign it, and the plaintiff took nothing by her assignment to him. It matters not that such assignment was made under an order of the court. Such order could give no [33] ■vitality to tbat wliicb. without it had no. existence. The widow had no estate in the laud and could therefore give none to the plaintiff, eveu under the order of the court. There are very grave doubts whether a receiver in supplemeut.ary proceedings obtains auy title to real estate that will enable him to maintain au action for partition. (Dubois v. Cassidy, 75 N. Y., 299.) We do not decide the question in this case, as our decision rests satisfactorily upon the ground first stated. The order appealed from must be affirmed, with costs and disbursements. Present — Barnard, P. J., and Dtkman, J.; Gilbert, J., not Bitting. Judgment affirmed, with costs.