Rush v. Dilks

Lewis, J.: The agreement of Dilks to pay the amount of the Boyington mortgage to the respondent, Rush, though made to the McCarthys for the benefit of Rush, was supported by a good and valuable consideration, and can be enforced for the benefit of Mr. Rush. [285] (Lawrence v. Fox, 20 N. Y., 268; Van Schaick v. Third Avenue R. Co., 38 N. Y., 346; Barlow v. Myers, 64 N. Y., 41.) The contention of the appellant’s counsel is, that Mr. Dilks was not, in these transactions, the agent of Mrs. Dilks, and that, as the only acts of the appellant were accepting the conveyance of the premises, and executing and delivei-ing conveyances thereof, and as she neither paid the purchase-price of the premises conveyed to her, nor received the pay therefor when she conveyed them, she is not to be held liable for the acts of her husband; that he did not become her agent. Iler husband assumed to act for her in the negotiations which resulted in the conveyance to her of the premises; she knew that her husband had procured the conveyance to be made to her ; she accepted the deed, and thereafter conveyed the premises by warranty deeds to bona fide purchasers for a good and valuable consideration. The conveyance vested in her the title to the land exempt from the control of her husband, notwithstanding he paid a part of the purchase-price, by force of 1 Revised Statutes, 72S, section 51, article 2, title 2, chapter 1, part 2. Having ava .led herself of the results of her husband’s acts and promises made when he was negotiating the sale to her, she must be held to have adopted his acts and thereby made him her agent in the transaction. If she did not wish to perform his agreements made for her benefit she should have refused to accept the deed. Having become the owner of the land she was entitled to control it and to receive the avails of its sale, and her consenting that the proceeds of the sale might be received by her husband did not change her obligations- to the plaintiff. She took the title charged with every equity that would have accompanied it, had it been conveyed to her husband. (Crans v. Hunter. 28 N. Y., 389 ; Bennett v. Judson, 21 id., 238 ; Elwell v. Chamberlin, 31 id., 611; Meehan v. Forrester, 52 id., 277; Krumm v. Beach, 25 Hun, 293; S. C., 96 N. Y., 398; Boe v. Berry, 24 Weekly Dig., 5.) The court say in Bennett v. Judson (21 N. Y., 239): “ There is no evidence that the defendant authorized or knew of the alleged fraud committed by his agent Davis in negotiating the exchange of lands; nevertheless he can not enjoy the fruits of the bargain without adopting all the instrumentalities employed by the agent in bi-inging it to a consummation.” The appellant got title to the land on [286] the strength of her husbands’s promise to pay to plaintiff the amount of the Boyington mortgage as part of the purchase-price of the land conveyed to her. She has failed to pay this sum, which, through her husband, she agreed to pay. It is true she did not make the promise personally, but her husband made it for her and she took the fruits of the bargain, and fair dealing demands she should perform the agreement. By her act of conveying the property to bona fide purchasers she put it beyond the reach of the plaintiff. He cannot follow the land, as the Boyington mortgage was discharged of record and innocent purchasers have acquired title to the land released from that incumbrance. Were it not for the fraud of her agent in procuring the discharge of the Boyington mortgage she would have been compelled to pay it, or to provide for it before she could have realized the full value of the premises she conveyed. Down to the time of her conveyance she held the lands in trust for respondent’s benefit to the amount of his lien. (2 Story’s Equ. Jur., §§ 1218 to 1222.) Haviug by her own act destroyed the trust she became liable to the beneficiary for its value. (May v. Le Claire, 11 Wall, 236; Peabody v. Tarbell, 2 Cush., 227; Hart v. Ten Eyck, 2 Johns. Ch.. 77; Meehan v. Forrester, 52 N. Y., 277; Starr v. Winegar, 3 Hun., 491.) While defendant was not personally guilty of any intentional wrong in conveying the premises, her act nevertheless injured the plaintiff, an innocent party, to the amount of the value of his mortgage, and she should suffer and -not the plaintiff. This transaction concerned and benefited the defendant’s separate estate; she is liable therefore the same as if unmarried. The case of Kelly v. Geer, 101 N. Y., 665, referred to by the appellant’s counsel, is clearly distinguishable from this case. The defendant there did not own the premises conveyed, or have any interest in them; they belonged to her son ; and though she joined with him in conveying the same, it was for liis benefit and not her’s. There are some exceptions appearing in the case, but they were not discussed upon the argument, nor in the appellant’s brief, and do not appear to have any merit. The judgment appealed from should be affirmed, with costs. Haight and Bradley, JJ., concurred. Judgment affirmed.