Foster v. Hickox

Ryan, C. J. It appears by the complaint that the appellant’s husband and codefendant made the mortgage in suit for purchase' money upon his purchase of the mortgaged premises, and that the appellant is not a party to it. It does not appear whether the transaction took place before or during the cover411 tare of the'appellant. But the complaint states that she has or claims some interest by reason of her relation to the mortgagor. Ch. 89, sec. 1, R. S., provides that the widow shall be entitled to dower in all lands of which the husband was seized during the marriage, unless barred. Sec. 8 provides that when the mortgagor marries after mortgage, his widow shall, be entitled to dower, except as against the mortgagee and those claiming under him. Sec. 4 provides that when, during marriage, the husband purchases and mortgages for purchase money, his widow shall not be entitled to dower against the mortgagee or those -claiming under him, but shall be as against all others. And the question raised by the appellant’s demurrer .is, whether she is properly a defendant to this foreclosure. A doubt is expressed in Cary v. Wheeler, 14 Wis., 281, whether the wife is a necessary party to the foreclosure of her husband’s mortgage in which she joins. But on mature reflection and examination we are satisfied that the great weight of authority, as well as the almost universal practice of the profession, is against the doubt. And without any extended discussion or consideration of the authorities here, we are disposed to agree with KENT, 0., that she is a necessary party. Tabele v. Tabele, 1 Johns. Ch., 45. And the question does not seem to us to be materially different in principle when the mortgage is within sec. 3 or 4 of the statute. For under the first section, when the mortgagor dies seized or having been seized during marriage (Wood v. Trask, 7 Wis., 566), there appears to be a general presumption that his widow is entitled to dower. This presumption would prevail against one claiming under foreclosure of her husband’s mortgage, unless it should appear that 'the mortgage was executed by her, or was given before her marriage, or was given during her marriage for purchase money. When the particular fact relied on to bar her right is pleaded by the plaintiff in [412] the foreclosure, and she is a party to it, the judgment is conclusive against her. When she is not a party, it may be that, notwithstanding the fact, her right to redeem as doweress is not foreclosed (Bell v. Mayor, etc., 10 Paige, 49; Mills v. Van Voorhees, 20 N. Y., 412); and it is certain that she is not concluded by the decree from litigating the fact. Thus, when she is not a party, the validity of the purchaser’s title against her right, upon her survival of the mortgagor, is left unsettled by the judgment of foreclosure, to be determined by future litigation. This is not according to the practice or policy of courts of equity. “ It is the constant aim of courts of equity to do complete justice, by deciding upon and settling the rights of all persons interested in the subject matter of the suit, so that the performance of the decree may be perfectly safe to those who are compelled to obey it; and also that future litigation may be prevented. Hence the common expression, that .courts of equity delight to do complete justice, and not by halves.” Story’s Eq. Pl., § 72. In equity there is a distinction between proper parties to be bound by the decree at the election of the plaintiff, and necessary parties without whom the court cannot proceed to judgment. Bailey v. Inglee, 2 Paige, 278. It cannot properly be said, perhaps, where the wife is not a party to the mortgage, that she is a necessary party to the foreclosure, as where she is a party to the mortgage; but she is certainly a proper party, to bar ber claim to dower as against the purchaser and so quiet his title. In this case, the appellant’s claim to a right of dower appears to depend on the averment that the mortgage is for purchase money. If that averment be not true, she ought to have an opportunity to litigate it; if it be true, her claim ought to be barred. In either case, the decree should determine, as far as practicable, the certainty of the title which the purchaser is to take. [413] By the Court. — The order of the court below is affirmed, and tbe cause remanded for further proceedings.