Bonfoey v. Bonfoey

Grant, J. In 1891 complainant’s husband purchased 10 lots and part of an eleventh in the city of Grand Bap-ids. The price paid was $2,500, subject to a mortgage of $550. Mr. Bonfoey executed a mortgage to secure part of the purchase price, in which the wife did not join. In May, 1891, Mr. Bonfoey traded the lots in question to [85] ■defendant Bayne for a photograph gallery. Complainant refused to sign the deed to Bayne, and Bayne purchased the property subject to the mortgages, which were then ■owned by an attorney named 'Jamison. Payments had been made by Mr. Bonfoey and his wife, and about $800 remained due at the time of the transaction between Bayne and Mr. Bonfoey. Jamison at that time advised Mr. Bayne that, if Mrs. Bonfoey refused to sign the deed, her dower interest could be cut off by the foreclosure of the mortgages then owned by him. Shortly after the deal, Bonfoey filed a bill in chancery to set the transaction aside on the ground of fraud. He was defeated in this action, and therefore the question of fraud is res judicata. It is evident, however, that Mr. Bayne got the best of the transaction, and was therefore entirely willing to take the deed without the wife’s signature. Mr. Jamison foreclosed the mortgages, and, the day before the sale was to be made under the decree, complainant borrowed money, and tendered Mr. Jamison the amount due upon" his decree. Mr. Jamison refused to take it. She thereupon filed a petition in the suit, offering to pay the amount due, and asking that Mr. Jamison be compelled to assign the decree to her. This was ordered by the court, and the assignment made. ■Complainant thereupon petitioned the court to amend the decree so as to provide for the sale of the lands subject to her right of dower. This was so decreed, and the defendant Bayne appeals. It is entirely clear from this record that there was an agreement between Mr. Jamison and Mr. Bayne that Mr. Jamison should foreclose the mortgages for the express purpose of cutting off complainant’s right of dower. The inchoate right of dower is a contingent estate, which will become vested on the death of the husband, and is entitled to protection as well before as after it has become vested, and no act of the husband alone can prejudice this right. [86] Denton v. Nanny, 8 Barb. 618; Mills v. Van Voorhies, 20 N. Y. 412; Davis v. Wetherell, 13 Allen, 60; Simar v. Canaday, 53 N. Y. 298; Scrib. Dower, 481. The right of the wife to redeem and protect this interest is conceded by the defendant. It is claimed by counsel for the complainant that there was a conspiracy between Jamison and Bayne to cut off her right by the foreclosure of the mortgages, that Bayne purchased subject to these mortgages and to her right of dower, and that therefore she is entitled to dower in the entire land. We do not think the transaction was such as to give her more than she before possessed. At the time of the conveyance by her husband she was entitled to dower in the equity of redemption only. Where a husband conveyed land to his sons, subject to a purchase-money mortgage, it was held that, in estimating the widow's right of dower in the land so conveyed, it must be taken subject only to so much of the purchase-money mortgage as remained unpaid at the time of the conveyance by the husband. Newton v. Sly, 15 Mich. 391. It would be inequitable to permit Bayne to deprive complainant of her right of dower in the equity of redemption which she refused to convey. It would be equally inequitable to give her dower in the entire land without contribution. McCabe v. Bellows, 7 Gray, 148. The value of the land at the time was $3,300. The mortgages were about $800. Two thousand five hundred dollars represented, therefore, all in which she had this inchoate right. Equity will direct that course which will best protect the interests of both parties. We think her right can be protected by a sale of the land in parcels. Enough can be sold to satisfy the mortgages, and she will then retain her right in the remainder. The decree will therefore be modified in this respect. Were the land so situated that it could not be sold in parcels, it would seem reasonable that her dower should be [87] ascertained in the surplus, as was done in Unger v. Leiter, 32 Ohio St. 210, but upon that we express no opinion. Defendant will recover costs in this Court. The case, will be remanded to the court below, with instructions to proceed to sale in accordance with this opinion. McGrath, C. J., Montgomery and Hooker, JJ., concurred with Grant, J.