Matthews v. Duryee
New York Court of Appeals
This action was brought to recover dower in surplus funds, arising from sales under decrees of foreclosure. Plaintiff is widow of Charles S. Matthews, deceased, who owned in fee simple, during the marriage, the real estate ^described in the pleadings. These lands were subject to three mortgages, in two of which the plaintiff joined, the third being for part of 'the purchase-money.
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This action was brought to recover dower in surplus funds, arising from sales under decrees of foreclosure. Plaintiff is widow of Charles S. Matthews, deceased, who owned in fee simple, during the marriage, the real estate ^described in the pleadings. These lands were subject to three mortgages, in two of which the plaintiff joined, the third being for part of 'the purchase-money. On the 30th of September, 1857, the husband of plaintiff made a general assignment to the defendant, Duryee, in trust for the benefit of creditors, in which plaintiff did not join. In 1858 and 1859, these mortgages…
1DissentWoodruff, J.
I do not think it necessary to determine, on this appeal, the effect of a foreclosure of a mortgage, given by a husband and wife, upon the inchoate right of dower of the wife in the equity of redemption. Conflicting views upon the subject have been expressed.
On the one hand, that, as a consequence of the original making and delivery of the mortgage, and one which the parties must have contemplated as the result, if the mortgage debt is not paid, and by force of the power of sale, the surplus of the proceeds remaining after a sale and satisfaction of the decree becomes personal property, and…
2Cases cited7 opinions
- Lewis v. . SmithNew York Court of Appeals · 1854
- Moore v. . the Mayor, Aldermen, C., of New YorkNew York Court of Appeals · 1853
- Jackson v. EdwardsNew York Court of Chancery · 1839
- Denton v. NannyNew York Supreme Court · 1850
- Frost v. PeacockNew York Court of Chancery · 1846
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