money mortgage need not, under this section, necessarily be given to the vendor, but is valid in the hands of a third person furnishing the consideration.55 If the foreclosure is by suit, and the wife is not made party, she may redeem after decree, her right in the equity of redemption not being affected.56 Where the foreclosure and sale are statutory under a power of sale contained in a purchase-money mortgage, the right of dower of the wife, who was not a party to the mortgage, is barred.57 Dower Subject to Vendor's Lien. As a vendor has a lien for unpaid purchase money 58 the widow of the purchaser takes her dower in the land subject to the equitable lien of the vendor for unpaid purchase money,59 and this lien may be enforced in favor of third persons.60 Vendee's Lien. Now that vendees are decided to have an equitable lien for contract advances and disbursements,61 the widow may by analogy be endowed of such interests.62 Dower in Surplus Moneys. The wife has dower in the surplus moneys arising on sale under such a purchase-money mortgage, even as against husband's creditors.63 But she can demand only that one-third thereof be invested during the joint lives of her husband and herself and her own life if she survive. In case she survive she is entitled to the income. There is no provision of law entitling her to the payment of a gross sum in her husband's lifetime.64 55 Kittle v. Van Dyck, 1 Sandf. Ch. 76; Boies v. Benham, 127 N. Y. 620, 624; Sheldon v. Hoffnagle, 51 Hun, 478; Taggart v. Rogers, 49 id. 265, 34 N. Y. St. Rep. 942; Campbell v. Ellwanger, 81 Hun, 259. 56 Mills v. Van Voorhies, 20 N. Y. 412; McKenna v. Fidelity Trust Co., 98 App. Div. 480. 57 Brackett v. Baum, 50 N. Y. 8; cf. Revisers' note to 1 R. S. 741, § 6. 58 Bennett v. Murphy, 123 App. Div. 102. 59 Warner v. Van Alstyne, 3 Paige, 513; cited Chase v. Peck, 21 N. Y. 581, 584; cf. Dodge v. Manning, 19 App. Div. 29; Villone v. Feinstein, 132 App. Div. 31. co McWhorter v. Stewart, 39 App. Div. 212. 61 Occidental Realty Co. v. Palmer, 117 App. Div. 505; Eterman App. Div. 829; Clarke v. Long (2 Hawley v. James, 5 Paige, 543, 454, 456; Matter of McKay, 5 Misc. Rep. 123; Starbuck v. Starbuck, 62 App. Div. 437; Hugel v. Hugel, 122 i1 227. (3174, Real Prop. Law; Vartie v. Underwood, 18 Barb. 561; Denton v. Nanny, 8 id. 618; Blydenburgh v. Northrop, 13 How. Pr. 289; Matthews v. Duryee, 45 Barb. 69. (4 Citizens' Savings Bank V. Mooney, 26 Misc. Rep. 67; Emigrant Indus. Savings Bank v. Regan, 41 App. Div. 523. § 194. Surplus proceeds of sale under purchase-money mortgages. Where, in a case specified in the last section, the mortgagee, or a person claiming under him, causes the land mortgaged to be sold, after the death of the husband, either under a power of sale contained in the mortgage, or by virtue of a judgment in an action to foreclose the mortgage, and any surplus remains, after payment of the money due on the mortgage and the costs and charges of the sale, the widow is nevertheless entitled to the interest or income of one-third part of the surplus for her life, as her dower. Formerly section 174, Real Property Law of 1896, chapter XLVI, General Laws: § 174. Surplus of proceeds of sale under purchase-money mortgages. Where, in a case specified in the last section, the mortgagee, or a person claiming under him, causes the land mortgaged to be sold, after the death of the husband, either under a power of sale contained in the mortgage, or by virtue of a judgment in an action to foreclose the mortgage, and any surplus remains, after payment of the money due on the mortgage and the costs and charges of the sale, the widow is nevertheless entitled to the interest or income of one-third part of the surplus for her life, as her dower.(5 Section 174 was formerly Revised Statutes, 741, section 6: § 6. Where, in such case, the mortgagee, or those claiming under him, shall, after the death of the husband of such widow, cause the land mortgaged to be sold, either under a power of sale contained in the mortgage, or by virtue of the decree of a court of equity, and any surplus shall remain, after payment of the monies due on such mortgage and the costs and charges of the sale, such widow shall nevertheless be entitled to the interest or income of the one-third part of such surplus, for her life, as her dower.66 Reason of this Enactment. The original revisers say that the rule stated in this section prevailed in Chancery, but not when the sale was under a power, although the equity was the same.67 Since the Revised Statutes, this divergence is reconciled, and no matter in which way the surplus arises, the widow is endowed.68 The section applies only to a sale after the death of the husband, and not a sale in the lifetime of the husband.69 In Brackett v. Baum it is said: 65 Repealed by Real Prop. Law of 1909, § 460, art. 14, chap. 50, Consolidated Laws. See below, § 460. 66 Repealed, chap. 547, Laws of 1896. 67 Revisers' note to IR. S. 741, § 6. 68 Denton v. Nanny, 8 Barb. 618; Vartie v. Underwood, 18 id. 561; Matthews v. Duryee, 45 id. 69; Blydenburgh v Northrup, 31 How. Pr. 289. II. 69 Brackett v. Baum, 50 N. Y. 8, This section " contains no express declaration that the sale under the power shall bar the dower of the wife, even in the case mentioned; but the plain import of the language is to assume that such would be the effect of the sale." The section immediately preceding, "provides that when the mortgage is given by the husband for purchase money, the widow shall not be entitled to dower in the land as against the mortgagee and those claiming under him, * * * though she shall not have united in the mortgage." But no provision is made for the case of a sale in the lifetime of the husband. It was, however, held that a statutory foreclosure and sale under a power of sale, contained in a purchase-money mortgage, bars the right of dower of the wife of the mortgagor, when not a party to the mortgage.7 70 70 Brackett v. Baum, 50 N. Y. 8, 11. § 195. Widow of mortgagee not endowed. A widow shall not be endowed of the lands conveyed to her husband by way of mortgage, unless he acquires an absolute estate therein, during the marriage. Formerly section 175, Real Property Law of 1896, chapter XLVI, General Laws: § 175. Widow of mortgagee not endowed. A widow shall not be endowed of the lands conveyed to her husband by way of mortgage, unless he acquires an absolute estate therein, during the marriage.70% Section 175 was formerly 1 Revised Statutes, 741, section 7: § 7. A widow shall not be endowed of lands conveyed to her husband by way of mortgage, unless he acquire an absolute estate therein, during the marriage.71 Comment. When the original of this section was drawn, it had been finally decided in New York that in both law and equity a mortgage was a mere security, and that even after default the mortgagee had not the legal estate, but a mere chattel interest.72 As a mortgagor's widow had dower in the equity of redemption and the mortgagee's interest was only a chattel, the wisdom of this provision of the statute has never been questioned. Mortgagee in Possession. Even where the mortgagee takes possession and then dies, such possession is but an incident and part of the security.73 Such a possession cannot be said to be a "seisin of the husband which entitles the widow to dower, within the existing law of dower. When the Legislature took away the remedy of ejectment from a mortgagee, they probably intended to sweep away the only remaining vestige of the common law which regarded a mortgage of a freehold as a conveyance. The intention being that a mortgage in this State should be a security and not a conveyance, it is difficult to perceive why the possession of the mortgagee should better the widow's claim to dower in the freehold. 74 Of course, if a husband acquire the legal title of the mortgagor at any time, then the estate is absolute, so as to entitle the wife to her claim of dower. 70% Repealed by Real Prop. Law of 1909, 460, art. 14, chap. 50, Consolidated Laws. See below, § 460. 71 Repealed, chap. 547, Laws of 1896. 72 Revisers' note to I R. S. 741, 87, citing Jackson ex dem., etc. v. Willard, 4 Johns. 41; Collins V. V. 73 Kortright v. Cady, 21 N. Y. 343, 364, 365. 74 Kortright v. Cady, supra. § 196. When dower barred by misconduct. In case of a divorce, dissolving the marriage contract for the misconduct of the wife, she shall not be endowed. Formerly section 176, Real Property Law of 1896, chapter XLVI, G.neral Laws: 8 176. When dower barred by misconduct. In case of a divorce, dissolving the marriage contract for the misconduct of the wife, she shall not be endowed.74%1⁄2 Formerly Revised Statutes, 741, section 8: § 8. In case of divorce, dissolving the marriage contract, for the misconduct of the wife, she shall not be endowed.75 History of this Provision. By the Statute of Westminster II,76 if a wife abandoned her husband and lived with her adulterer she was barred of her dower if convict, except her husband reconciled her." So, if she were ravished and after such rape consented to the ravisher, she lost her dower, and after the death of the husband, his heir might enter.7 78 Both these ancient acts extended to the province of New York, and after independence were re-enacted among those laws of the province and England, continued here by force of the Constitution.79 But otherwise than as specified in those acts adultery was not a bar of dower, unless followed by a divorce a vinculo matrimonii.80 Such divorces were granted in England originally by act of Parliament only.81 Divorces in New York. It has been held judicially, although denied historically, that divorces a vinculo matrimonii could not be granted by any authority in the province of New York.82 Nor could they be granted in the State prior to the year 1787, when an act allowing divorces in cases of adultery was passed.83 Yet, as it has been said, in conformity with Dutch law, divorces a vinculo matrimonii 74% Repealed by Real Prop. Law of 1909, 460, art. 14, chap. 50, Consolidated Laws. See below, § 460. 75 Repealed, chap. 547, Laws of 1896. 76 13 Edw. I, chap. 34; 2 Inst. 433. 77 Reynolds v. Reynolds, 24 Wend. 193. The act 13 Edw. I, chap. 34, seems to have been re-enacted in the Duke of York's Laws for New York in 1665, title "Dowryes." 786 Rich. II, stat. 1, chap. 6. 79 Const. of 1777, § 35; 2 J. & V. 41 K. & R. 51; 1 R. L. 56. 80 Reynolds v. Reynolds, 24 Wend. at p. 194; Co. Litt. 32a, and Mr. Hargrave's note, 194. 81 1 Black. Comm. 441. 82 Forrest v. Forrest, 25 N. Y. 501, 506; Griffin v. Griffin, 47 id. 134, 138. 83 2 J. & V. 133; 1 K. & R. 93; I R. L. 197; Erkenbach v. Erkenbach, 96 N. Y. 456; Goodsell v. Goodsell, 82 App. Div. 65, 68, and cases there cited; Durham v. Durham, 99 id. 450. |