[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 213 The Appellate Division, reversing the Special Term, has granted respondents' motion to *Page 215 dismiss the complaint as not stating a cause of action and the subject presented to us for consideration is the correctness of this decision. I shall pass for the moment the question whether the defendants Owen are proper parties and consider the more important questions involved in the appeal.
The plaintiff for several years has been the wife of the defendant Byrnes, and the object of her action is relief from what she alleges has been a fraudulent transfer of real estate of which her husband had the ownership and title during their marriage. The complaint makes some approach to the statement of a cause of action to set aside the transfer of this real estate because made with intent to defraud her as a creditor. This approach, however, is probably inadvertent because no attempt is made upon this appeal to sustain the complaint as setting forth such a cause of action. The effort to uphold its sufficiency is based rather upon the claim that it shows that the husband with the aid of other defendants caused himself to be divested of the legal title to his real estate for the purpose of fraudulently depriving plaintiff of her dower right therein, while at the same time retaining for himself the beneficial ownership of the land, and I shall consider solely that claim. For the purpose of setting forth this latter cause of action the complaint by its material allegations in substance alleges the marriage of plaintiff and defendant Byrnes, and the ownership with legal title by the latter of the real estate; that with the object of effecting the alleged fraudulent destruction of plaintiff's dower right the husband procured her to join with him in the execution of a mortgage upon the premises to secure the payment of a sum of money which he personally undertook to repay; that subsequently and in furtherance of his unlawful purpose he purposely refrained from paying his obligation although able to do so and caused to be instituted and prosecuted to judgment an action for the foreclosure of said mortgage; that on the *Page 216 sale under said judgment the respondent Owen, acting as agent and attorney for the husband and with money furnished by the latter, bid off and purchased the premises which he thereafter conveyed without any consideration to the defendant's sister, who also acted as his agent in his fraudulent scheme and who now holds the title to the property; that the equity in the property above said mortgage was of substantial value. Thrown in with these allegations and of no particular importance except as they furnish the background against which stand out the alleged fraudulent acts of the defendant, are allegations that the plaintiff brought an action for a separation against her husband in which there was an allowance of alimony which, owing to the successful evasion by defendant of his obligations, has reached an accumulated unpaid amount of over $14,000. It has been held that this treatment by the defendant of his wife, if not faultless, is nevertheless beyond the corrective and relieving powers of a court of equity, but I am not able to take this view.
There can, of course, be no question under the allegations of the complaint, that plaintiff's husband was legally seized of the premises in question and that thereby the plaintiff acquired an inchoate right of dower therein of which she now stands deprived by means of the acts which are set forth. Neither is there any occasion to expect dispute of the proposition that such right of dower is perhaps the most highly and widely cherished property right resulting from marriage and one which the courts have been alert to protect from fraudulent destruction such as is alleged in this action. This protective attitude on the part of courts extends to an inchoate right of dower equally with a perfected one because it is well settled that an inchoate right during the life of the husband furnishes a basis for relief such as is here being sought. (Youngs v. Carter, 10 Hun, 194, 200; Douglas v. Douglas, 11 Hun, 406, 408.)
As I understand it there is no doubt of all this and *Page 217 there would be little or no question in this case of plaintiff's right to be relieved from the fraudulent deprivation of her right of dower if such deprivation had been accomplished by ordinary steps which were not covered by the cloak of legal proceedings. But whether I am correct in this understanding or not there can be no real question that such is the law, for it is to be remembered that we are not at all dealing with a case where a husband in good faith and in the exercise of an honest judgment has refrained from paying a mortgage superior to his wife's dower right, but with a case where the conduct of the husband exhibits no feature of honesty or good faith but is thoroughly saturated with a fraudulent purpose which subjects to condemnation acts which otherwise might have been justifiable. Under such conditions the action of the courts in protecting the rights of the wife has not been tinctured by any uncertainty. (Youngs v.Carter, supra; Bookout v. Bookout, 150 Ind. 63; Walker v.Walker, 66 N.H. 390; Brownell v. Briggs, 173 Mass. 529.)
It seems to be thought, however, that because a judgment of foreclosure and sale was one of the steps in the fraudulent scheme to deprive plaintiff of her dower right, the result is immune from attack and the plaintiff barred from any relief against the injury which has been perpetrated upon her. That is where the important difference of opinion seems to arise and, for the better analysis of the question the facts, as alleged in this immediate connection, will bear repetition. They are to the effect that the defendant husband for the purpose of accomplishing his plan to deprive his wife of dower right procured her to execute a small mortgage on premises worth much more than the amount of the incumbrance; that subsequently and for the purpose of accomplishing his unlawful purpose he refused, although able to do so, to pay the indebtedness secured by such mortgage and for which he was directly and primarily liable and actively *Page 218 urged and procured the mortgage to be foreclosed and on the sale with money supplied by him procured the defendant Owen as his agent and attorney to bid off the premises which were subsequently transferred without consideration to the sister who now holds the title.
Thus the real estate of which the husband was seized subject to plaintiff's dower right has been worked around to a point where it is held for his benefit free from this right and I am aware of no principle or rule that a judgment procured on such facts as a step in the accomplishment of a fraudulent purpose is a defense to the person fraudulently procuring it to be recovered or a bar to equitable relief either against him or those who acted as his agents and representatives in attempting to capture for his benefit the proceeds of the fraud. I assume that the judgment was a valid and effective adjudication in behalf of the mortgagee that he was entitled to have foreclosure and collection of his mortgage by sale of the premises. I also assume that a bonafide purchaser bidding off the premises on the sale would have acquired a title free of plaintiff's rights. But those assumptions do not impair the strength of plaintiff's claim. That claim involves consideration of the use which the defendant is attempting to make of the judgment and presents the question which I think must be answered in the negative whether a fraudulent scheme like this can be any more successfully consummated by the use of a judgment forced by the fraudulent actor, than by the employment of some other means. No attack is made upon the decree so far as it decides the legitimate issues involved in the action leading up to it. It is only its use as a means of accomplishing an unlawful object which is assailed and, so far as that is concerned, I do not see that it is any more effective than would be a deed or other transaction which was made a fraudulent means to the accomplishment of a forbidden end. The fraudulent purpose affects and condemns the use and to that extent limits its effect. *Page 219
Nor in my opinion is the problem at all affected by the fact that this plaintiff was a party to the foreclosure action. It is alleged that at that time she was ignorant of the fraud which was being perpetrated upon her. But independent of that the facts which she now alleges would not have raised an issue or presented a defense in the foreclosure action. They were outside the issues in that action and it would have been no answer to the attempt of the mortgagee to collect his mortgage that the husband who was bound and able to pay his obligations was purposely refraining from so doing in order to accomplish the result which has been pointed out. It was no valid defense or equitable offset to the mortgagee's right to collect his debt that the husband fraudulently refrained from paying it. (Decker v. Decker,108 N.Y. 128; Lilienthal v. Betz, 185 N.Y. 153, 158; Lynch v.Burt, 132 Fed. Rep. 417, 427; Turner v. Kuehnle, 70 N.J. Eq. 61. )
Fortunately, on this question, we are not compelled to rely on mere general principles as a basis for the views which have been stated, for decisions are at hand which recognize and quite directly affirm their correctness when applied to facts such as are here set forth, and hold that a wife's dower right is not cut off by judgment in a foreclosure action to which she is a party when such foreclosure is wrongfully caused for that very purpose by refusal to pay the mortgage on the part of those who were bound to do so. (Gilson v. Hutchinson, 120 Mass. 27, 32;Brownell v. Briggs, 173 Mass. 529, 532; Munroe v. Crouse, 59 Hun, 248.) The latter case in its outstanding facts was strikingly similar to the present one and its authority, so far as I am aware, has never been questioned. The plaintiff had joined with her husband in executing a mortgage upon an undivided interest in real estate which subsequently became valuable. The defendants purchased such interest under circumstances which imposed upon them the primary duty of paying the *Page 220 mortgage. Instead of doing this they refused to pay the interest thereon for the purpose as stated in the opinion "of compelling a foreclosure of the mortgage, intending thereby especially to cut off the plaintiff's claim of dower [her husband having died in the meantime] and deprive her of any rights or interest she might have in said premises." Their plan was consummated by foreclosure action to which the wife was a party and they bid off the premises on the sale. In the action by plaintiff to assert her dower right notwithstanding such foreclosure and sale they claimed, as is asserted here, that the property had been purchased on a foreclosure sale and title obtained which divested plaintiff of her dower, and the court stated: "The only real question * * * is whether the title acquired by the defendants by their purchase at the sale on the foreclosure of the mortgage was a bar to the plaintiff's action for dower," and it was held that it was not. It is not at all overlooked that in that case it was held that the defendants by reason of the terms of their original purchase whereby the amount of the mortgage was credited on the purchase price had become burdened with a duty to apply such amount to the payment of the mortgage for which they had become primarily liable. Those facts in my opinion, however, do not at all distinguish the principle of that case from the present one. Here the defendant husband was under a primary obligation to pay the mortgage and he fraudulently refrained from performing that act in order to deprive the plaintiff of her right of dower. In each case the principal actor refused to do what he should have done in order to accomplish the same purpose, and it makes no difference to equity whether the claim to its relief is based upon an allegation of breach of duty or upon an allegation of an attempt by affirmative fraud to accomplish an unrighteous result. Certainly this and the other cases cited are authority for the proposition that equity is not confronted by any insurmountable barrier to the relief which it *Page 221 would otherwise afford to the victim of a fraud, because somewhere in the scheme leading to this fraud there is found a judgment which was a well-defined step in its attempted accomplishment.
The cases which are especially relied on as sustaining respondents' view that this complaint does not state a cause of action, not only do not do this but one of them, in my opinion, indirectly sustains the contrary view. In the case of Phelps v.Phelps (143 N.Y. 197) the attempt was being made by a wife to establish a right of dower in lands whereof her husband had never been seized and this court, in its refusal to give her the relief which she desired based its decision solely upon such lack of seizin. It seems to me that that case was quite different than the present one in which the husband is seeking to deprive the wife of a right which she has already acquired, by fraudulent methods. In the case of Melenky v. Melen (233 N.Y. 19), and which is the last case in this court dealing with this general question, the plaintiff was seeking to establish a right of dower in lands conveyed by her husband in good faith before marriage to his son under a trust, and a life estate wherein was subsequently reconveyed by the son to the father, one of the purposes of the limited conveyance being to prevent the wife from acquiring a dower right. This court refused to grant her the relief which was desired, holding amongst other things that the original transfer by the husband could not be a fraud upon the plaintiff because made before the marriage, that the plaintiff's husband was the only one who had a right of action against the son for failure to comply with the trust and that so long as he was satisfied with what had been done the wife had no right of action such as she was trying to enforce. But Judge CARDOZO, writing in behalf of the court, significantly added: "This is not a case where thegrantor has attempted by a clandestine transfer of the title to modify the incidents of a marriage about to be contracted [referring to cases herein cited]. *Page 222 The transfer was made to promote his [the husband's] business convenience, when no marriage was in view. He is not subject to the reproach of plotting a fraud upon his wife." It would seem as though these latter sentences were a pretty definite indication that when the husband passed beyond the realm of legitimate and honest treatment of his wife and attempted to deprive her by a fraudulent scheme of that to which she was entitled in the way of dower right, the court would not dismiss her appeal to equitable powers for relief against the wrong which was being attempted.
There remains the question of less general importance than those already discussed whether it was permissible, even though not necessary, to join as parties the defendants Owen. This question has not been discussed with any thoroughness by counsel and, therefore, we are without the benefit of any well-considered views on their part.
It is too clear to require debate that the defendant Ruth M. Owen is not a proper party. The only allegations against her are that she is the wife Clifford H. Owen and, therefore, acquired an inchoate right of dower when the title to the premises in question passed to him. But this inchoate right has been entirely cut off by her joining in the conveyance subsequently executed by him.
The question in the case of Clifford H. Owen is somewhat more difficult but a majority of the court think that the defendant Clifford H. Owen is a proper though not a necessary defendant. The complaint alleges in effect that he was a party to the conspiracy, buying in the property as agent and thereafter conveying it to the husband's sister. If it should develop on the trial that the sister had afterwards conveyed to a purchaser in good faith, or was such a purchaser herself, the plaintiff might be entitled to some form of equitable relief against the intermediary who had fraudulently co-operated to despoil her of her dower. (Mack v. Latta, 178 N.Y. 525, 529, and cases cited; Hedden v. Griffin, *Page 223 136 Mass. 229; Valentine v. Richardt, 126 N.Y. 272.) It cannot be said in advance whether such relief will be appropriate and, therefore, the plaintiff is entitled to bring in as parties to the record all the participants in the conspiracy against whom in any contingency relief may be awarded.
It is thought that joinder of the intermediate grantee is permissible for still another reason. If he were not a party to the action, he might be heard to deny hereafter that his conveyance to the sister, whatever its form, was absolute in fact. He might claim that it was subject to a trust, or that it was security for a debt. The plaintiff is at liberty to join him to the end that such claims may be foreclosed. (Cook v. Lake,50 App. Div. 92, 94; City Equity Company v. Elm Park RealtyCompany, 135 App. Div. 856, 859.)
In reaching these conclusions we do not pass upon the form of plaintiff's prayer for relief. Independent of any other questions which may arise of course she will have no claim for rents and profits upon the complaint as now framed.
The judgment, therefore, in favor of the defendant Ruth M. Owen should be affirmed, with costs, and the judgment of the Appellate Division in favor of the defendant Clifford H. Owen reversed and the order of the Special Term should be affirmed, with costs in this court and the Appellate Division.