On the 2d of June, 1910, the plaintiff and the defendant Sylvester Byrnes were married. At the time of the marriage he was the owner of certain real estate described in the complaint. On the 19th of November, 1910, and while they were living together as husband and wife, Sylvester Byrnes and the plaintiff executed and delivered a mortgage to the Title Insurance Company of New York for $2,500 upon such real estate, which mortgage was accompanied by Sylvester Byrnes' bond in which he promised to pay the amount at the time *Page 224 and in the manner specified in the mortgage. The mortgage was recorded, and on the 30th of November 1910, it and the bond accompanying the same were assigned to one Trowbridge, which assignment was also recorded. Default having been made in the payment of the principal and certain interest secured by the mortgage, Trowbridge, on the 6th of November, 1913, commenced an action to foreclose and in that action the plaintiff and said Byrnes were made defendants. The foreclosure action resulted in a judgment of foreclosure and sale, and for the latter purpose one Cogswell was appointed referee to sell. In due time the property was sold and was purchased by the respondent Clifford H. Owen, to whom the referee gave a deed which was recorded on the 14th of March, 1914. Thereafter, and on or about the 21st of April, 1919, Owen and his wife, Ruth M., conveyed the premises to the defendant Margaret J. Byrnes, a sister of Sylvester Byrnes.
This action was commenced on the 24th of March, 1925, to procure a judgment that the defendant Sylvester Byrnes fraudulently, and with the intent and purpose of defrauding the plaintiff and depriving her of her inchoate right of dower in the real estate described, permitted and caused the said mortgage to be foreclosed notwithstanding the fact that he was at all times able and had the means to pay the amount due; that at the sale under the foreclosure judgment he induced the respondent Owen, as his agent, to bid in the property and take the title thereto, Byrnes having furnished the purchase money; that Owen held the title to the premises as such agent until he conveyed the same to Margaret J. Byrnes, she also taking the title as the agent of Sylvester Byrnes, and paying no consideration for such conveyance; that the defendant Margaret J. Byrnes be directed to reconvey to Sylvester Byrnes; that she account for the rents and profits while she held the title and that Owen also be directed to account for the rents and profits while he held title; *Page 225 for an injunction preventing a transfer during the pendency of the action, and for the appointment of a receiver during such time.
The complaint sets up the facts above stated and, in addition thereto, alleges that the earnings of Sylvester Byrnes aggregated, during all the times specified in the complaint, at least $600 monthly. It also alleges that on the 11th of March, 1912, the plaintiff procured a judgment of separation from the defendant Byrnes upon the ground of abandonment, which judgment awarded her the sum of $150 per month alimony payable on the first day of each and every month during the life of said Byrnes, and that there is now due of such alimony upwards of $14,000 which Byrnes has neglected and refused to pay.
After the complaint had been served upon the respondents, they moved, pursuant to rule 106 of the Civil Practice Act, for an order dismissing the complaint upon the ground that the same did not state facts sufficient to constitute a cause of action against them. This motion was denied and they appealed to the Appellate Division, which reversed the order of the Special Term and granted the motion and dismissed the complaint as to them. The plaintiff appeals to this court.
The question presented by the appeal is, Do the facts alleged in the complaint, assuming as we must that such facts are true, constitute a cause of action against the Owens? I do not think they do. The plaintiff's theory of her right to maintain the action apparently is that the husband's fraudulent acts and those of the other defendants acting in his behalf have been to deprive her of her inchoate right of dower in the real estate in question. The statute provides that "A widow shall be endowed of the third part of all the lands whereof her husband was seized of an estate of inheritance, at any time during the marriage." (Real Property Law, sec. 190; Cons. Laws, ch. 50.) The plaintiff's husband is not seized of such an estate nor has he been since the mortgage was foreclosed *Page 226 and the sale made in pursuance thereof. The plaintiff joined in the mortgage and thereby, if the mortgage was not paid, extinguished her inchoate right of dower. It is not claimed, and could not well be according to the facts set forth, that she was induced to join in the execution of the mortgage by reason of any deception or fraud practiced upon her. It is not claimed, and could not well be, that she was misled or deceived as to the foreclosure, other than that Sylvester Byrnes had the means to pay the amount due and was obligated to do so under his bond, and that his failure in this respect was for the sole purpose of depriving plaintiff of her inchoate right of dower. I know of no authority, nor have I been able to find any, to support the contention that his failure to make the payment when he was able to do so and thus prevent a sale constituted a fraud which entitles the plaintiff to the equitable relief asked. Assume that Byrnes deliberately permitted the mortgage to be foreclosed, knowing that the result would be the destruction of plaintiff's inchoate right of dower. Such action on his part did not constitute an infringement of her rights since he was under no duty to take affirmative steps for her protection. The plaintiff, as already indicated, voluntarily joined in the execution of the mortgage. She was made a party defendant in the foreclosure action. I do not understand that any fraud is alleged with reference to the proceedings of foreclosure, other than that the defendant Byrnes should have paid the amount due. Being a defendant in that action, if there was any fraud in the foreclosure proceedings, then it was her duty in such action to have alleged and proved the same. Having failed to do this, she cannot now in an action brought nearly twelve years afterwards be heard to say that the foreclosure action was not regularly maintained. (Albany County Savings Bank v. Bartow, 115 Misc Rep. 233; affd., 201 App. Div. 879.) He was under no obligation, so far as she was concerned, to pay the mortgage if he did not see fit to do so. *Page 227 I know of no authority which enables a wife to compel her husband to use his personal property as she desires, except in the case of her support and the support of her children. (Phelps v.Phelps, 143 N.Y. 197; Melenky v. Melen, 233 N.Y. 19;Nichols v. Park, 78 App. Div. 95.)
Under the facts alleged Sylvester Byrnes could undoubtedly maintain an action against the defendant Margaret J. Byrnes to compel her to reconvey to him the real estate in question, since she took and now holds the title as his agent and having paid no consideration therefor. This he does not see fit to do and it is not for the plaintiff to say that he should do so for her benefit. The fact is not disputed that the legal title has not been in the defendant Sylvester Byrnes since the foreclosure of the mortgage and the sale thereunder. In Melenky v. Melen (supra), one Reuben Melen conveyed certain land to his son Asher P. Melen under an agreement by which the son promised to reconvey to this father upon demand. Sometime thereafter the father married the plaintiff, telling her that he owned this real estate. After the marriage the son refused to comply with the demand to reconvey the premises. He did, however, give to his father a life lease which was accepted, and the father refused to bring an action to enforce the agreement to reconvey. The purpose of the son in refusing to reconvey, as well as the purpose of the father in refusing to bring an action to compel the son to carry out the agreement which he had made, was to deprive the plaintiff of her inchoate right of dower. The father's wife (the stepmother of the son) thereupon brought an action to procure a judgment establishing her inchoate right of dower and for a reconveyance to the husband. The son demurred to the complaint upon the ground that it did not state facts sufficient to constitute a cause of action. The demurrer was overruled by the Special Term and the Appellate Division, but on appeal to this court it was sustained and the complaint dismissed. The decision was placed squarely *Page 228 upon the ground that the husband's interest in the real estate was not an estate of inheritance and as such subject to the wife's dower interest. In the opinion delivered by this court, in which the other members concurred, Judge CARDOZO said: "This grantor has not attempted to enforce his chose in action. He has not asked a court of equity to undo the conveyance and re-establish the divested title. He is willing to let the transaction stand, or unwilling, at all events, to take active measures to annul it. We are now asked to say that the wife may reclaim what the husband would abandon. This means, of course, that the chose in action is not solely his, but is hers also, to the extent of the benefit that would come to her if he had chosen to enforce it. We find no adequate basis for such a conclusion either in principle or in precedent." In the case just cited the plaintiff's husband could have brought an action in equity to compel the son to reconvey. This he did not do, taking instead a life lease. His purpose as well as the purpose of the son was obviously to deprive the wife of her inchoate right of dower.
In the case at bar the defendant Sylvester Byrnes is in a position to compel a reconveyance to him by Margaret J. Byrnes but, as in the case just cited, he does not do this and is satisfied to let the transaction stand as it is. And this court is without power to compel him to act for the wife's benefit.
In Phelps v. Phelps (supra) the husband purchased certain real estate and, for the purpose of depriving the wife of her inchoate right of dower therein, took title in a dummy, the husband, however, having the beneficial use as well as the management and control of such real estate. The wife there brought an action to establish her inchoate right of dower, alleging as the basis of such action the fraudulent acts of the husband in placing the title where her inchoate right of dower would not attach; that such action on his part was a fraud in that it deprived her of a right which she otherwise would have. This *Page 229 court held the action could not be maintained. (See, also,Nichols v. Park, supra; Leonard v. Leonard, 181 Mass. 458;Seaman v. Harmon, 192 Mass. 5.)
But irrespective of whether the action can be maintained against Sylvester Byrnes and Margaret J. Byrnes, I am unable to see how in any view it could be maintained against these respondents. Certainly the respondent Ruth M. Owen is neither a necessary nor a proper party to the action. There are no allegations in the complaint which connect or tend to connect her in any way with the transactions alleged to be fraudulent, other than that she joined with her husband, Clifford H. Owen, in the conveyance to Margaret J. Byrnes for the purpose of cutting off any dower interest in the property which she may have had because of the legal title having been vested in her husband. The complaint as to her, therefore, was properly dismissed. It is difficult for me to conceive upon what theory the husband, Clifford H. Owen, has been made a party to this action. The only connection which he is alleged to have had with the title to the real estate is that he held the legal title as the agent and dummy of the defendant Sylvester Byrnes. The complaint alleges that on the 21st of April, 1919, more than six years ago, he conveyed the title to the premises to Margaret J. Byrnes, thereby divesting himself of all interest in the same. Why should he be made a party? It is not claimed that he has any interest in the real estate. Whatever interest he may have once had, if any, he voluntarily passed to Margaret J. Byrnes. What more can the plaintiff ask, so far as he is concerned? What more could a judgment do if plaintiff obtained one? He makes no claim to the property. The complaint alleges that any title which he may once have had has passed to Margaret J. Byrnes. If plaintiff can obtain a judgment directing her to reconvey to Sylvester Byrnes, that is all she can ask and all to which she would be entitled. *Page 230
But it is urged that the complaint asked for an accounting by Clifford H. Owen of the rents and profits of the premises while he held the title. Accounting to whom? Certainly not to the plaintiff. She has no interest in the rents and profits. Nor is she in a position to ask for an accounting for and on behalf of Sylvester Byrnes. If Owen is indebted to Byrnes, he and not the plaintiff is the person to enforce his claim. Not only this but there are no allegations in the complaint to the effect that Owen ever agreed to pay to Sylvester Byrnes the rents and profits while he held the title. Nor is there any allegation that Owen ever went into occupation or possession of the premises, collected any rents, or realized any profits through the title which he held. Obviously, under such circumstances, the plaintiff is in no position to ask for an accounting from Owen.
Finally, it is suggested that the action can be maintained as a judgment creditor's action. The complaint will be searched in vain to find the necessary facts alleged to permit the maintenance of such an action. Before a judgment creditor's action can be maintained, the creditor must exhaust his remedy at law. Here there is not a pretense that the plaintiff has exhausted her remedy at law. If Byrnes has been and is now receiving $600 per month, then there is a way in which she can reach at least a portion of it, in payment of her alimony. The issuance of an execution and the return of the same unsatisfied are the usual prerequisites to the maintenance of a judgment creditor's action. If, as plaintiff alleges, Sylvester Byrnes is the real owner of the real estate in question, sequestration proceedings might possibly be resorted to or the property levied upon and sold under an execution. The action cannot be maintained as a judgment creditor's action upon the facts set out in the complaint, without violating every principle relating to such actions of which I am aware.
The order and judgment appealed from, therefore, *Page 231 should be affirmed, with costs in this court and in the Appellate Division.
CARDOZO, POUND and ANDREWS, JJ., concur with HISCOCK, Ch. J.; McLAUGHLIN, J., writes opinion dissenting in part, in which CRANE, J., concurs; LEHMAN, J., not voting.
Judgment accordingly.