This is a motion to compel a purchaser on a sale under a judgment of foreclosure and sale, rendered by this court, to complete his purchase.
The complaint and notice of Us pendens were filed January 10, 1861. On the 9'th of January, 1861, Wakeman
Wakeman Hull (who was a party defendant) was served with process on January 10th, 1861. The deed to Mrs. Davidson was recorded January 11, 1861. Mrs. Hull was made a party defendant and served with process on January 11, 1861. Mrs. Davidson was not made a party defendant to the suit. The purchaser objects to the title on the ground that Mrs. Davidson was not 'made a party to the suit.
It is very clear that so far as Mrs. Davidson claims any interest as grantee of Mr. Hull, she is cut off from all interest in the premises in consequence of her deed not being recorded until after the filing of the complaint and notice of lis pendens, and service of process on Mr. Hull.
But it is urged that Mrs. Davidson has derived some interest from Mrs. Hull, by reason of her joining in the deed, which is not extinguished by the judgment and sale thereunder, inasmuch as process was not served on Mrs. Hull until after the record of the deed to Mrs. Davidson.
Unless, however, Mrs. Hull had some interest in the premises which was the subject of grant by her, she could not pass any to Mrs. Davidson. Now, the only interest Mrs. Hull had was an inchoate right of dower.
It is well settled law that this inchoate right is incapable of being the subject of grant; and that it cannot be granted or transferred so as to vest in the transferee or grantee a right, in the event of the death of the husband leaving the wife him surviving, to bring, either in his own name or in the name of the widow, an action of ejectment, or proceedings for adjustment, or any proceeding founded on such right of dower.
The effect of this doctrine is, that, if by virtue of any instrument of transfer executed during the husband’s life, or by authority given by the widow, after her husband’s
Upon these principles the foreclosure judgment Avould effectually bar a recovery in such proceedings. A wife may, however, bar or release her inchoate right of dower in favor of a grantee of her husband. This is done in this state by joining in the deed to the grantee; the effect of which is simply to bar or preclude the'Avife from asserting her doAver right, and not to pass any interest in the land to be held by the grantee in right of the wife.
Assuming, then, that this inchoate right can only be barred and not be granted, and that the sole effect of the wife joining Avith her husband in a deed is to bar her from asserting her dower right against the grantee, the purchaser cannot be disturbed by Mrs. Davidson; for, 1st, the decree cuts off all her rights as a purchaser from Mr. Hull; 2d, no right or interest in the land, nor any claim to any right or interest in the land, nor any right of action has passed to her in consequence of Mrs. Hull’s joining in the deed Avith her husband.
The case in 20th N. Y. Reports, (p. 412,) has no application ; for, unless Mrs. Davidson, by virtue of the deed to her, received from Mrs. Hull a grant of Mrs. Hull’s inchoate right of dower, she has obtained no interest, claim or right whereby she can, in the right of Mrs. Hull; redeem.
The fact that the papers in this action are not all sewed together, does not constitute a good objection.
They are all on file. It is the duty of the clerk to attach them together ; and any party having an interest in having them attached, can take proceedings to have it done. I cannot say that it is more incumbent on the plaintiff than • on the purchaser to have this done. It would be proper,
The purchaser must complete his purchase, and is chargeable with interest on the whole amount of his purchase money from the day on which, by the terms of sale, he should have completed.
Motion granted, with $10 costs,