I concur with my brother Laughlin except in so far as he recommends the affirmance of the judgment in favor of Julia A. Sotscheck. The court having sustained the validity of the plaintiff’s mortgage to secure the amount actually loaned by the plaintiff, to the defendant, and the wife having joined in the mortgage, thereby releasing her right of dower, it seems to me that such right of dower is extinguished so far as necessary to protect the plaintiff in the enforcement of his mortgage. “ The settled theory of the law as to the nature of an inchoate right of dower, is that it is not an estate or interest in land at all, but is a contingent claim arising' not out of contract, but as an institution of law, constituting a mere chose in action incapable of transfer by grant or conveyance, but susceptible only during its inchoate state, of extinguishment. By force of the statute this is effected by the act of the wife in joining with her husband in the execution of a deed of the land. Such deed, so far as the wife is concerned, operates as a release or satisfaction of the interest and not as a conveyance, and removes an incumbrance instead of transferring an interest or estate.” ' (Witthaus v. Schack, 105 N. Y. 332.) After examining the cases, the court conclude: “ It would seem clear from the authorities that the act of the wife in joining her husband in the execution of a deed of his lands, does not constitute her a grantor of the premises, or vest in the *214grantee any greater or other estate than such as he derives from the conveyance of the husband. Its effect is merely to extinguish a contingent claim existing as a possible incumbrance, and ceasing to exist by reason of the execution of the husband’s deed, and to be revived only by the subsequent cancellation or annulment of his conveyance.”
By joining in the mortgage to the plaintiff, therefore, the wife extinguished her inchoate right of dower, which could only be revived by the annulment or cancellation of the husband’s mortgage. If that had been declared void by reason of usury or for any other cause, undoubtedly the wife’s right of dower would never have been extinguished, and she would, therefore, be entitled to enforce it if it ever became absolute by the death of her husband during her life. The court, however, has found that the mortgage was valid as against the husband and created a lien upon his interest in the land to the extent of the money actually lent to the mortgagor, and has affirmed a judgment enforcing that mortgage. Whether this mortgage is sustained as against the husband by way of estoppel or for any other reason, it is a valid mortgage, subjecting his real property to a lien for the amount due to him, and by the act of the wife in joining with her husband in the mortgage, her inchoate right of dower to that extent was extinguished. In Hinchliffe v. Shea (103 N. Y. 153) it was said: “ The joinder by a married woman with her husband in a deed or mortgage of his lands, does not operate as to her by way of passing an estate, but inures simply as a release to the grantee of the husband, of her future contingent right of dower in the granted or mortgaged premises, in aid of the title or interest conveyed by his deed or mortgage. Her release attends the title derived from the husband, and concludes her from afterward claiming dower in the premises as against the grantee or mortgagee, so long as there remains a subsisting title or interest, created" by his conveyance.” It was further held in that case that her act in joining in the conveyance becomes a nullity whenever the title or interest to which the renunciation is incident is itself defeated. . Now, that condition has not arisen in this ease. The mortgage of the husband had not itself been defeated, but upheld and enforced. Therefore, it seems to me that she *215is concluded from claiming dower in the premises as against the mortgagee so long as there remains a subsisting title or interest created by the mortgage, but even if Mr. Justice Laugh-lix’s opinion is correct, it seems to me clear that the plaintiff was entitled to be subrogated to the prior mortgage upon the premises, which was paid off by the money furnished by the plaintiff at the time the mortgage .in controversy was executed. It seems that the plaintiff paid the money which was secured by this mortgage in two checks. One was for $10,000 to the order of the mortgagor, and he indorsed that check over to the McCarthy estate in payment of the principal of their mortgage, which had been executed by the mortgagor and his wife. Plaintiff also furnished another check for $2,000, to the order of the mortgagor, which was indorsed by him, and of which $200 was paid to the McCarthy estate to pay the accrued interest on that mortgage. The plaintiff having been exonerated from any intention to make a usurious loan on the premises in question, it is difficult to see why he was not entitled to be subrogated to the interest of the McCarthy estate in the prior mortgage on the property to the extent to which his money was used to pay off that mortgage. In 37 Cyc. (at p. 381) it is said: “A person who, under such circumstances that he is entitled to subrogation, pays a debt of another secured by mortgage, is subrogated to the rights under the mortgage and can enforce the same for his own benefit. * * * In general, any person having a subsequent interest in the premises and not primarily liable for the mortgage debt, who pays off the mortgage, thereby becomes an equitable assignee of it and may keep the mortgage alive and enforce the hen for his own benefit.” And at page 462 it is said:. “But where an invalid or defective mortgage is given to secure an advancement of money made for the express purpose of paying off a prior encumbrance, the mortgagee in the defective mortgage will be subrogated to the lien of the encumbrance so discharged, in the absence of intervening encumbrances, and mere constructive notice of the invalidity based upon a presumption of knowledge of the law, or upon the recording acts, is not sufficient to prevent the right from attaching if the mortgagee did not have actual knowledge, and the failure of *216actual knowledge was not mala fides.” And at page 464: “And where one pays off an existing mortgage at the request of the mortgagor, in just expectation that he would have like security for his money, he thereby, under the doctrine of equitable assignment, becomes entitled to subrogation to the lien of the mortgage so paid off, even though the mortgage given to him was inoperative as against the owners of an equity, because of the pendency of a bill filed by them to enforce their equity and establish a trust in the premises.” It seems to me that the situation in this case justifies the application of this principle. Here the plaintiff, in perfect good faith, based upon the representation of the mortgagor’s agent that he would have a good mortgage for that amount, paid his money to the mortgagor, and the mortgagor thereupon used $10,200 of it to pay off a prior valid mortgage on the premises as to which the wife’s right of dower had been extinguished. It seems to me clear that under any circumstances the plaintiff would be entitled to be subrogated to the right of the mortgagee of the first mortgage and entitled to enforce that right as against the mortgagor and his wife. On the appeal of the plaintiff, therefore, I think the judgment should be modified by striking out the provision that the complaint be dismissed as to the defendant Julia A. Sotscheck and that the bond and mortgage be adjudged invalid and void for usury as against her; and the judgment should be further modified by directing the premises to be sold free from the dower interest of such defendant, and as so modified affirmed, with costs against the said Julia A. Sotscheck in favor of the plaintiff in this court and in the court below.
McLaughlin, Dowling and Hotchkiss, JJ., concurred.
Judgment modified as directed in opinion of Ingkaram, P. J., and as modified affirmed, with costs against defendant Julia A. Sotscheck in favor of the plaintiff in this court and in the court below. Order to be settled on notice.