Smart v. Haring

When this action was commenced the plaintiff McChesney was an infant under the age of twenty-one yearn. No guardian was Appointed. Before the trial he had arrived at his majority. I *278think that the omission to procure the appointment of a guardian for the infant plaintiff was an irregularity simply. It did not affect the jurisdiction of the court. (Wolford v. Oakley, 43 How., 119; Croghan v. Livingston, 17 N. Y., 221; Rogers v. McLean, 31 How. Pr., 283; McMurrag v. McMurray, 66 N. Y., 177.) By pleading to the merits, this irregularity I think was waived, and the plaintiff must be regarded as rectus in curia. (Parks v. Parks, 19 Abb., 161; Graham v. Pinckney, 7 Robt., 149.) But the precise question involved here was settled in Rutter v. Puckhofer (9 Bos., 638). Where the court held “ that when the plaintiff attained his majority, the necessity for. as well as the office of, a guardian cease.”

But I am inclined to think that the learned justice before whom this cause was tried at the Circuit erred in treating the conveyance to the wife as a voluntary conveyance, without consideration. The cases which he cites in his opinion are all cases of voluntary conveyance, which means a conveyance without any valuable consideration. (Babcock v. Eckler, 24 N. Y., 623.) It is clear in such cases that if the grantor’s intention was fraudulent it makes no difference that the grantees knew nothing of such intent. But a different rule prevails whore the conveyance is given for value. In the latter case the fraudulent intent must be brought home to the knowledge of the grantee. (Newman v. Cordell, 43 Barb., 448; Jaeger v. Kelley, 52 N. Y., 274; Rull v. Philips, 48 id., 125, 130; Holmes v. Clark, 48 Barb., 237.)

The inchoate right of dower of the defendant, Anna M. Haring, was a valuable and subsisting interest, and one which would give her a.right of.action if necessary to preserve and protect. (Simar v. Canaday, 53 N. Y., 298; Mills v. Van Voorhies, 20 id., 412; Douglas v. Douglas, 18 S. C. N. Y. [11 Hun], 406.)

In the case of Doty v. Baker (18 S. C. N. Y. [11 Hun], 222), it was held that a release by a wife of an inchoate light of dower in the lands of her husband, is a good consideration for his-paying or promising to pay a part of the purchase money, except as to existing creditors, and as to them she is entitled to retain the actual value of such inchoate right as ascertained by the rule laid down in the old case of Jackson v. Edwards (7 Paige, 408). In this case Mrs. Haring received her deed on the 31«t of July, *2791874, in pursuance of an agreement made January 2, 1874. That agreement was that if she would sign a $4,000 mortgage she should receive this deed. But when she received this conveyance the large proportion of the husband's indebtedness to plaintiffs had accrued, according to the findings of the justice before whom this cause was tried. It seems to me that following the case, of Doty v. Baker, above referred to, and which seems to be a well considered opinion, that the judgment appealed from should be modified so as to protect the inchoate dower interest of Mrs. Haring in the $4,000 mortgage which she was induced to sign in consideration of this conveyance to her. That is after the payment of the mortgages her inchoate dower interest in the sum of $4,000 must first be secured to her, together with her inchoate dower interest in the entire surplus after paying said mortgages as now provided by the judgment, before the plaintiff shall be allowed any sum whatever of the proceeds arising from a sale of the premises in question. In a word, before the plaintiff's claim can be paid Mrs. Haring must have allowed to her, not only all that the judgment now provides for her, but whatever her inchoate dower interest would be, in an amount equal to the amount due on the $4,000 mortgage, must be secured to her. This to be determined by the rule as laid down in Jackson v. Edwards (7 Paige, 408).

As thus modified the judgment is affirmed, but without costs to either party. J udgment to be settled by me.

Judgment modified so as to allow Mrs. Haring also the value of her inchoate right of dower, and as modified affirmed without costs to either party. Judgment to be settled by Osbobn, J.