Opinion
November Term, 1897.
Hastings Schoolcraft and Alonzo P. Strong, for the appellant.
Ed. J. Perkins and H.V. Borst, for the respondent.
The fact alone that a wife joins with her husband in the execution of a mortgage upon the husband's real estate does not impair her right to priority as the holder of a prior mortgage. ( Power v. Lester, 23 N.Y. 527; Gillig v. Maass, 28 id. 191; Kingman v. Dunspaugh, 19 App. Div. 549.) Suits, therefore, was not entitled to priority because his mortgage was executed by this plaintiff.
As to his claims that she made false representations to him at the time he took his mortgage, and that she was a borrower and interested in the $300, for which such mortgage was given, he has utterly failed to prove either of them. His own evidence shows that the husband alone was the borrower, and that he alone received the money loaned. It also shows that he was the only one who made the representations, and that it was upon his statements that Suits relied. There is not a fact in the case showing that the plaintiff was in any way benefited by the money which Suits loaned, or that she took any part whatever in borrowing the same. None of the equities which existed in the case of Kingman v. Dunspaugh ( supra), can be found in this case, and the decision there is no authority whatever for the decision here.
The judgment appealed from must be reversed and a new trial granted, costs to abide the event.
All concurred.
Judgment reversed and a new trial granted, costs to abide the event.