Opinion
April 23, 1909.
Otto Greenberger [ Barnett E. Kopelman with him on the brief], for the appellants.
Nathan Ballin, for the respondent.
This action was brought for the specific performance of a contract of purchase and sale of real property, or in the alternative for damages. On the trial, the plaintiff was permitted to amend the complaint so as to ask that he be decreed to have an equitable lien for the amount paid pursuant to the contract, and for the foreclosure thereof. The action is brought against the vendor's widow, both individually and as administratrix of his estate, and his heirs at law, infants. The widow was not a party to the contract. The judgment directs the foreclosure of the plaintiff's lien and the sale of the premises to satisfy it, and a judgment against all the defendants individually for any deficiency.
There can be no doubt that the plaintiff was entitled to an equitable lien for the amount paid on the contract ( Elterman v. Hyman, 192 N.Y. 113), but as the vendor's wife did not join in the contract, her inchoate right of dower was not affected by it. She never agreed to release that right. She could not have been compelled to join her husband in a deed, and she cannot be deprived of a right consummate, which, when inchoate, she could not have been compelled to release. While the vendee has an equitable lien for the amount paid on the contract, that lien cannot affect superior rights existing at the time the contract was made. Unless the widow's dower is admeasured and satisfied out of the proceeds of the sale, the premises must be sold subject to it. It was also error to direct a personal judgment against the widow and the heirs at law for any deficiency. The respondent is unable to assign any reason for such a judgment and manifestly none exists. The plaintiff must look to his vendor's estate for the satisfaction of any deficiency judgment.
The judgment should be modified accordingly, and as thus modified affirmed, without costs.
HIRSCHBERG, P.J., GAYNOR, BURR and RICH, JJ., concurred.
Judgment modified in accordance with opinion, and as modified affirmed, without costs. Settle order before MILLER, J.