#### Annie Helena Mead et al., Plaintiffs, *v.*Agnes Mead et al., Defendants.

(Supreme Court, New York Special Term,

May, 1899.)

1. Mortgage — Failure of wife of mortgagor to execute purchase money mortgage.

Where children, desirous only of affording an income to their father whom they believe to be unmarried, convey premises to him to that end and at the same time take back from him a mortgage given to secure their rights in the premises, the failure of his wife, by a valid common-law marriage, to join in the mortgage gives her no. rights in the premises which she can assert, after his death, to the detriment of the children.

*2.*Written instrument — Extinguishment of prior oral agreements.

All prior oral agreements aré deemed to have been merged in & written instrument.

Action to foreclose a mortgage.

E. S. Peck, for plaintiffs.

Gratz ¡Nathan'arid Geo. ¡F. Mertens, for defendants.

Russell, J.

In 1891, Lawrence Mead,-the father of these, plaintiffs and of Eoger A. Mead, then being a widower, contracted! a valid common-law marriage with Mrs. Agnes Mead — one on. which she is entitled to stand, and by which the children that sheafterwards had were legitimate. The subsequent ceremonial marriage by a priest was simply a ratification of the original marriage, and in no manner impaired the validity of the original agreement between the parties. Agnes Mead was the lawful wife of Lawrence Mead at the time of the transaction of December, 1892. In that month, there being a settlement of the estate of the grandmother through whom these three children took, I suppose, by virtue of representation from their deceased mother, the daughter of the grandmother, the evidence being silent upon that subject — through the will of the grandmother, as is conceded — and a settle-merit of that estate being had then, the father having no business, except such as had been necessary to look after the estate of the-*460.grandmother, it occurred to the children that some provision should be made for the support of the father, so that he might have means for the wants, which were small, which, he would have in the. future. His age does not appear in the case. The father had been trustee of that estate, or one of the trustees, and, at all events, acted as such, so that he not only stood in the position of a father to the children during the' period of their minority and later, .but was’ also active trustee for them in the management of their Interests in that estate. As a matter of course, the duties were imposed upon him which follow such a confidential relation. He -could do no act to the detriment of his wards or those who occupied the position of *cestuis que trustent*in regard to him, but had a tight, if the transaction was fair, to accept any beneficial arrangement which -they might make. The arrangement was made by Tvhich he was to be deeded Ho. 272 West Thirty-eighth street, "With the understanding that the property was to furnish him an income necessary to his wants, and, as the evidence discloses, not ¡giving .to him the entire actual beneficial control of the entire rights, but such as.were essential to his needs, although he actually received the payments of the rents until May or July, 1897, or a little later. ■ By that conveyance which was then made, these two daughters, who had been given the one-third interest belonging to Roger, their brother, for- the purpose of carrying out this arrangement, in which- his wife joined, surrendered apparently the entire title to that property. It would have been a very improvident and improper arrangement if no security had been taken back. Discussion was had as to the various forms for securing them against all possible contingencies which might militate against their ultimate resumption of the property. They sought the advice of Mr. Arrowsmith and his managing clerk, Mr. Dunn. Accordingly, an arrangement was made by which a mortgage was executed as the instrument securing back .to those two sisters and daughters their ¡rights in that property beyond any question or power of attack. It had been talked, prior to the selection of the proper form of instrument, that the daughters were to have the power to- recall the ^act of giving this house to their father, but all of the preliminary "talks were merged in the agreement which was made by which The mortgage was taken as the definite security for their protection. "That instrument was either a valid instrument, or it was an invalid instrument. I regard it ás a valid instrument, and one which the "mortgagor could-not repudiate after he had received the benefit *461of the transaction by the deed, and the receipts of the proceeds from the property in after years. Being a valid instrument, all of the talk was merged in the execution of the papers, and all of the conversation had in regard to it is not in any manner antagonistic to the paper itself, as the final execution or consummation of the transaction between the parties. It was .essentially a purchase-money mortgage. It was a mortgage given back by the purchaser, the grantee of the premises, to the grantor, to secure an interest which the grantee was to pay. It was evidently regarded as a purchase-money mortgage. .If Lawrence Mead was married at the time, and he knew that he was married, it was his manifest duty, in order to avoid a charge of fraud, to disclose the fact of his marriage, unless it made no material difference whether he was married or-not. If he knew it was a purchase-money mortgage, then he knew that his wife. did not' have to join in the execution of the mortgage; in that view he is free from the charge of fraud, but that fact establishes the validity of the mortgage as against Mrs. Mead. Being a purchase-money mortgage, Mrs. Mead’s rights cannot fasten upon property except subject to the mortgage itself. Viewing the transaction, the deed and mortgage taken together, there was conveyed to him only the *residuum*of the property after the ‘ mortgage was carved out of it. The other defense that a collateral agreement was made that the mortgage was not to be foreclosed, or enforced until the death of Lawrence Mead, is substantially disposed of by the considerations which I have alluded to; and the agreement being an oral agreement, the conversation was merged in the execution of the papers. But there is an additional consideration that Mrs. Mead never had any interest in these premises except subject to the mortgage itself. A wife has an inchoate right to dower which only gives her a right to the use of one-third of the real estate of her husband after his death if she survives him. The agreement that' defendant expressly sought to prove was that the mortgage was not to be enforced until after the death of Lawrence Mead. If proven, then it would be proven that the very instant of time at which the breath of Lawrence Mead passed away, and Mrs. Mead became entitled, as, his wife, to the widow’s right, that very instant that mortgage was in force. So that the accruing of her rights would be in fact coeval with the accruing of the rights of the daughters to foreclose the mortgage according to the agree- ■ ment. which defendant' has tried to prove. I think the claim of the daughters is superior to the widow’s dower. There is no an*462swer making any issue on the behalf of the' infants, but merely the general guardian *ad litem’s*answer, and therefore no issue is raised in this case on behalf of those who succeeded to the title of Lawrence Mead. But if there was any such issue, and if the court finds it necessary to guard the interests of the infants, the same considerations appertain to show that the infants received no title to those premises except subject to the mortgage in question. Judg-toent for the plaintiffs for the foreclosure, with costs.

Judgment for plaintiffs, with costs.