— It is stated that Sterling Fancy, the owner of the lots in question, died about January, 1815, leaving his widow and children in possession thereof; *81that judgment was obtained against his administrator, from which 'process issued against the lots in the bands of the heirs, and that the Complainant became the purchaser. That the lots were sold for taxes about the 8th of November, in the year 1815 — that the deed for them was made by consent of the purchaser to the Defendant Elizabeth, and that the widow’s dower was laid off between the Courts which sat in August and November.
It must be admitted that all the right the heirs at law of Sterling Fancy had in the lots in dispute, was acquired by the Plaintiff when lie became the purchaser of them ; it is therefore necessary to ascertain what that right was. Upon the death of Sterling Fancy, the title to the lots descended to his heirs at law, who, together with the widow, were in possession of them: they descended however to the heirs at law, subject to the widow’s right of dower, but until dower was allotted to her the title to them was in tiie heirs. By the act of 1803, made for the government of the city of Raleigh, it was required that all taxable property should be given in on or before the first of April. By the same act, it is declared “ that every tenant occupying a house or houses, lot or lots, shall be liable to pay the tax laid upon such house, &c, and on failure of the proprietor of any lot to pay the annual tax thereon, &c. on or before the first of August in every year, the commissioners of the city are authorised to sell the same, &c.” The act of 1806, also made for the government of the city ot Raleigh, declares “ that in all cases, where the owner of any lot or the occupants thereof, shall fail to pay the taxes, so much of such lot as shall be sufficient to pay the taxes, shall be sold.”
I think but little doubt can be entertained, that the heirs at law' of Sterling Fancy were the tenants and proprietors of the lots, within the words and meaning of both these acts, It was their duty then, to give in *82their lots as taxable property, on the first of April, and to pay the taxes before the 1st of August in the same year. This however was not done, and the lots were afterwards sold, before the purchase made by the Complainant. At the time of his purchase, the heirs at law had no right to the property; it had been lost by the sale for the taxes. We are next to ascertain what remedy the Complainant has against the widow.
At common law the widow was entitled to her quarantine, and in the mean time to be supported by the heir, and before the expiration of her quarantine it was the duty of the heir to put her in possession of her dower. Our law makes provision for the widow’s support for one year, and points out the mode by which she shall be put in possession of her dower. By these laws, the right of the heirs and the widow are not altered ; perhaps the time of her quarantine is thereby enlarged. Before the widow has her dower allotted to her she is amero occupant, she has no right or title to the land, or to one part of it in preference to another: — she has a right to dower in one-third part of it, but what third part that may be, depends upon the allotment of it, and when that is made, she claims, and is in under her husband. In the present case, the widow was not bound to give in the land for taxes,, nor was she bound to give in one-third of it. It is true she was an occupant, but the heirs at law were occupants also, and the legal title was in (hem. 'When the land was sold for taxes, that sale divested the right of the heirs, and her claim to dower was swept off with it. The purchaser for the taxes had a preferable right to either of them, and for this the widow was notblameablo; because if she was not bound either to enter the land for taxes, or to pay them, of course for not paying them she was in no fault — if siie was in no fault, it is difficult to see how she committed one in taking a deed from the oflier r who sold them for the taxes, by the consent of Cooke, *83who bid them off. It is then upon that right she stands, and her dower right forms no part of it. It is not material when the Complainant purchased, whether he had notice of the sale to Cooke or not; he does not deny it, and she states in her answer, that he had notice.— The bill prays that she may be held as a trustee for the Complainant, and compelled to convey her title to him, because she fraudulently acquired that title. This I think is not established either by the law or the fact of the case. It will be understood that no opinion is given on the validity of her title,* whatever it is, I am of opinion she should not be deprived of it by the decree of this Court. Neither is it intended to give any opinion on the Plaintiff’s title at law, in case that of the Defendant was removed out of his way.
I am of opinion the bill should be dismissed.
Tayxor, Chief-Justice, concurred in opinion with Judge Ham.