Brown v. Morisey, 126 N.C. 772 (1900)

June 5, 1900 · Supreme Court of North Carolina

126 N.C. 772

DICEY A. BROWN v. D. G. MORISEY.

(Decided June 5, 1900.)

Dower — Nature—Statutory and Common Law Right— Statute of Limitations.

1. The widow claims her dower under the statute, not under her husband, often against him.

2. She has no estate in the land until assignment of her dower, and the statute of limitations can not be pleaded against her.

3. Her claim is in the nature of “a writ of right,” is favored by the law, and cannot be lost or forfeited, except for causes prescribed by the statute, or the common law.

Petition to Rehear cas-e decided at February Term, 1899, reported in 124 N. 0., 292.

Petition allowed.

Faircloth, O. J., writes the opinion of the Court.

Fubches and Olaric, JJ., write dissenting opinions.

Messrs. Stevens & Beasley, for petitioner.

Messrs. Allen & Dortch, contra.

Faircloth, C. J.

This case was decided in favor of the defendant at February Term, 1899, and is reported in 124 N. C., 292. It was rebeard ait February Team, 1900. After reargument and further consideration, the Court is of the opinion that the plaintiff is entitled to have dower assigned to her out of the land described in the complaint, and the first opinion is overruled. The reasoning and ground of our present opinion, will be found in the dissenting opinion, as reported in 124 N. C., at page 297, where the authorities are cited, and it seems that it is unnecessary to repeat them here.

In addition to those, we refer to Pinner v. Pinner, 44 N. C., 475; Frost v. Etheridge, 12 N. C., 30. These fully recognize the principle of this opinion, with some excellent reasoning by TayuoR, C. J.

The plaintiff, being entitled to dower, is also entitled to damages from her' demand for dower equal to one-third in value of the rents and profits of the land. Spencer v. Weston, 18 N. C., 216. These will be adjusted by the court below, if the parties do not agree to some arrangement among themselves.

This will be certified to the court below to the end that the court may proceed according to this opinion.

Error.

Furches, J.,

dissenting. I dissent to that part of the opinion of the Court which adopts the dissenting opinion when the case was here before, and I adopt the opinion- of the Court then filed, as my dissenting opinion to that part- of the opinion filed at this term. Brown v. Morisey, 124 N. C., 292.

Clark, J.,

dissenting. I concur in the dissenting opinion of Mr. Justice Eurches. There is no scintilla of évidence that the defendant claims under the heirs-at-law of the husband, and what would be the plaintiff’s right to dower as against them or their assignee is not before us. There is no evidence how defendant entered, whether under deed from the husband or without (see statement of facts, 124 N. C., 292), but probably under a deed possibly since lost, as the widow living in same county has not stirred till now. All ■that appears is that plaintiff’s husband had a deed to the land in 1855; that he and his wife went to Wilmington in 1856; that in a few days she returned to the county (Duplin) where the land lies, and soon thereafter the defendant took possession, and has been in exclusive possession, cultivating and using it as his own, ever since — over forty years. Nothing else appearing, the defendant’s title is good against the world. The fact that it is further shown that the husband went south and died intestate, prior to 1861, leaving no children, can not affect defendant’s title. The statute, which began running against the husband in his lifetime, was not suspended at his death, even as to minor heirs, and of course not as to' his widow. She can only recover dower by showing that her husband, if living, would be entitled to recover the land in which she claims dower. Otherwise she would be taking dower in defendant’s land, not in her husband’s. If dower had been allotted to plaintiff when disseized, she would be barred in seven or twenty years like anyone else, and she is not entitled (even in that aspect) to longer time under our statute law because she neglected to have dower allotted.