Wilson v. White, 17 N.C. 29, 2 Dev. Eq. 29 (1831)

June 1831 · Supreme Court of North Carolina

17 N.C. 29, 2 Dev. Eq. 29

Charles Wilson v. Turner D. White et al.

Where executors having1 a power to sell lands, honestly made an arrangement with the widow of the testator to waive her right to dower, and sold with notice to the purchaser of the widow’s claim —held, that Hie latter was entitled to no relief, upon the widow’s interposing her claim.

The plaintiff alleged, that Thomas While died'seised of a tract 01 laud in Virginia, on which he resided that he appointed the defendants executors of his will, and directed them to allot fifty acres of land to bis widow, in lieu of dower ; that these fifty acres did not include the dwelling-house paid outhouses, and was of less value than the dower in the whole tract would have been that, under a power in the will, the executors advertised the residue of the land for sale ; but understanding that the widow intended to claim her dower, they had agreed to give her a horse and one, year’s provisions, and build her a house, upon condition of her abiding by the will; that upon her acceding to these terms, the land was exposed to public sale, subject to the life-estate of the widow in fifty acres only, and was bought by the plaintiff; that the widow, alleging that the defendants had not complied with their agreement, had recently sued out process for the assignment of her dower. The bill concluded with an averment, that by the laws of Virginia, the widow was entitled to dower, and prayed for an injunction against a judgment on the bond, given by the plaintiff to secure the purchase money.

The defendants denied all the equity of the bill, averring, that they had made no promise to the widow, to induce her not to dissent from the will — that she voluntarily avowed her determination to abide by it, and that all the defendants had done for her, proceeded from mo-lives of benevolence; and they alleged that the widow had been instigated by the plaintiff to dissent from the will, solely for the purpose of giving him some foundation for this suit. They also alleged, that the widow was present when the plaintiff purchased, and did not make known her claim : and upon this ground insisted, that the plaintiff was protected in equity against her dower. Testimony was taken which established the fact of the widow’s consent to the sale, and of some disagreement between her and the defendants, as to the 1 aider not complying with the previous stipulations — but there was no proof of a stipulation by the defendants, that the widow should not claim dower.

His Honor Judge Swain, at Caswell, on the last circuit, dissolved the injunction which had been granted, and dismissed the bill, and the plaintiff appealed.

No counsel appeared for either party in this court.

Henderson, Chief-Justice.

Giving to the testimony its greatest weight, it proves only that the widow agreed to forego her right to dower, and take the fifty acres of land devised to her in her husband’s will, in consideration of certain promises made to her by the executors, in regard to building her a house on the fifty acres, giving her a horse, some stock and some family supplies ; and that they have not fully performed their promises : and that in making these promises and in failing to fulfil them, no fraud was intended on the purchaser of the land, or any other person. I think that such a case affords no ground of relief to the purchaser. No assurance wras given that the land was free from the widow’s ■claim of dower. It was khown however that there was a widow, for she was present at the sale; and knowledge that there was a widow, was knowledge of her rights. The plaintiff was. therefore a purchaser with full notice. If indeed it had been proclaimed, in order to enhance the price, that the widow had consented to forego her claim to dower, then as those promises were the cause of such consent, they ought to have fulfilled them. But it appears, that nothing was said about the widow’s dower. The defendants sold, and the plaintiff bought, subject to that claim; and there being no fraud, there is no ground to rescind the contract.

Per Curiam. — .Decks® aeeibmee. •