Thomas v. Thomas, 32 N.C. 123, 10 Ired. 123 (1849)

Aug. 1849 · Supreme Court of North Carolina

32 N.C. 123, 10 Ired. 123

ESTHER THOMAS vs. JOHN THOMAS.

On a petition for dower, when it appeared that the deed, under which the widow’s husband claimed, had been delivered, but had not been registered at tho time of his death and could not since be found: Held, that the husband did not die seised, and the widow had no right to. recover her dower,, at least in a Court of law.

The cases of Morris v. Ford, 2 Dev. Eq. 418', and Tolar v. Tolar, 1 Dev. Eq. 45G, cited and approved.

Appeal from the Superior Court oí Law of Iredell County, at the Fall Term 1848, his Honor Judge Moore presiding.

The plaintiff filed her petition in Iredell County Court, setting forth, that she was the widow of John Thomas, Jun’r, who died intestate in 1845, leaving an infant daughter his only heir at law ; that the said John died, seized in fee of a tract of land described in the petition, and prayed that a writ of dower should issue to the sheriff of the said County, commanding him to summon a jury to set apart to her dower in the said land. The petition also prayed that copies of the petition' should be served on John Thomas, Sen’r, and upon the guardian of the infant heir at law. The defendant, John Thomas, Sen., pleaded that he was, at the time of the death of the husband of the petitioner, seized in fee in severalty in the premises described in the petition. On the trial of the issue, which was made up, it appeared that the defendant, John Thomas, was formerly the owner in fee of the premises. The plaintiff’s counsel offered in evidence a notice, which had been served upon the defendant, Thomas, notifying him to produce, on the trial of the suit, a deed, which, it was alleged, he had made to the husband of the petitioner; and, as the alleged deed was not produced, the petitioner’s counsel offered to prove that the defendant, Thomas, executed a deed in the life time of his son, the said John Thomas, Jun., by which the premises, described in the petition, were conveyed in fee to the said John Thomas, Jun; that the said deed was duly delivered, and remained in the possession of the bargainee during his life, and, after his death, the defendant Thomas obtained possession of it. It was admitted by the petitioner’s counsel that the deed had never been registered. This evidence was objected to, and the Judge ruled, that the evidence was inadmissible to prove a seisin in fee in the husband of the petitioner. The jury found a verdict in favor of the defendant, and judgment was rendered accordingly, from which judgment the plaintiff appealed.

Averytfor the plaintiff.

Boyden, for the defendant.

Nash, J.

We concur with his Honor in the opinion appealed from. The plaintiff filed her petition to procure an apportionment of dower in the land set forth in it. She states, that she is the widow of John Thomas, who was the son of the defendant, and that he died seized and possessed of the land described in the petition. The defendant filed a special plea, setting forth, that his son, John, was not, at the time of his death, seized and possessed of the land in controversy, but that he was. On the trial of the issue joined between the parties, the plaintiff offered to prove, after notice to the defendant to pro' duce it, that the defendant had made and executed to his son, John, then her husband, a deed of conveyance in fee simple for the land ; that it was duly delivered and remained in his possession up to the time of his death, when the defendant obtained possession of it and it has not been since seen. The case shows that the deed never was registered. This testimony was rejected. The proceeding in this case is at law, to establish a legal right. The testimony rejected was not competent to that purpose. The husband, John Thomas, never was seized and possessed of the land, but, at the time of his death, had only an incomplete legal title. Morris v. Ford, 2 Dev. Eq. 418. If a widow be entitled to dower in land, to which the title of her husband was, at the time of his ' death, in that state, she can not recover it at law, because, being incomplete at law, she cannot give legal evidence of his seisin. It may be, that she may have relief in Equity, as her husband would have had. Tolar v. Tolar. 1 Dev. Eq. 456. The Equity, in that case, would be, not in the nature of the right, but to have the benefit of the legal title, which has been lost by spoliation. The relief is, a reconveyance with covenants against intermediate incumbrances, or acts of the party making it. Tate v. Tate, 1 Dev. & Bat. Eq. 23.

Per Curiam

Judgment affirmed.