Ruffin v. . Cox

Settle, J. By reference to the 7th and 9th items of the will of Henry J. G. Euffin, it will be seen that he has charged the land devised to his son Ethelred with the payment of the sum of $1,000, in favor of his son George W., in terms too plain to admit of a doubt. His language leaves no room for construction, but charges the land devised to Etheldred with $1,000, which sum the said Ethelred is to pay to his brother George W"., within two years after the death of the testator; and he repeats, “ this said sum. of $1,000 is to be charged on the share of his- land, herein devised to him the said Etheldred Euffin, until it is paid.” Then by reference to the will of the said George W. Euffin, it will appear equally as clear that this charge on the land of his brother Etheldred, passed by said will to his mother, Mary Euffin, the plaintiff, and that she is entitled to sue for and recover the same. But it was insisted *256 upon the argument that, as the defendant was a purchaser for full value and without notice, the plaintiff cannot follow the lands with this charge into his possession. The decisions of this Court establish the doctrine that charges upon land for equality of partition, follow the land into the hands of all persons to whom it may come; and they are held to be effected by constructive notice. Wynn v. Tunstall, Dev. Eq. 28; Jones v. Sherrard, 2 Dev. & Bat. Eq. 179; Sutton v. Edwards, 5 Ired. Eq. 425; Christmas v. Mitchell, 8 Ired. Eq. 536; As ton v. Galloway, 3 Ired. Eq. 125. And the same authorities hold that there is no bar, by statute of limitations or presumptions, in such cases. But the defendant says that the widow of Etheldred Ruffin is a necessary party and that if he is to pay anthing she should be made to contribute out of her dower the rateable part of such recovery. The plaintiff may look to the land alone and need not trouble herself about other parties or other securities. But the law favors dower, and this Court has held, in Garoon v. Cooper, 63 N. C. Rep. 386, that the widow is entitled to have dower assigned out of the whole tract, and cannot be called upon until it is ascertained that the remaining two-thirds and the reversion in the one-third covered by her dower, is insufficient to pay off the incumbrance of the purchase money. But the case of Smith v. Gilmer, 64 N. C. Rep., 546, is still more in point; there the testator had devised land to his son "Wm. R. Smith, charged with the payment of $1,500 to W. M. Gilmer, his grand-son. Upon the death of the testator Wm. R. Smith took the land, cum onere, and upon the death of the said Wm. R. Smith his widow claimed dower, and this Court held that she took dower as her husband took the fee, cum onere, but was nevertheless entitled to have her dower exonerated in the manner pointed out in Caroon v. Cooper, supra. Let it be certified Shat there is no error, to the end that the Superior Court may proceed according to law. Pee CueiaM. Judgment accordingly.