Love v. . McClure

Davis, J., (after stating the case). In Kirby v. Dalton, 1 Dev. Eq., 195, the widow claimed dower in land purchased but which had not been paid for by her husband, and the title to which had been retained by the vendor as security for the payment of the purchase money. It was there held that the widow was not entitled to dower in her husband’s equities, and that even if she was so entitled (as she now is by statute since enacted) her right would be subordinate to the vendor’s right to have the purchase money paid, but in the case before us it has been found as a fact by the jury that all the purchase money was paid in the lifetime of the husband. If he were living, having paid for the land, the plaintiff could not recover the possession of him; having died, the widow’s possession was a continuation of his, so that neither could J. R. Love, if living, or his heirs at law, he being dead, recover the possession of her. The defence of the widow against the vendor, who had been paid in full, would be the same as that of the husband, if suit had been brought against him, and as no recovery could have been had against him, so none can be had against her. Therightof the widow to dower is a legal right, and is prior to that of the heir. Campbell v. Murphy, 2 Jones Eq., 357. She has the right to have any charge or incumbrance upon the land removed by an application of the personal assets to that purpose. Kluntz v. Kluntz, 5 Jones Eq., 80; Carson v. Cooper, 63 N. C., 386. Her possession is rightful. It is a *295 continuation oi that of the husband.’ It is not adverse to that of the heir. Page v. Branch, 97 N. C., 97; Grandy v. Bailey, 13 Ired., 221; Buffalo v. Newsom, 1 Dev., 208; Williams v. Bennett, 4 Ired., 122. When the vendee has paid the purchase money for land and died, the widow may institute an action (formerly a bill in equity) against the heirs of the deceased husband and the vendor, or his heirs, if he be dead, to compel a conveyance of the land and assignment of dower to herself. Smith v. Smith, Winst. Eq., (Hinsdale’s Ed.) 581. If being out of possession, she could bring her action to compel the assignment of dower, it’ must follow that being in possession, the equitable title being out of the vendor, he (or in this case his heirs) cannot recover of her. In Norwood v. Morrow et al., 4 Dev. & Bat., 442, it was held that a widow was not bound to await the action of the heirs at law of her deceased husband to regain the possession of land held adversely under a deed from the husband which was void because of an illegal consideration. She could file her petition against the person in possession under the void deed and the heirs of her deceased husband. In that case it is said by Ruffin, C. J., that it is “not true that the wife gets her dower necessarily from the heir. She claims paramount to the heir. * * * In point of title, her estate does not rise or take effect out of the ownership of the heir or other person making the assignment, but is considered a continuation of that of the husband. * * * She does not require the assistance of the heir, but brings her action against any person who has the freehold, whether that be the heir or any other. * * * That this must be so, is evident when it is recollected that at common law the wife was entitled to dower (as she is now since the statute restoring common law right of dower,) in all the land of which her husband was seized at the time of coverture, and that his conveyance did not defeat the right Consequently she *296 was entitled when the heir had nothing in the land, and therefore she was obliged to assert the right for herself.” If, in this case, the widow were out of possession, and bringing her action against the plaintiff, they would be concluded in equity from setting up their mere legal title against her right to dower; and if so, it must follow, that being equitably in possession, she cannot be required to surrender that possession to persons who have no equitable right to it, and who, if in possession, could be declared trustees as to the legal title, and made to surrender the possession. Nothing appears in the record except the entry made at July Special Term, 1885, to show that the heirs of William McClure were made parties, or that any answer or other action in the cause was made, or had by or against them. Whether the order to amend the pleadings as shown by that entry has not the legal effect of an actual amendment and does not make them parties, as the intimation in Walton v. Pearson, 85 N. C., 34, would seem to warrant, is not presented by the appeal which is only taken by the widow, but however that may be, for the purpose of her defence, the heirs of her husband are not necessary parties, and we are of the opinion that as against her, she is entitled to the judgment, that the plaintiffs take nothing, &c., and for her costs, and for the refusal to grant the motion for this judgment, there is error. Error. PLAINTIFF’S APPEAL. In addition to the facts stated on the defendant’s appeal, the following is necessary to a proper understanding of the question presented on this appeal: “Upon the trial by a jury on the question of the actual payment of the purchase money by William McClure, evidence was offered tending to show actual payment by the defendant. In reply the plaintiffs offered evidence tending *297 to show that the purchase money had not been paid, and offered to show by a witness the declarations of McClure, a son and heir of William McClure, and son of defendant, that the purchase money had not been paid. The defendant objected, and the objection was sustained, and thereupon the plaintiff excepted. There was a vedict finding that the purchase money had been paid. The plaintiff moved for a new trial for the alleged error in excluding their evidence, and for that' the verdict was contrary to the weight of the evidence, and these motions were refused, and the plaintiff appealed.” Aside from the vagueness of the declarations of McClure, offered to prove a negative, upon the idea, we suppose, that being a son and heir of William McClure, the declarations were against his interests, we are at a loss to see how any declarations of his as to what had not been done by William McClure or any one else can be evidence against Nancy L. McClure. He might have him introduced and examined as a witness and if he knew any fads tending to show that the purchase money had not been paid, his testimony would have been competent, but his dedarations could not be evidence against her. It does not appear where, or under what circumstances the alleged declarations were made. They were in no way connected with the defendant, who claims “under the law,” as was said in Pinner v. Pinner et al., Busbee, 475, in which one of the defendants and heir of William Pinner sought to defeat the dower of his widow, by asserting title under a deed from her deceased father alleged by the widow to have been made a short time before his death, with the intent to defraud her of her dower, and therefore void, and the declaration of the deceased husband, made about a month before his death, to the effect that he had made the deed to his daughter “for the land many years ago,” was held to be incompetent. *298 If the declaration of the deceased husband, in whom the seizin was alleged by the widow to have been at the time of his death were not competent as against her, certainly the declarations of the heir, not of the existence of some fact, but of the non-existence of some alleged fact, could not be competent. There was no error in excluding the proposed declaration. This Court cannot consider the exception to the refusal to grant a new trial because the verdict was contrary to the rights of the widow. As has been often held, that was a matter of discretion from which there is no appeal. Affirmed.