Pridgen v. . Pridgen

Varser, J. The plaintiff’s motion for judgment upon the answer is, in effect, a demurrer to the answer, and can only prevail when the matters pleaded constitute an admission of plaintiff’s cause of action or are insufficient as a defense or constitute new matter insufficient in law to defeat plaintiff’s claim. Alston v. Hill, 165 N. C., 255, 258; Churchwell v. Trust Co., 181 N. C., 21. Under C. S., 535, we construe the defendants’ answer liberally, with a view to substantiate justice between the parties. This means that every reasonable intendment must be taken in favor of the pleader, and if the answer contains facts sufficient to constitute a defense, it must be sustained. Hartsfield v. Bryan, 177 *105 N. C., 166; Parker v. Parker, 176 N. C., 198; Muse v. Motor Co., 175 N. C., 466; Wyatt v. R. R., 156 N. C., 307; Brewer v. Wynne, 154 N. C., 467; Ludwick v. Penny, 158 N. C., 104; Stokes v. Taylor, 104 N. C., 394; Gregory v. Pinnix, 158 N. C., 147; R. R. v. Main, 132 N. C., 445; Phifer v. Giles, 159 N. C., 142; McNinch v. Trust Co., 183 N. C., 33, 41. The common-law rule requiring every pleading to be construed against tbe pleader bas been materially modified by C. S., 535. Sexton v. Farrington, 185 N. C., 339. Therefore, as against a demurrer, a pleading-will be upheld if any part presents facts sufficient to constitute a cause of action or defense, or if facts sufficient for that purpose can be gathered from it under a liberal, yet reasonable, construction of its terms. It will not be overthrown unless it is wholly insufficient. Sexton v. Farrington, supra; Blackmore v. Winders, 144 N. C., 212; Bank v. Duffy, 156 N. C., 83; Eddleman v. Lentz, 158 N. C., 65; Hendrix v. R. R., 162 N. C., 9; Foy v. Foy, 188 N. C., 518; Churchwell v. Trust Co., supra. Viewing the defendants’ answer in the light of this settled rule of construction, we are constrained to hold that the answer sets up a trust between J. Henry Pridgen and the defendants who are the children of his first marriage, which attached to the lands in controversy prior to the marriage of the plaintiff and J. Henry Pridgen, on account of which J. Henry Pridgen was not beneficially seized during plaintiffs’ coverture of such an interest in the lands in controversy as was purchased from the profits arising from the labors of these defendants after they became sui juris. Dower is now, and has been since the -act of 2 March, 1867, the legal right of a widow whose husband dies intestate, or when she dissents from his will, to have alloted to her upon the death of her husband one-third in value of all the lands, tenements, and hereditaments (including both legal and equitable estates) whereof her husband was beneficially seized during the coverture. C. S., 4100; Allen v. Saunders, 186 N. C., 349; Thompson v. Thompson, 46 N. C., 430; Chemical Co. v. Walston, 187 N. C., 817; McGehee v. McGehee, 189 N. C., 558; Mordecai’s Law Lectures, 516, 519; 9 R. C. L., 561; 2 Blackstone, 131; Pollard v. Slaughter, 92 N. C., 72. A requisite of seizin is that it must be beneficial and not a mere' naked seizin for the benefit of others. Hendren v. Hendren, 153 N. C., 505; Alexander v. Cunningham, 27 N. C., 430; Thompson v. Crump, 138 N. C., 32; Gilmore v. Sellars, 145 N. C., 283; Waller v. Waller, 74 Grattan’s Reports (Va.), 83; McAuley v. Grimes, 15 Gill & Johnson (Md.), 318, 324; Stanwood v. Dunning, 14 Me., 290; Edmondson v. Welsh, 27 Ala., 578; Redding v. Vogt, 140 N. C., 562; 9 R. C. L., 575. sec. 16. *106 This seizin contemplates and requires that the husband’s seizin, whether in law or in deed, must be of an estate of inheritance. The test is whether any issue which she might have had could, by any possibility, inherit the land. McGehee. v. McGehee, supra; 2 Blackstone, 131; Pollard v. Slaughter, supra; Mordecai’s Law Lectures, 518. It cannot be urged that the widow occupies the position in equity of a purchaser for value without notice of the defendants’ equity to establish the trust. She is neither a creditor nor purchaser for value, although marriage is a valuable consideration in many relations. Dower does not arise from a contract of marriage, although marriage is a necessary precedent fact upon which the claim is asserted. There is no contract between husband and wife for either dower or curtesy. The law gives this right in respect to the property of the other to encourage matrimony. Norwood v. Marrow, 20 N. C., 578; Haire v. Haire, 141 N. C., 88. As stated in this latter case, the widow must rest her claim solely upon the beneficial seizin of her husband. An unregistered deed delivered prior to the marriage defeats dower because it defeats seizin. Haire v. Haire, supra; Blood v. Blood, 23 Pick. (40 Mass.), 85; Richardson v. Scofield, 45 Me., 389. A trust estate in favor of the defendants, in which J. Henry Pridgen was the beneficial owner of an estate for his life only, is not sufficient to support the plaintiff’s claim for dower. Hendren v. Hendren, supra. The plaintiff suggested that the court below treated Vance v. Vance, 118 N. C., 869, as a controlling authority in the case at bar. The difference, upon a close scrutiny, is vital. In the Vance case the court found the facts by consent of the parties, and failed to find sufficient facts to create a trust in favor of the defendants. The trust, as alleged in the answer, is expressly recognized, and the method of its creation is set forth in Wood v. Cherry, 73 N. C., 110, and it comes clearly in the definition of the first mode of creation of a trust, to wit: “By transmutation of the legal estate, when a simple declaration will raise the use or trust.” This is the settled law in this jurisdiction. Jones v. Jones, 164 N. C., 323; Ballard v. Boyette, 171 N. C., 26; Brogden v. Gibson, 165 N. C., 21; Lefkowitz v. Silver, 182 N. C., 344; Bank v. Scott, 184 N. C., 316; Anderson v. Harrington, 163 N. C., 142; Allen v. Gooding, 173 N. C., 95; Edgerton v. Jones, 102 N. C., 278; Herring v. Sutton, 129 N. C., 109; Avery v. Stewart, 136 N. C., 435; Shields v. Whitaker, 82 N. C., 519; Pittman v. Pittman, 107 N. C., 164; Jones v. Emory, 115 N. C., 165; Cobb v. Edwards, 117 N. C., 246; Ramsey v. Ramsey, 123 N. C., 688; Russell v. Wade, 146 N. C., 121. The trust could only arise when proceeds of, or the profits from, their labor arose after these defendants became sui juris, for during *107 their minority their earnings were the property of J. Henry Pridgen, the father, and could not support the trust agreement. There is no implied promise to pay on the part of the father when the children remain with him after majority, and they must show in this ease, as alleged by them, an express agreement to use their labor for them, and from it to purchase the land in trust for them. Musgrove v. Kornegay, 52 N. C., 71, 74; Dodson v. McAdams, 96 N. C., 149; Grant v. Grant, 109 N. C., 710, 713; Daniels v. R. R., 171 N. C., 23. The deed of 1913, as appears of record, does not contemplate ex vi terminorum a present vesting of the estate in the defendants,. and expresses the continuance of the estate in the father. It may be that its effect was not understood by either the grantor or the grantees, but it is insufficient, though delivered prior to the second marriage, to bar dower. The 1921 deed of itself is of no effect against the plaintiff, and the defendants’ only defense alleged is the trust. The parties must be left to try out the issue as to the alleged trust in the modes provided by law. McGee v. McGee, 26 N. C., 105. Dower has long been a favorite of the law, ranking with life and liberty (Bacon Uses, p. 37), and showing a firm establishment in the Year Books, and probably originating from a Danish custom, “since,” as Blackstone recalls, “according to historians of that country, dower was introduced into Denmark by Swein, the father of Canute, out of gratitude to the Danish ladies who sold all their jewels to rahsom him when taken prisoner by the Yandals. However' this be, the reason which our law gives for adopting it is a very plain and sensible one: for the sustenance of the wife and the rearing and education of the younger children.” Since these early times the right of dower has been highly favored by the courts. 9 R. C. L., 563; Hodge v. Powell, 96 N. C., 64; McMorris v. Webb, 17 S. C., 558; Lewis v. Apperson, 103 Va., 624. Dower, throughout the vicissitudes of governments, and despite the myriads of influences that have contributed to the common law of England, and the common law now in force in the United States, barring a few minor statutory modifications in some States, .has maintained its early qualities and incidents. Our Constitution, Art. X, sec. 8, and C. S., 4099, 4100, 4101, 4102, 4103, and the machinery for the .obtaining and enjoyment of dower, fully protect and maintain the esteem in which dower has always been held. Upon the allegations in the answer, construed liberally, yet reasonably, in favor of the pleader, we are of opinion to hold that the judgment appealed from must be reversed, to the end that a trial may be had on the issue as to the trust alleged in the answer. Reversed.