Efland v. . Efland

Davis, J., (after stating the facts). The first exception is to the jurisdiction of the Court. Although the statute (The Code, §2111,) provides that a widow may apply for assignment of dower by petition in the Superior Court, as in other cases of Special Proceedings, and when the application is so made it must be returnable before the clerk, and not to the Superior Court in Term, yet that was not intended to deprive *493 the Superior Court of the equitable jurisdiction, is well established. Campbell v. Murphy, 2 Jones Eq., 359; Jones v. Gerock, 6 Jones Eq., 190. But, as was said by Ashe, J., in Pollard v. Slaughter, 92 N. C., 81; “The application to the equitable jurisdiction of the Court, should, as a general rule, contain some equitable element.” That equitable element exists in this case, and involves questions both of law and fact, which could not be adjudicated before the clerk, and which, under the old practice,, would have been cognizable in a Court of Equity, and is-properly a “civil action” within the definition of Pearson, C. J., in Tate v. Powe, 64 N. C., 684. There was no error in. overruling the exception. The three other exceptions may be considered together. It seems that the defendants’ counsel and the Court, regarded the relation of Levi Efland to both tracts as the same, and the rights of the widow in relation to both as the same, and the defendants insist that the jury having found the deeds were directed to be made to the son and daughter respectively, to cover and protect the land from the father’s creditors, that, although the purchase money was paid by the-father, the Court would not construe the holders of the legal title into trustees of Levi Efland, they being dishonest trusts; and moreover, the agreement that the purchase wasjfor Levi’s benefit, being by parol, there was no enforcible trust in favor of Levi under the statute of frauds, and the widow claiming derivatively through him, could be in no^better position than he was. It appears that Levi Efland never was seized or possessed of the tract of forty-two acres, though purchased by George for him and paid for with his money, as found by the jury, nor was he at any time seized in fee of such an equitable estate therein as could be enforced in a Court of Equity. Rhem v. Tull, 13 Ired., 62. As to this tract, there was no such seizin or equitable;estate in Levi Efland during cover- *494 ture, as would entitle his widow to dower therein. The possession at the time of his death does not constitute the seizin necessary to support the widow’s claim to dower. Barnes v. Raper, 90 N. C., 189, and the cases there cited. The tract of 150 acres conveyed to the defendant Ellen, stands upon a very different footing. The husband was not ■only in possession of this tract at the time of his death, but he was seized and possessed thereof during the coverture. The record does not show when the title was acquired or when the marriage took place, but if subsequent to the act restoring to married women the common law right to dower, it is clear that the plaintiff’s right to dower in this land would not have been destroyed, even if the purchase by George and the deed to Ellen had been in good faith. As to how it might be, if acquired before the act, we express no ■opinion. But the fraudulent conduct of the parties in this transaction, though “ with no view or aim in any way to defraud the plaintiff,” is sought now to be invested with the force and effect to deprive her of her right to dower in the land of which her husband was seized during coverture, and which he possessed at the time of his death. This cannot be allowed. “As the money was the father’s and not the daughter’s, there was in truth no price and no sale as between father and daughter.” Dotson v. Erwin, 1 D. & B., 573. The plaintiff is entitled to dower in the tract of 150 acres, but not in the tract of 42 acres.' Let this opinion be certified, to the end that the judgment of the Superior Court may be modified in conformity therewith. Error. Modified.