Rook v. . Horton

Yarser, J. Plaintiff’s exceptions challenge tbe rulings of tbe trial court in bolding that adverse possession under color of title for a period of seven years was sufficient to bar tbe petitioner’s right of dower. Tbe other exceptions in tbe record are either immaterial or necessarily abide tbe result of tbis one question. In questions relating to dower tbe widow is not to be considered a creditor or purchaser for value. Pridgen v. Pridgen, ante, 102; Haire v. Haire, 141 N. C., 88; Norwood v. Marrow, 20 N. C., 578. Marriage constitutes a valuable consideration for many purposes, but not with respect to dower. Dower arises not from tbe contract of marriage, but from tbe law, on account of marriage. Husband and wife make no contract with respect to dower or curtesy. Frequently dower is allotted in spite of tbe husband’s previous acts or declarations. Pinner v. Pinner, 44 N. C., 475. Defendant relies on adverse possession under two deeds from W. R. Horton to her. Tbe first deed attempts to convey a life estate and tbe second deed attempts to convey tbe fee in tbe lands in controversy. Tbe first deed is dated prior to tbe marriage of petitioner with J. J. Horton, who was, at that time, admittedly tbe owner of the fee in tbe lands in 'controversy, but tbis deed was registered after petitioner’s marriage. It appears that tbe defendant is not, under these deeds, a purchaser for value, but that both of these deeds, as recited by tbe court in its charge, were deeds of gift. Tbe deed executed by W. R. Horton, to bis first wife for life and then to W. J. Horton, did constitute W. J. Horton a purchaser for value, for tbis deed recites a consideration of $800 paid by W. J. Horton. Tbis is an admission by W. R. Horton, tbe common source. The deeds from "W". R. Horton to tbe defendant, could not constitute, in any event, as against J. J. Horton, color- of title until registered. Austin v. Staten, 126 N. C., 783; Collins v. Davis, 132 N. C., 106. *183 Tbe defendant relies npon Kluttz v. Kluttz, 172 N. C., 623 and King v. McRackan, 168 N. C., 624. King v. McRackan, supra, establishes tbe rule under wbicb W. J. Horton becomes a purchaser for value under tbe admission of ~W. E. Horton tbe common source, and Kluttz v. Kluttz, supra, follows Collins v. Davis, supra, limiting tbe rule that unregistered deeds are not color of title to purchasers for value. It is by virtue of this rule that defendant’s deeds from ~W. E. Horton are not color of title in.favor of a disseizor, when tbe disseizor is claiming under tbe common source. Dower is only an elongation of tbe husband’s estate. Graves v. Causey, 170 N. C., 175, 177; Everett v. Newton, 118 N. C., 921; Malloy v. Bruden, 86 N. C., 258; Williams v. Bennett, 26 N, C., 122; Norwood v. Marrow, supra; but when it becomes inchoate it cannot be barred, except as provided by law. J. J. Horton died in 1922, and this action was instituted in 1924. In no view of tbe defendant’s evidence, viewed in its most favorable light for her, did she and her husband, W. E. Horton, have seven years adverse possession .under color, unless it took place, for tbe most part, during petitioner’s coverture. Defendant asserts that, under tbe rule announced in Brown v. Morisey, 124 N. C., 296, adverse possession during tbe coverture will, bar dower. Tbe first vital difference between Brown v. Morisey, supra, and tbe instant case, is that in Brown v. Morisey, both tbe marriage and tbe acquisition of tbe land were prior to 1856. Then our dower statute allowed tbe widow to claim dower in tbe lands “of wbicb her husband died seized or possessed,” and, now she may seek dower in tbe lands of wbicb be was beneficially seized at any time during tbe coverture. However, in Brown v. Morisey, supra, there were two dissents and one concurring opinion. Brown v. Morisey, 126 N. C., 772 (tbe same case reheard) held, reversing tbe. former opinion, that adverse possession, while tbe dower was inchoate, could not constitute a bar. In Campbell v. Murphy, 55 N. C., 360, Chief Justice Pearson states tbe limitations as to tbe exercise of tbe writ of right and writ of dower at common law. It further appears that Brown v. Morisey, supra, has remained an unquestioned authority for twenty-five years. On account of tbe nature of tbe wife’s interest in an inchoate right of dower, she cannot set up her claim to dower during her husband’s lifetime. Hughes v. Merritt, 67 N. C., 386; Felton v. Elliott, 66 N. C., 195; O’Kelly v. Williams, 84 N. C., 283; Gatewood v. Tomlinson, 113 N. C., 312; Rodman v. Robinson, 134 N. C., 503. This rule does not affect her rights in equity for tbe protection of her inchoate right, as discussed in Deans v. Pate, 114 N. C., 194; Gore v. Townsend, 105 N. C., 228, and eases therein cited. *184 Since the wife may not maintain an action for dower prior to the husband’s death, she is not put to her right of action against a disseizor during the coverture; and, therefore, adverse possession by a disseizor with or without color of title, after her marriage, does not bar or affect her right to dower. This rule is recognized practically wherever the widow is dowable as at common law, and as now provided by statute in this State. The reason, upon which seizin in law is as effectual to support dower as seizin in deed, is as stated by Blackstone: “For it is not in the wife’s power to bring her husband’s title to actual seizin.” 2 Blackstone, 131; Lewis’ Edition, 594. This reason applies with equal force in adverse possession during coverture where she has no right to the possession during the husband’s lifetime, and, therefore, could not compel her husband to sue, and she is without power to sue in her own right. 19 C. J., 500; Tiffany on Real Property, 821; Miller v. Pence, 132 Ill., 149; Lucas v. Whitacre, 121 Iowa, 251; Williams v. Williams, 89 Ky., 381; Moore v. Frost, 3 N. H., 126; Durham v. Angier, 20 Maine, 242; Culler v. Motzer, 28 Pa., 256 (Sergeant Eawle’s Beports, 356); 9 R. C. L., 385, 612; Lucas v. White, 85 N. W., 209. The ordinary'statutes of limitations do not, unless expressly so provided, apply to dower. Neither does the seven-year statute which makes title with color an adverse possession. Her right, while inchoate, does not repel the use and enjoyment by others; she is not repelled by the statute of limitations. Spencer v. Weston, 18 N. C., 213; Campbell v. Murphy, supra; Simonton v. Houston, 78 N. C., 408. Dower is a favorite of the law (Pridgen v. Pridgen, supra), and the courts will not be astute to find ways by which it will be barred. Feudal regulations put every safeguard around the alienation of land, and so complex did it become that it worked its own overthrow. The next and modern effort-was to facilitate the transfer of title to land; but, as reasoned by Chief Justice Taylor in Frost v. Etheridge, 12 N. C., at page 38, that “a very helpless part of the community has sacrificed in an undue proportion towards its establishment; and, therefore, 'the pittance,’ the dower, has been protected from reasonings and analogies that might otherwise work its destruction.” When once vested in her, the wife’s inchoate dower right will be protected. O’Kelly v. Williams, supra. The defendant challenges plaintiff’s right to raise these questions on account of failure to ask special instructions in writing, under McKinnon v. Morrison, 104 N. C., 363. We do not think this salutary rule will bar plaintiff. The admission of the falling in of the life estate in 1912; the admitted marriage of petitioner in 1913, and the datés of the registration of the two deeds from W. E. Horton, to wit, 1915 and 1917, and the second issue, are sufficient to permit this question to *185 be raised under tbe exception to tbe judgment. Tbe judgment is not supported by tbe verdict when tbe above facts are considered. . Tbe appeal, itself, is sufficient to raise tbis question. Williamson v. Rabon, 177 N. C., 302; Ullery v. Guthrie, 148 N. C., 417; Griffith v. Richmond, 126 N. C., 377; Thornton v. Brady, 100 N. C., 38. Tbe plaintiff contends tbat tbe possession of tbe father, W. E. Horton, was not adverse to J. J. Horton, but we do not find it necessary to decide tbat interesting question, in tbe light of our views on tbe effect of such possession upon plaintiff’s dower right. Tbe trial court held, and we think properly so, tbat tbe deed by W. E. Horton to Mrs. Mary F. Horton and ~W. J. Horton, dated 19 March, 1904, conveyed a life estate in tbe lands in controversy to Mary F. Horton, and tbe remainder in fee to W. J. Horton. Upon ~W. J. Horton’s death in 1905, tbis remainder descended to J. J. Horton. Upon tbe falling in of tbe life estate of Mary F. Horton in 1912, J. J. Horton became tbe owner of tbe fee and entitled to tbe possession. When plaintiff’s coverture began in December, 1913, her husband J. J. Horton was still tbe owner and beneficially seized of tbe lands in controversy. It was error to bold tbat seven years adverse possession under color of title, accruing since tbe coverture began, was a bar to plaintiff’s claim'of dower. Therefore, there must be a New trial.