O'Kelly v. . Williams

Ashe, J. The only question raised by the appeal from the judgment upon the case agreed, is whether the wife of the defendant is entitled to dower. The wife is not a party to this action, but the defendant husband sets upa claim for her dower under the act of 1867, the first section of which gave to her the one-third of all the lands, <fec., of which he was seized or possessed at any *283 time during the coverture, and the second-section prohibited the husband from alienating more than two-thirds of the same, unless she joined with him in the conveyance, and was privately examined touching her free and voluntary consent to the same; but this act was expressly repealed by the act of 27th of March, 1869, which, to be sure, left the widow’s right of dower the same as secured by the act of 1867, only postponing the time of enjoyment until after the husband’s death, but was amended by the act of 28th March, 1870, which gave the wife, upon the death of the husband, one-third of all the lands, &c., of which her husband was seized or possessed at any time during the coverture. It has been repeatedly decided by this court, that when the husband was married, and acquired the land in dispute, before the 27th day of March, 1869, the day of the ratification of the act of 1868-’69, the husband had the absolute right of alienation, and a claim for dower, by his wife, could not be sustained. Sutton v. Askew, 66 N. C., 172; Felton v. Elliott, Ib., 195; Hughes v. Merritt, 67 N. C. 386; Williams v. Munroe, Ib., 164; Bruce v. Strickland, 81 N. C., 267. The facts in most of the cases are very imperfectly stated. In Sutton v. Askew, it is stated that the marriage took place in the year 1867, and it is left to inference that the husband then owned the land. In Felton v. Elliott, the date of the marriage and acquisition of the land are not given. There is no statement of the ''’ates of these events in the case of Hughes v. Merritt. In Williams v. Munroe, the title to the land, and the marriage, are stated to have occurred in 1859. And in Bruce v. Strickland, it is stated that the marriage took place in 1847, and the land was acquired before March, 1867. All of these-cases were decided upon the ground that the marriage and the acquisition of the land were had prior to the act of 1868-’69, and these facts were either proved or assumed. But' in neither of the cases does it appear that either the marriage or the acquisition of the land occurred *284 after the act of 1867, and prior to the act of 1868-69. But in our case, the marriage was contracted in the year 1866, and the land obtained in November, 1867, so that it differs in its facts from all the cases cited, and in applying the principles enunciated in them to the facts of this case, we are led to a different result from that reached in any of the said cases. In the absence of any information to be derived from the records in' these cases, we must take it for granted that the marriage and acquisition of the land did not occur between the ratification of the act of 1867 and that of 1869, for all of the decisions are made upon the ground that the act of 1867 was repealed by the act of 1869, and the husband had a vested right in his land, and an absolute right of alienation unaffected by the latter act. Sutton v. Askew, and the other cases cited, supra. By the marriage in 1866, the wife of the defendant acquired only a right of dower in such lands as her husband might die seized and possessed of, depending upon the contingency of her surviving him. But when the act of 1867, restoring to married women their common law right of dower was passed, she acquired a vested right in all the land her husband might be seized and possessed of during coverture. The first section of the act provided “ that every married woman shall be entitled to one-third of the lands, tenements and hereditaments of which her husband is or may be seized and possessed at any time during coverture, &c.” The second restricted the husband's alienation to two-thirds of the land, unless, with the consent and privy examination of the wife. The third section provided that no creditor should levy upon the land without first having set apart to the wife the one-third thereof, by metes and bounds, under the proceeding prescribed in said act. And it was further provided in said act, that “ when the- proceedings shall have been reported to the court by the said jury, and *285 the court shall have confirmed the same, the title to the land so allotted and set apart to the wife, shall be deemed to have vested in her by virtue of her marriage.” As to the land acquired by the defendant in November, 1867, the wife’s right of dower, though inchoate till then, attached to the land as soon as acquired, and then at once, by the operation of the act, became “ vested,” and was not affected by the repealing act of 1869, for a “vested right” cannot be destroyed by a subsequent repealing statute. Sedgwick on Stat., &c., 177; Cooley’s Const. Lim., 443, and Sutton v. Askew, supra. In the latter case Mr. Justice Reads says: “ We by no means subscribe to the dectrine that a right vested by operation of law is less inviolable than when it arises from contract; where it once exists, no matter how, it is inviolable.” When the defendant acquired the land in 1867, be took it subject to the laws existing at the time, for laws which subsist at the time and place of making a contract enter into and form part of it, as if they were expressly referred to or incorporated in its terms. Van Huffman v. Quincy, 4 Wallace, 552. The same principle applies to the acquisition of real property, whether it comes by purchase or inheritance. If a deed for land, for instance, was made to a man and the heirs of his body in fee-tail, he would take an estate in fee simple; so if the land should be conveyed to two men and their heirs to hold as joint tenants, they would take as tenants in common. The defendant then when he acquired the land in dispute, had full legal notice that he was taking it with the encumbrance of the wife’s right of dower, and there was no hardship upon him. We hold that the wife of the’defendant is entitled to such dower in-the land in controversy as was secured to married women by the act of 1867, and judgment must be rendered in conformity to this opinion, according to the “ case agreed.” Error. Reversed.