Askew v. . Askew

Smith, C. J. (after stating the facts). The complaint made by appellants to the manner in which dower is assigned, in respect to the lands under mortgage, lies in the facttfiat one-third in each, as a whole, and as if free from an}*- incumbering debts, was allowed, instead of one-third in value of the equity of redemption — that is, of the full estate, reduced by the amount ofthe incumbrance. Upon the ground of this alleged error, and for its correction, redress is sought in the appeal to this Court. The commissioners have placed a money estimate upon the several parcels of land left by the deceased, without distinguishing between such tracts as are, and such tracts as are not, charged in deeds of trust with the payment of debts, and have assigned to the widow the whole three-acre lot at Chapel Hill, estimated to be worth $2,500, for her life, have assigned to her no part of the lot in Raleigh, valued at $5,500, and subject to an incumbrance of a secured debt *292 due to Mildred Cameron of $4,000, by note payable November 6, 1882, and bearing interest at the rate of eight per cent, per annum, how much remains still due being principal and interest to May, 1887. The remaining tracts, which are many in number, and are grouped together as a body, not admitting of separation into parts without impairment in value, are put at a valuation of $27,500, and, to assure the remaining dower, an interest therein of $73 33A0 is assigned as a charge thereon. It thus appears that the aggregate value of the dower is made up of an estimate of the different tracts, as if all were free from incumbering liens, and apportioned in the manner stated. This seems to have been done under the statute which declares that the jury or commissioners “ shall not be restricted to assign the same (dower) in every separate and distinct tract of land; but may allot her dower in one or more tracts, having a due regard for the interest of the heirs, as well as to the right of the widow.” The Code, § 2103. This rule is well settled in this State, whatever may be the decisions elsewhere. Under our statute an interpretation is put upon it that a widow is entitled to dower in lands held by her deceased husband under a bond for title, whether the purchase money has been paid or a part of it remains due, and also in any equity of redemption in lands which have been conveyed to secure a debt or liability. The widow’s right in such cases, as against the heir or devisee, to have her dower assigned in the entire tract, and the remaining two-thirds, as well as the reversionary interest in the part covered by her dower, sold in exoneration, when the personal estate is not sufficient, and her dower only sold when needed, after these appropriations, to pay the secured debt or discharge the liability, is equally well settled. In Thompson v. Thompson, 1 Jones, 430, it was decided that a right to dower existed in lands held under a contract to convey when paid for, though.partof the purchase money *293 was due, but without regard to its diminished value in consequence thereof, and that the personal estate applicable to the debt must be employed in relieving the land of the burdening liability. In the opinion a doubt is expressed as to whether the residue of the estate in the land should, in case of failure of personal property, be also thus applied in relief of the dower. The doubt was resolved in favor of the widow in Caroon v. Cooper, 63 N. C., 386, and the result stated in these words: '‘Our conclusion is that the widow is entitled to have dower assigned out of the whole tract, and cannot be called on until it is ascertained that the remaining two-thirds and the reversion in the one-third, covered by her dower, are insufficient to pay off the incumbrance of the purchase money.” In Creecy v. Pearce, 69 N. C., 67, the doctrine is extended and made to embrace an equity of redemption inlands conveyed in trust; and while the residue of the estate, outside of the dower, must be put in the forefront of liability in discharging the incumbrance, its full amount has no priority over other debts of the same class, out of the personal assets; its residue, after the reduction by the said funds, must share with other debts in the distribution of assets in the hands of the administrator. In like manner, it is held that the bankrupt must take, when there are none but incumbered lands, his exempt real estate out of the lands estimated, as if unincumbered. Burton v. Spiers, 87 N. C., 87. If necessary, however, to meet the debt or liability resting upon the land, the dower must also go, for it is allotted in subordination to the claim of the creditor, to a full satisfaction of his debt. It is obvious the doctrine prevailed only in reference to a single tract of land, or several conveyed by the same deed, or included in the same contract, and determines the relation and rights of parties thereunder. The decisions proceed no further. *294 In order to the enforcement of the widow’s equity, the dower must first be laid off in the manner directed by law; and when the creditor seeks by a specifiic performance to subject the lands to his debt, the equity of the widow springs up, to have all outside of her dower estate in the premises sold, and the proceeds thereof first applied in discharge of the debt, so that, if found to be sufficient, she may have her dower exonerated or reduced to a sum she may be able to meet, and thus have full and absolute relief. It is plain that the value of the dower is the allotted part, diminished by the sum necessary to be raised for its relief, after exhausting these resources first applicable, and this value would depend upon the further sum to be raised out of the dower land itself. It would be manifestly unjust to take the full value of incumbered lands, as if they were free from incumbrance, and assess other lands, held under a different title, with the entire sum, in awarding dower therein; nor do the adjudications referred to warrant any such course. It might be, as, perhaps, it was, so considered by the commissioners, that the lots in Raleigh were burdened to their full value, and no practical benefit would be secured by assigning dower therein; and surely one-third of that portion of the testator’s estate ought not to be allowed to swell the aggregate value of the dower, and be imposed on other lands. It is equally plain that the whole lot at Chapel Hill should not be assigned in the absence of any evidence that her dower in all the lands would be of equal value with that lot. The statute which authorizes the assignment of the dower in parts of the lands, instead of upon each separate tract, has reference to the rights and interests of others as well as that of the widow, and the exercise of the power must be in the sound discretion of the commissioners, and where no wrong is thereby done to others. But it cannot be exercised upon the basis of the rulings appropriate to lands held under one title and subject to the *295 same incumbrance. Jn the present case, the application is a simple one for the allotment of dower, and its purpose is attained by an assignment in each separate parcel. It is impossible to tell the value of the dowser in the incumbered estate, until there has been a sale of the outside parts and the reversion, nor is this possible before an assignment and location of the dower have been in fact made and the price they will bring ascertained. If the whole tract was sold, as, by consent, it may be, the fund could be apportioned between the creditor and widow; but this would not be an assignment of dower, or a specific appropriation of lands as such, but a division of the money, and she not only does not assent to this, but demands to have her dower defined and set apart in all the lands. It is plain that the doctrine established in the adjudications, and which is limited to lands under one and the same trust, cannot, with any justice, be carried so far as to embrace lands under a different trust, and subject to liens of different proportionate sums, with the necessary uncertainty as to how far the dower in each may be exonerated by the application of. the widow’s equity in reference to each, separately considered. To secure the benefits of the principle, so far as the incumbered lands are involved, the widow must do as she has done here, ask an assignment of her dow’er in all the lands, and then she works out her relief by asserting her equity against the creditor when he seeks to specifically enforce his contract, or foreclose by a sale. We think there is error in the manner in which the commissioners dispose of the ¡petitioner’s claim upon the series of tracts which are consolidated and treated as one body. Besides the rectification of the error, in not allowing the petitioner an interest — that is, a life use — in one-third of the estimated value of the whole, but a smaller sum, if undivided and to be held in common, the allotment should have *296 fieen of one-third of the premises in value, as the law awards, .and not the use of any specific sum, for that sum may not be realized by the sale; and whether more or less, her share therein is fixed by the law, and does not depend upon estimates thus made. There would be no difficulty in putting the dower derived from several tracts, put wholly upon one or more, when all are unincumbered, for this is both allowed by the statute and is consistent with the rights of other interested parties. For the reason stated, the judgment must be set aside as erroneous, and a new allotment of dower ordered to he made. To which end, this will be certified to the Court below. Error.