Overton v. . Hinton

Douglas, J.: This was a special proceeding for the assignment of dower. Upon the trial in the Superior Court his Honor intimated that the plaintiff could not recover. Thereupon the plaintiff submitted to a non-suit and appealed. Summons for the defendants were issued to Camden County on the 16th day of November, 1896, and to Pasquotank County on the day follow *6 ing. On the 23rd day of November, after the issue of summons but before its return day, the defendant C. L. Hinton, through some one else, sold the land in question under a deed of trust executed during his life by the husband of the petitioner to secure the purchase money of the land. At this sale the defendant, J. L. Hinton, bought the land, which was sold as a whole. The petitioner publicly objected to the sale. The said J. L. and C. L. Hinton, the latter the trustee and the former the creditor and purchaser, are the only real defendants in the case, as the heirs at law made no objection to the assignment of dower. The defendants Hinton answered setting up the original purchase of the land, the deed of trust, its default and sale thereunder. The plaintiff replied, alleging other matters, which cannot be considered, as the reply was abandoned at the trial. The plaintiff, however, insisted that she was entitled to the exoneration of her dower to the extent that the undowered land should be first sold, and then the fee in remainder after her dower, leaving the dower itself unsold unless necessary after the complete exhaustion of the other sources. To this, we think, she was clearly entitled. Thompson v. Thompson, 46 N. C., 430; Caroon v. Cooper, 63 N. C., 386; Smith v. Gilmer, 64 N. C., 546; Creecy v. Pearce, 69 N. C., 67; Ruffin v. Cox, 71 N. C., 253; Askew v. Askew, 103 N. C., 285. The sale of the land after the commencement of proceedings and over the protest of the plaintiff does not help the defendants, and the sale must be set aside. The plaintiff petitioner is entitled to have her dower laid off in the lands in question, the remaining two-thirds of which may then be sold to pay the balance due on the debt secured by the deed of trust. If the proceeds of sale are not sufficient, then the remainder in *7 fee after the dower must be sold, and the proceeds applied in the same manner. If a balance still remains due on said debt, then and then only can the dower itself be subjected thereto. There is error in the intimation of the Court. New trial.