Hart v. McCollum

[480] By the Court Lumpkin, J., delivering the opinion. It is admitted in the argument, and is undoubtedly true, that the right of dower stood in this State, as it did at common law, until 1826. The colonial act of 1760 (Cobb, 161,) merely ascribed the mode by which the right of the feme covert-might be conveyed. By the act of 1826, (Prince, 249,) it is no longer necessary for the wife to join with the husband to bar her dower, except as to the lands of which the husband may have become possessed by his intermarriage. As to all other lands of which he may have been seized during coverture, his separate deed is sufficient to convey the entire title. The legislature, fearing some construction might be put upon the act which would limit the widow’s right to lands which come by her, say that nothing contained in the act shall prevent the widow from her right to dower in all lands of which her husband might have been seized. Mortgaged lands would be included under this clause. One thing is very plain* — that while the separate conveyance of the husband is sufficient to transfer the entire title, except as the marriage lands, still to effectuate that object a conveyance must be made. And the mere failure of the husband to sue for lands of which he was once legally seized during coverture, until the statute of limitations attaches as against him, does not exclude the wife’s right to dower in said lands — a right which she may assert when she becomes discourt. The judges in convention held, and such was the well settled doctrine of the common law, that the statute of limitations did not run against dower. In confirmation of our constructions of the act of 1826, we refer to the statute of 1842, (Cobb, 179). It is as follows : “ All conveyances of real estate made by any sheriff' or other officer, in pursuance of sale made under execution or other legal process or order of court, in the life [481] time of the husband, shall be as good and effectual in bar of the right of dower as if the conveyance was made by the husband himself. The act of 1826 having provided that the deed of the husband alone should be good to convey away the wife’s rights of dower, the act of 1842 makes judicial sales and conveyances in the lifetime of the husband “ as good and effectual in bar of the right of dower as if the conveyance were made by the husband himself.” And this is as far as the legislature has gone. That the legislative policy has been to respect dower, I do not deny. Neither do I find fault with it. On the contrary, I approve of it. That they intended by the act of 1826 to limit it to lands which come by her, and which she had not conveyed jointly with her husband, and lands of which the husband died seized and possessed, is quite probable. Still it is manifest that the acts passed have fallen short of accomplishing that purpose. To bar her right then, there must be a conveyance by the husband or by the officer of the law under a judicial sale. We hold, then, that as to the land in dispute, it is only for the widow to show marriage, seizure of the husband at any time during coverture, and death of her husband, and her right to dower is prima facie established. The legislation of the State is not in the way in this case. Judgment reversed.