Brown v. Morisey

Eukches, J. This is a proceeding for dower and defendant denies plaintiff’s right, alleges title in bimself and pleads adverse possession, lapse of time, statute of limitations and release. Upon tbe trial tbe plaintiff showed that she was married.to George Brown in 1854, a deed to him dated in September, 1854, conveying tbe land in controversy to him in fee simple; that be entered upon said land and built a bouse, and cleared and cultivated a part of tbe land, and that she and her said husband lived on it for more than a yearj when they left tbe land, and her husband left tbe State and died in 1860 or ’61; that soon after plaintiff and her husband left tbe land, tbe defendant entered and has lived there ever since, clearing, cultivating and using tbe land as bis own. Tbe defendant offered no deed or other written evidence of title, but relied on bis long-continued possession, wbicb, be contends, gives him a title in fee simple to tbe land. When tbe plaintiff showed her marriage, a deed in fee simple to her husband, and bis death, this gave her prima facie a right to dower. And she- contends that defendant has shown nothing that rebuts this presumption or prima facie right to dower; that be has shown nothing but bis long continued possession, and this is no bar to her right to dower; [294] that tbe lapse óf time and tibe statute of limitations does not run against a right of dower — citing Spencer v. Watson, 18 N. C., 213; and Campbell v. Murphy, 55 N. C., 357. This doctrine is announced in these cases, and is a correct application of the law to them, but as we think it would not be to this case.. In those cases, the defendants claimed title under the husband. In this case, the defendant does not claim under the husband, but adverse to his title. " Where the defendants claim under the husband (as heirs or assignees) they can not dispute the title of the husband, as they claim under him. And while the widow does not claim dower under the husband, she claims it under the same title that the heirs and assignees claim, by force and operation of the law of dower. Upon her marriage, she acquired an inchoate right of dower which the husband could not destroy or defeat. Upon the death of the husband, this inchoate right becomes aright consummate, but she has no estate until dower is assigned; and when this is done she acquires no new estate, but only the possession and enjoyment of the inchoate right she acquired by reason of her marriage ripened into an estate. Her dower right and her dower when assigned are a prolongation of her husband’s estate in her for the term of her life. Norwood v. Morrow, 20 N. C., 448. The estate descends to the heir subject to this incumbrance, and, as- he takes it subject to this incumbrance, he can not hold or claim the estate adversely thereto; and, as he can not hold adversely to the right of dower when he holds and claims the estate under the same title that she claims dower, the statute does not run. It is the same as a grant in fee simple, reserving a life estate; and, as the grantee holds his estate under_ the grantor, he can not claim to hold adversely to the estate reserved, and the statute of limitations does not run. McCormick v. Monroe, 46 N. C., 13. But this doctrine does not [295] obtain in this case where the defendant does not claim tinder the husband as heir or assignee, but claims to hold adversely to the husband of the plaintiff, and by paramount title. We see no reason why he may not do this. And while this is not directly held in Norwood v. Morrow, supra, on- page 449, it seems to be conceded. If the defendant had a deed conveying a title paramount to that of the husband of the plaintiff, it is admitted that this would defeat her right of dower. So, if he had shown a deed from a stranger, and an adverse possession thereunder since he went into possession, it would have ripened into a perfect title as against the husband, if he were living. And so would a continued adverse possession, without color of title, from 1851 or 1858 until the commencement of this action in 1896, have ripened into a perfect title against the husband. And there being no reason that we see why the lapse of time and the statute of limitation should not count against the husband (the defendant not holding under him) and the plaintiff’s right to dower, being a continuation of the husband’s estate, we see no reason why she is not also barred. It is true the husband by his own acts could not defeat her right of dower, as already .stated. But she can not be entitled to dower unless her husband was the owner of the land, and the theory of the defence is that “though he had a deed, he was never the owner of the land;” and as the defendant has shown title in himself, it must be held to be paramount to that of the husband. It was said on the argument that while the case showed that the defendant had been in possession all this time, cutting, clearing and cultivating the land as his own, it was not shown that he held adversely. This, it seems to us, is the- very strongest evidence that he was holding it adversely. [296] But tbe fact that he was in the sole possession and enjoyment of the land, is sufficient in law to constitute adverse possession. Alexander v. Gibbons, 118 N. C., 796. The judgment must be affirmed.