Askew v. Bynum

• Decision Date: 30 June 1879
• Citation: 81 N.C. 350
• Court: North Carolina Supreme Court
• Parties: MARY A. ASKEW v. W. F. BYNUM and others.

81 N.C. 350

MARY A. ASKEW

v.W. F. BYNUM and others.

Supreme Court of North Carolina.

June Term, 1879.

PETITION for Dower filed before the Clerk of the Superior Court of HERTFORD, and heard on appeal at Chambers, on the 19th of September, 1878, before Eure J.

A. J. Askew and Mary A. his wife intermarried in the year 1843; and 1874, the husband died, residing at the time of his death on a tract of land of which he was seized, situate in the county of Bertie, leaving him surviving, his wife, the plaintiff. The husband in the year 1869 acquired a title in fee in and to a tract of land in the county of Hertford, called the “Bynum tract,” and he continued to be the owner thereof until he conveyed it to W. F. Bynum, J. D. Reddick and wife, Annie C. Bynum and Mary J. Bynum, by a deed without the joinder of his wife with privy examination as required by law.

After the death of the husband, Mary A., the widow, filed her petition in the probate court of Bertie county against the heirs at law of the husband for the assignment of her dower in the lands of which he died seized in that county; and it was assigned in these lands without taking into consideration the value of the lands in Hertford county which had been conveyed to the defendants as aforesaid.

After the assignment of dower in the Bertie lands, the widow filed another petition in the probate court of Hertford county, praying to have her dower assigned in the lands which her husband had conveyed to the Bynums, and to this petition the heirs at law of the husband and the bargainees of the husband were made parties defendant. In the probate court of Hertford, the parties made a case agreed containing the facts above recited, and submitted the same to the judgment of the judge of probate, agreeing that if the widow was entitled in law to be endowed in the Hertford lands, and the judge of probate of that county had jurisdiction, judgment might be entered for the assignment thereof and for costs against the defendants; otherwise, for defendants and for costs against the plaintiff. The judge of probate on the facts submitted adjudged that the widow was entitled to have her dower assigned, and ordered that a writ of dower issue, and from this ruling an appeal was taken to the judge of the superior court. And His Honor held that the plaintiff was entitled to have the Hertford tract considered and valued as part of the husband's lands for the purpose of estimating the quantity of the dower, but the same was to be laid off on the Bertie lands, if sufficient; and if not, then a sufficient quantity to be taken of the Hertford lands to make a full third in value of all the lands; that the bargainees of the husband had the right as against the heirs to have dower located on the lands of which the bargainor died seized, in exoneration of the lands conveyed to them. His Honor being further of opinion that the application for dower should be made in the probate court of Bertie, adjudged that the proceeding be dismissed at the costs of the plaintiff, and from this judgment the appeal is taken.

Messrs. Gilliam & Gatling, for plaintiff :

The husband purchased the land after the act of 1868-'69, and dower must be assigned out of all the lands of which he was at any time seized during coverture. Mitchener v. Atkinson, Phil. Eq., 23; Rose v. Rose, 63 N. C., 391. No conveyance by husband shall pass title to but two-thirds of land, except on mortgage to secure purchase money, Bat. Rev., ch. 117, and the wife is not barred from asserting her dower right, not being a party to the deed. The provision for the assignment of dower in lands lying in several counties upon one petition, Rev. Code, ch. 118, is repealed by the act of 1869, chap. 93, § 51, and dower enlarged. Section 66 of C. C. P. fixes venue of actions to recover any interest in land in the county where the land lies.

Messrs. D. A. Barnes and J. B. Batchelor, for defendants .

DILLARD, J. (After stating the case.)

By act of the general assembly ratified on the 2nd of March, 1867, the right of dower in this state theretofore attaching only to the lands of which the husband died seized, was enlarged and made to embrace all the lands of which the husband was seized at his death or at any time during the coverture; unless conveyed with a joinder of the wife in the deed, and with privy examination as prescribed by law. The quantity to be assigned was one-third interest in value of all such lands, with a peremptory direction to include the dwelling house in which the husband usually resided, and the outhouses and other improvements thereunto belonging. Bat. Rev., ch. 117, § 2. By section 3, chapter 118 of the Revised Code, which although not brought forward in Battle's Revisal according to the construction of this court in State v. Cunningham, 72 N. C., 469, and other cases, is to be taken as still in force, it is provided that the assignment be made (subject to the restriction to embrace the dwelling house, &c.) not in every separate tract, but in one body or several, on one or more tracts, having a due regard to the interests of the heirs and the rights of the widow.

Under these provisions of the law, the plaintiff on the death of...