Citizens Bank & Trust Co. v. Watkins
| Decision Date | 22 March 1939 |
| Docket Number | 164. |
| Citation | 1 S.E.2d 853,215 N.C. 292 |
| Parties | CITIZENS BANK & TRUST CO. v. WATKINS et al. |
| Court | North Carolina Supreme Court |
Special proceedings to sell lands for partition.
Samuel Watkins, Sr., died seized and possessed of the four several tracts of land described in the petition. Thereafter Samuel Watkins, Jr., one of his heirs-at-law, having died, his widow, the defendant Rushia W. Watkins, was allotted one-eighth interest in said property as her dower. She thereafter acquired the remainder interest, so that her dower interest and the interest acquired by purchase vests her with the fee in one-eighth interest.
Subsequent to the allotment of dower the plaintiff acquired a two-eighths undivided interest in tracts 1, 2 and 3 and a one-eighth undivided interest in tract 4. Whereupon, the plaintiff instituted this proceeding to have said land sold for partition.
It is alleged in the petition and admitted in the answer that an actual partition of the lands cannot be made owing to the nature and character of the real estate and the number of parties interested. The defendant Rushia W. Watkins, in answer to the allegation that a sale of said land would be more advantageous to all of the parties interested than an actual partition thereof, denies that a sale of said lands would be more advantageous to her and elects to stand on her right of dower and objects to any order of sale of her dower right.
An issue of fact having been raised as to the exact interest of the plaintiff in one of the tracts of land, the cause was transferred to the civil issue docket. A jury having answered the controverted issue of fact in favor of the plaintiff, the Court entered judgment ordering sale of said tract of land, including the dower interest of Rushia W. Watkins. The defendant Rushia W. Watkins excepted and appealed.
Perry & Kittrell, of Henderson, for appellee.
A A. Bunn, of Henderson, for appellant Rushia W Watkins.
The inchoate right of dower is a mere expectancy or possibility standing upon the same footing with the expectancy of heirs apparent or presumptive before the death of the ancestor except that the wife's expectancy may not be defeated by the husband without her consent. Upon the death of the husband the widow's right of dower becomes consummate. It is then a fixed and vested right of property in the nature of a chose in action--the right to demand an assignment of dower. After assignment she becomes a life tenant of the property assigned. "Every married woman, upon the death of her husband intestate *** shall be entitled to an estate for life in one-third in value of all the lands, tenements and hereditaments whereof her husband was seized and possessed at any time during the coverture." C.S. § 4100. Virginia-Carolina Chemical Co. v. Walston, 187 N.C. 817, 123 S.E. 196; Holt & Sons v. Lynch, 201 N.C. 404, 160 S.E. 469; Creech v. Wilder, 212 N.C. 162, 166, 193 S.E. 281; 19 C.J. 593, Section 410. She has the usual title and rights, subject to the usual burdens, incident to a life estate. It is subject to be sold under execution, to assessment for taxation, to forfeiture for waste, and the like.
The seizin of a widow of the lands allotted to her as dower is considered as a continuation of her husband's, as derived from him and not from the heir. 9 R.C.L. 594. A widow's life estate by virtue of her dower right is nothing more than an elongation of the husband's estate. Everett v. Newton, 118 N.C. 919, 23 S.E. 961.
The statute, C.S. § 3233, provides that whenever it appears by satisfactory proof that an actual partition of the lands held by tenants in common cannot be made without injury to some or all of the parties interested, the court shall order a sale of the property described in the petition. In commenting upon this statute it is said in Barber v. Barber, 195 N.C. 711, 143 S.E. 469, 470: An admission in the pleadings that an actual partition of the lands cannot be made without injury to some or all of the parties interested eliminates the necessity for further proof of the fact. When such admission is made in the pleadings the owner of an undivided interest is entitled as a matter of right to partition of said land to the end that he may hold and enjoy his said interest in severalty, and the court is authorized and empowered by statute, C.S. § 3233, to order a sale of such land to the end that he may have such partition without injury to himself and to other parties to the proceedings, which would, upon the admission, result from an actual partition. He cannot be denied his rights because of interests which others claim in the property. Barber v. Barber, supra. This right is paramount.
The owner of an undivided interest in land cannot be denied his right to have a partition, or sale in lieu of partition, because of interests which others may own in the common property. Barber v. Barber, supra. "Where the land or the interests are such that partition cannot be actually had by division, the fact that one of the parties has only a life interest does not prevent its being sold for partition, since the interests of the remainderman need not be thereby endangered." 12 A.L.R. 646. The seizin of a husband who acquires title to land as a tenant in common is subject to the paramount right of his co-tenants to demand partition; and therefore his wife's right of dower in such land is subject to be defeated by a sale of such land in proceedings instituted by one of the co-tenants for a partition. 19 C.J., page 520.
Under the doctrine of equitable conversion, dower may be recovered from the cash produced by the sale of real estate. This occurs when the land has been sold under some right or claim which is superior to the rights of both husband and wife, but which does not affect the wife's right as against her husband and his heirs. 17 Am.Jur. page 685. The right of dower is not paramount to the right in the husband's co-tenants to compel a partition; nor does it interfere with his authority to make a voluntary partition. 17 Am.Jur. 691.
Partition may be brought by a tenant in fee of one moiety against a tenant for life of the other moiety, under the statute of Henry VIII, 2 Lester, 1015. And such is the received doctrine at this day. McEachern v. Gilchrist, 75 N.C. 196.
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