Gay v. J. Exum & Co.

• Decision Date: 31 October 1951
• Docket Number: No. 307,307
• Court: North Carolina Supreme Court
• Parties: GAY, v. J. EXUM & CO., Inc.

Page 290

67 S.E.2d 290

234 N.C. 378

GAY, v. J. EXUM & CO., Inc.

No. 307

Supreme Court of North Carolina.

Oct. 31, 1951

Lewis & Rouse, Farmville, for petitioner, appellee.

Geo. W. Edwards and K. A. Pittman, Snow Hill, for respondent, appellant.

DENNY, Justice.

The appellant argues and contends that the mortgagor lost his right to redeem the lands involved herein prior to his death and therefore the widow's right to dower in the equity of redemption was lost when the husband ceased to have an enforceable right to redeem the property. G.S. § 1-47, subd. 4.

In this jurisdiction a widow has the common-law right of dower. G.S. § 30-4. And subject to the provisions of the above statute with respect to certain conduct on the part of a married woman which may be pleaded in bar of any action to have dower allotted, 'every married woman, upon the death of her husband intestate, or in case she shall dissent from his will, shall be entitled to an estate for her 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, * * * she shall in like manner be entitled to such an estate in all * * * equities of redemption or other equitable estates in lands, tenements and hereditaments whereof her husband was seized in fee at any time during the coverture, subject to all valid encumbrances existing before the coverture or made during it with her free consent lawfully appearing thereto.' G.S. § 30-5.

Therefore, under the general rule and our statutory provisions, a widow is entitled to dower in all the lands of which her husband was seized during coverture, unless in the meantime she has voluntarily released same, but her right to dower in lands of which her husband was seized at the time of their marriage, is subject to all subsisting liens legally created by the husband prior to the marriage. G.S. § 30-5; 28 C.J.S. Dower, § 39(a), page 105.

Unquestionably, the husband of the petitioner, John Thomas Gay, had lost his right to redeem the premises in question prior to his death by permitting the mortgagee to remain in possession for more than ten years after his right to redeem accrued, provided the provisions of G.S. § 1-47, subd. 4 had been pleaded in bar thereof. Anderson v. Moore, 233 N.C. 299, 63 S.E.2d 641; Hughes v. Oliver, 228 N.C. 680, 47 S.E.2d 6; Crews v. Crews, 192 N.C. 679, 135 S.E. 784; Bernhardt v. Hagamon, 144 N.C. 526, 57 S.E. 222.

Even so, the loss of the husband's right to redeem by surrendering the possession of the premises to the mortgagee for a period sufficient to bar an action by him for redemption, does not have any greater force and effect upon his widow's right of dower in the equity of redemption than if he had conveyed all his right, title, and interest in such equity of redemption to the mortgagee by deed without the joinder of his wife. Such a conveyance would have passed the husband's interest alone and would not have affected the wife's right to dower in such equity. Aritis v. Artis, 228 N.C. 754, 47 S.E.2d 228; Rook v. Horton, 190 N.C. 180, 129 S.E. 450, 452, 41 A.L.R. 1111; 1 Am.Jur., Adverse Possession, section 93, page 844. The only instance where a husband may execute a conveyance without the joinder of his wife, and pass the whole interest, is where he executes a mortgage or deed of trust to secure the purchase money or any part thereof, of land bought by him. G.S. § 30-6.

It is said in 17 Am.Jur., Dower, ...