Howell v. Parker

• Decision Date: 15 November 1904
• Citation: 48 S.E. 762,136 N.C. 373
• Parties: HOWELL et al. v. PARKER et al.
• Court: North Carolina Supreme Court

48 S.E. 762

136 N.C. 373

HOWELL et al. v. PARKER et al.

Supreme Court of North Carolina

November 15, 1904

Appeal from Superior Court, Stanly County; O. H. Allen, Judge.

Partition proceedings by Julia F. Howell and another against T. S Parker and others. From the judgment entered, defendants appeal. Reversed.

The fact that no memorandum in writing was made at the time of the sale of lands is immaterial, in partition proceedings involving such lands, where the vendor has not pleaded the statute of frauds in such proceedings, and in fact has made the conveyance to the heirs of the purchaser.

R. L Smith and R. E. Austin, for appellants.

Shepherd & Shepherd, L. H. Clement, and J. R. Price, for appellees.

CLARK C.J.

This is a petition for partition filed before the clerk of the superior court of Stanly county. M. B. Howell bought the tract of land in 1885, paid the purchase money in full, and entered into possession as owner, but died in 1889 without having received a deed, which was executed, however, to his heirs at law by the vendor in 1891. Two of the heirs at law subsequently conveyed their two-fifths interest to the defendant Parker, who has two others of the heirs at law as codefendants. Another heir at law and the widow of M. B. Howell are the plaintiffs. It is agreed that at the time of his death, and for several years prior thereto, M. B. Howell resided in Salisbury, Rowan county; that the lands in this action are worth $1,000; and that M. B. Howell died seised and possessed of the following: One house and lot, his usual residence, in Salisbury, worth $1,600; another house and lot, in Albemarle, worth $1,500; and a tract of 144 acres, also in Stanly county, worth $375; that no memorandum in writing was made when M. B. Howell purchased the land; and that no dower has ever been allotted to the widow.

It is immaterial that no memorandum in writing was made at the time of the sale, for the vendor has not pleaded the statute of frauds, and in fact has made the conveyance to the heirs at law of the purchaser. The purchase money having been paid in full, and the purchaser put in possession, he had an equitable estate, which his widow is entitled to have valued in allotting her dower. Love v. McClure, 99 N.C. 290, 6 S.E. 247, 250, and cases cited. But it appears by the facts agreed that the value of all the realty, including the tract in question, amounts to $4,475, and that the residence and lot in Rowan are worth $1,600, being something over "one-third in value" of the realty. As the statute (Code, § 2103) provides, "in which third part shall be included the dwelling house in which her husband usually resided, ***" it follows that the widow has no interest in this tract beyond the right to have its value taken into consideration in estimating the value of the dower to be allotted to her.

It is suggested by counsel that the widow could waive the right to the residence. If that were true, she might elect to take the whole of this tract, but it might well be questioned if a court would permit her to take her dower in the whole or in part of...