McAfee v. Bettis
| Decision Date | 31 January 1875 |
| Citation | 72 N.C. 28 |
| Court | North Carolina Supreme Court |
| Parties | ADDIE W. MCAFEE v. ALLEN BETTIS. |
The acceptance of a homestead laid off in the lifetime of her husband, by a widow, is no bar to her right of dower in the other lands of her husband, outside of such homestead.
PEARSON, C J: We are inclined to the opinion that a wife has no power to bind herself by a covenant of warranty in a deed which she executes only for the purpose of relinquishing her claim to the homestead, and her contingent right of dower in the land covered by the homestead.
( Watts v Leggett, 66 N. C. Rep. 197, cited and distinguished from this)
PETITION FOR DOWER, heard by Logan, J., at Chambers, in CLEAVELAND county, upon an appeal from the Probate Court of said county, 1st day of June, 1874.
From the case agreed, the following facts, pertinent to the points raised for decision in this Court, appear:
The petitioner was married to L. M. McAfee, of Cleaveland county, in February, 1869, and continued under coverture until his death in September, 1873. During the coverture, the husband was seized in fee of 940 acres of land, save and except so much thereof as had theretofore been allotted as dower to his mother.
The defendant is in possession of said land, claiming title thereto under a sheriff's deed, of date, 8th April, 1872, and conveying the 940 acres above mentioned, and also under a deed from the said L. M. McAfee and wife, Addie W., the petitioner, dated 11th April, 1872, for 142 acres, being the homestead of the said husband and wife, theretofore allotted to them according to law. As a counter-claim to the petitioner's right to dower, the defendant claim $ damages, for a breach of warranty in this latter deed, and prays that judgment may be rendered for the same and declared a lien on plaintiff's right.
The plaintiff demurred to the answer of the defendant, insisting: 1. That the sheriff's deed passed the land to Bettis, subject to her right of dower; and 2. That in the homestead conveyed to him by her and her husband, she claimed no dower.
The Judge of Probate overruled the demurrer, and adjudged against the plaintiff, dismissing her petition with costs, whereupon she appealed to the Judge of the 9th Judicial District. His Honor overruled the decision of the Judge of Probate, and ordered the writ of dower to issue to plaintiff as prayed. From this judgment defendant appealed.
Smith & Strong,, for appellant .
Fowle and Hoke, for petitioner .
The plaintiff claims dower in a tract of land containing about 940 acres, exclusive of the part assigned to the mother of her husband for dower, and exclusive of 142 acres which had been assigned to her husband as a homestead. In 1872, the plaintiff joined with her husband in a deed to the defendant for this 142 acres, their homestead. In 1874, the sheriff, after a sale under execution, made a deed to the defendant for the 940 acres.
The question presented by the case is this: Is the plaintiff, who joined with her husband in a conveyance of the homestead, entitled to dower in the land outside of the homestead and outside of the dower of her husband's mother?
Suppose a man dies, leaving a widow and owning no land except his homestead. The widow has two concurrent rights, her right to the homestead under the act 1...
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Elledge v. Welch, 747
...Article X, Sec. 5, provides that when a husband dies childless and in debt, the widow is entitled to a homestead in his lands. McAfee v. Bettis, 72 N.C. 28; Smith v. McDonald, 95 N.C. Here both prerequisites of this provision of the Constitution have been met. Also, the record discloses tha......
- State v. Hughes