Rook v. Horton

• Court: North Carolina Supreme Court
• Writing for the Court: VARSER, J.
• Citation: Rook v. Horton, 129 S.E. 450 (N.C. 1925)
• Decision Date: 30 September 1925
• Docket Number: 95.
• Parties: 190 N.C. 180, 41 A.L.R. 1111 v. HORTON. ROOK

129 S.E. 450

190 N.C. 180, 41 A.L.R. 1111

ROOK v. HORTON.

No. 95.

Supreme Court of North Carolina

September 30, 1925

Appeal from Superior Court, Vance County; Devin, Judge.

Petition by Mrs. L. R. Rook against Mrs. W. R. Horton for the allotment of dower rights in land occupied by defendant. From a judgment for defendant, plaintiff appeals. New trial.

Ordinary statutes of limitation not applied to dower, unless expressly provided.

W. R Horton, who died July 23, 1924, had only two children, J. J Horton and W. J. Horton, both children of his first marriage. Mary F. Horton, first wife of W. R. Horton, died March 9 1912. Julia May Horton, second wife of W. R. Horton, is the defendant. This marriage took place June 25, 1913. The property in controversy, a lot of land in Henderson, N. C was originally the property of W. R. Horton. March 19, 1904, W. R. Horton conveyed by deed, duly registered in Book 15, p. 536, this lot to his then wife, Mary F. Horton, for life, with remainder in fee to his son, W. J. Horton, in consideration of natural love and affection, and $800 paid by W. J. Horton. W. J. Horton died January 31, 1905, leaving J. J. Horton his only heir at law. September 1, 1913, W. R. Horton deeded this land to Julia May Horton, for life, and this deed was registered March 1, 1915. July 13, 1917, W. R. Horton executed and delivered to defendant a deed in fee simple for the land in controversy, which was registered July 17, 1917.

There was evidence tending to show that W. R. Horton lived on this lot of land with his first wife, and lived with his second wife there until his death, and that she now has possession of this lot. Plaintiff seeks dower as the widow of J. J. Horton. The verdict was as follows:

"(1) Is the plaintiff the widow of J. J. Horton deceased, and was she living with him at the time of his death? A. Yes (by consent).

(2) Has the defendant, Mrs. Julia May Horton, been in adverse possession under colorable title of the land described in the petition for seven years next preceding the institution of this proceeding? A. Yes."

From a judgment thereon in favor of defendant, plaintiff appealed.

J. H. Bridgers, of Henderson, for appellant.

Hicks & Son, Kittrell & Kittrell, Perry & Kittrell, and Thomas M. Pittman, all of Henderson, for appellee.

VARSER J.

Plaintiff's exceptions challenge the rulings of the trial court in holding that adverse possession under color of title for a period of seven years was sufficient to bar the petitioner's right of dower. The other exceptions in the record are either immaterial or necessarily abide the result of this one question.

In questions relating to dower, the widow is not to be considered a creditor or purchaser for value. Pridgen v. Pridgen, 129 S.E. 419, at this term; Haire v. Haire, 141 N.C. 88, 53 S.E. 340; Norwood v. Morrow, 20 N.C. 578. Marriage constitutes a valuable consideration for many purposes, but not with respect to dower. Dower arises, not from the contract of marriage, but from the law, on account of marriage. Husband and wife make no contract with respect to dower or curtesy. Frequently dower is allotted in spite of the husband's previous acts or declarations. Pinner v. Pinner, 44 N.C. 475.

Defendant relies on adverse possession under two deeds from W. R. Horton to her. The first deed attempts to convey a life estate, and the second deed attempts to convey the fee in the lands in controversy. The first deed is dated prior to the marriage of petitioner with J. J. Horton, who was, at that time, admittedly the owner of the fee in the lands in controversy, but this deed was registered after petitioner's marriage. It appears that the defendant is not, under these deeds, a purchaser for value, but that both of these deeds, as recited by the court in its charge, were deeds of gift. The deed executed by W. R. Horton to his first wife for life, and then to W. J. Horton, did constitute W. J. Horton a purchaser for value, for this deed recites a consideration of $800 paid by W. J. Horton. This is an admission by W. R. Horton, the common source. The deeds from W. R. Horton to the defendant could not constitute, in any event, as against J. J. Horton, color of title until registered. Austin v. Staten, 126 N.C. 783, 36 S.E. 338; Collins v. Davis, 132 N.C. 106, 43 S.E. 579.

The defendant relies upon Kluttz v. Kluttz, 172 N.C. 623, 90 S.E. 769, and King v. McRacken, 168 N.C. 624, 84 S.E. 1027. King v. McRacken, supra, establishes the rule under which W. J. Horton becomes a purchaser for value under the admission of W. R. Horton the common source, and Kluttz v. Kluttz, supra, follows Collins v. Davis, supra, limiting the rule that unregistered deeds are not color of title to purchasers for value. It is by virtue of this rule that defendant's deeds from W. R. Horton are not color of title in favor of a disseizor, when the disseizor is claiming under the common source.

Dower is only an elongation of the husband's estate. Graves v. Causey, 170 N.C. 175, 177, 86 S.E. 1030; Everett v. Newton, 118 N.C. 921, 23 S.E. 961; Malloy v. Bruden, 86 N.C. 258; Williams v. Bennett, 26 N.C. 122; Norwood v. Morrow, supra; but when it becomes inchoate it cannot be barred, except as provided by law.

J. J. Horton died in 1922, and this action was instituted in 1924. In no view of the defendant's evidence, viewed in its most favorable light for her, did she and her husband, W. R. Horton, have seven years adverse possession, under color, unless it took place, for the most part, during petitioner's coverture. Defendant asserts that, under the rule announced in Brown v. Morisey, 124 N.C. 296, 32 S.E. 687, adverse possession during the coverture will bar dower. The first vital difference between Brown v. Morisey, supra, and the instant case is that, in Brown v. Morisey, both the marriage and the acquisition of the land were prior to 1856. Then our dower statute allowed the widow to claim dower in the lands "of which her husband died seized or possessed," and now she may seek dower in the lands of which he was beneficially seized at any time during the coverture. However, in Brown v. Morisey, supra, there were two dissents and one concurring opinion. Brown v. Morisey, 126 N.C. 772, 36 S.E. 284 (the same case reheard) held, reversing the former opinion, that adverse possession, while the dower was inchoate, could not constitute a bar. In Campbell v. Murphy, 55 N.C. 360, Chief Justice Pearson states the limitations as to the exercise of the writ of right and writ of dower at common law. It further appears that Brown v. Morisey, supra, has remained an unquestioned authority for 25 years.

On account of the nature of the wife's interest in an inchoate right of dower, she cannot set up her claim to dower during her husband's lifetime. Hughes v. Merritt, 67 N.C. 386; Felton v. Elliott, 66 N.C. 195; O'Kelly v. Wiliams, 84 N.C. 283; Gatewood v. Tomlinson, 113 N.C. 312, 18 S.E. 318; Rodman v. Robinson, 134 N.C. 503, 47 S.E. 19, 65 L. R. A. 682, 101 Am. St. Rep. 877. This rule does not affect her rights in equity for the protection of her inchoate right, as discussed in Deans v. Pate, 114 N.C. 194, 19 S.E. 146; Gore v. Townsend, 105 N.C. 228, 11 S.E. 160, 8 L. R. A. 443, and cases therein cited.

Since the wife may not maintain an action for dower prior to the husband's death, she is not put to her right of action against a disseizor during the coverture, and, therefore, adverse possession by a disseizor with or without color of title, after her marriage, does not bar or affect her right to dower. This rule is recognized practically wherever the widow is dowable as at common law, and as now provided by statute in this state. The reason, upon which seizin in law is as effectual to support dower as seizin in deed, is as stated by Blackstone:

"For it is not in the wife's power to bring her husband's title to actual seizin." 2 Blackstone, 131; Lewis's Edition, 594.

This reason applies with equal force in adverse possession during coverture where she has no right to the possession during the husband's lifetime, and, therefore, could not compel her husband to sue, and she is without power to sue in her own right. 19 C.J. 500; Tiffany on Real Property, 821; Miller v. Pence, 132 Ill. 149, 23 N.E. 1030; Lucas v Whitacre, 121 Iowa, 251, 96 N.W. 776; Williams v. Williams, 89 Ky. 381, 12 S.W. 760, 6 L. R. A. 637; ...