Rose v. Rose

• Decision Date: 31 January 1869
• Citation: 63 N.C. 391
• Court: North Carolina Supreme Court
• Parties: WINNIFRED A. ROSE v. ROBERT F. ROSE.

63 N.C. 391

WINNIFRED A. ROSE

v.ROBERT F. ROSE.

Supreme Court of North Carolina.

January Term, 1869.

Where the wife's right to dower in all the lands of which her husband was seized during coverture, by virtue of the act of March 2nd 1867, had attached before the execution of a deed of trust, Held, that, as the bargainor took by act of the husband and claimed under him, the land was subject to the wife's right of dower, even although the deed was made to secure a pre-existing debt.

If the bargainor had come in by act of law, as purchaser at Sheriff's sale, under an execution against the husband, the question of the constitutionality of the act of March 2nd 1867, in regard to pre-existing debts, might have been raised.

PETITION for DOWER, heard by Fowle, J., at Fall Term 1867, of the Superior Court of WARREN.

The plaintiff as widow of one William P. Rose, filed her petition against the defendant at Fall Term 1867, praying for dower in the land, as that of which her husband had been seized during coverture.

The defendant claimed the land by virtue of a deed of trust executed to him by the intestate March 25th 1867, and registered on the same day. The deed was made to secure a bond executed by the intestate as principal, and the defendant as surety. The petitioner claimed dower by virtue of the act of March 2nd 1867, entitled “An act restoring to married women their common law right of dower,” which the defendant insisted was unconstitutional and void, so far as the said deed of trust was concerned; that being a deed to secure a debt contracted before its passage.

The case was submitted to the judgment of the Court upon the above facts agreed.

Judgment for the plaintiff; from which the defendant appealed.

Eaton & Barham, for the appellant .

W. A. Jenkins and Phillips & Battle , cited 2 Pars. on Cont. 704, n. (b.), Ib. 705, and cases cited in n. (f.), Morse v. Gould, 1 Kern. 281; Rockwell v. Hubbell, 2 Doug. (Mich.) 197; Bronson v. Kinzie, 1 How. 311; Planter's Bank v. Sharp, 6 How. 301, 330; Potts v. Blackwell, 4 Jon. Eq. 58.

PEARSON, C. J.

At common law, a widow was entitled to dower in all the land, of which her husband was seized at any time during the coverture, of such an estate of inheritance, she might have had a child capable of inheriting.

The statute under consideration, restores to married women their common law right of dower; it was ratified 2nd March 1867. The deed, under which the defendant claims, was executed 25th March 1867. So the right of the plaintiff to have dower in the land had attached, before the defendant acquired title, and we can see no reason...