Wood v. Sugg

• Decision Date: 31 October 1884
• Citation: 91 N.C. 93,49 Am.Rep. 639
• Parties: JONATHAN WOOD and others v. GEORGE W. SUGG.
• Court: North Carolina Supreme Court

91 N.C. 93

49 Am.Rep. 639

JONATHAN WOOD and others

v.GEORGE W. SUGG.

Supreme Court of North Carolina.

October Term, 1884.

OPINION TEXT STARTS HERE

SPECIAL PROCEEDING heard at July Special Term, 1884, of GREENE Superior Court, before MacRae, J.

This was a proceeding for sale of land for partition, commenced before the clerk and transferred to the superior court for the trial of issues raised by the pleadings. The facts disclosed by the evidence are as follows:

Jonathan Wood died in 1862, leaving a will by which he devised his entire estate, real and personal, to his wife Emily J. Wood, now Emily J. Lee, during her natural life or widowhood, and then over to his children. His widow qualified as administratrix c. t. a., and administered the personal estate without appropriating any of it to her individual use. She remained in possession of the house and lot in controversy for many years, and then rented it out and received the rents and profits until she sold her interest in the house and lot to Sugg & Exum by deed on February 23d, 1881, and on March 23d, 1883, said Exum sold his interest in the same to the defendant Sugg, who, on February 23d, 1881, also purchased two of the children's shares in said land, the plaintiffs being the only other children, owning one share each as tenants in common, subject to the estate of the said widow.

The said Emily J. Wood, widow, on June 17th, 1866, intermarried with her present husband, Thomas J. Lee, and after said marriage, by proper proceedings, had dower assigned to her, covering the whole of the lot now in controversy. The said land was once sold for taxes and bought in by one Freeman, who was the agent of said Emily J. to rent out the said land. He retained the rents until he was repaid the amount of taxes which he had paid, and then the said Emily J. got the land back. It is not stated in the testimony whether any deed passed to Freeman for said land, or from Freeman to said Emily J. after he was reimbursed as aforesaid.

The defendant is in possession and resists a sale for division on the ground that plaintiffs cannot have the same in the life-time of said Emily J. Lee, whose estate and possession he now has.

The plaintiffs' counsel asked His Honor to instruct the jury that the said Emily, after enjoying the house and lot during her widowhood, was not after marriage entitled to have dower assigned in the same property. The judge declined this instruction, and rendered judgment on the verdict in favor of defendant, holding that plaintiffs could not in law have a sale for partition in the life-time of said Emily J. Lee, and the plaintiffs appealed.

There were several issues submitted to the jury, one of which was--“Did Emily J. Wood have dower assigned to her on the land described in the pleading? to which the jury responded, “yes.”

Messrs. Faircloth & Allen and Geo. M. Lindsay, for plaintiffs .

Messrs. H. F. Murray and W. C. Munroe, for defendant .

ASHE, J.

The plaintiffs contend in the court below that Emily J. Wood, the widow of the testator, Jonathan Wood, by her marriage had forfeited her dower, and requested the judge so to charge. In this court they contended that the widow had lost her right of dower by not dissenting from the will of her said husband within six months after the probate thereof, but this point does not seem to have been taken below, and therefore is not the subject of consideration here.

But to give the plaintiffs the benefit of both their contentions, they cannot avail them.

The record shows that the widow Emily, after her marriage with her present husband, Thomas J. Lee, filed her petition for dower in the lands of her first husband, and the land in controversy was assigned to her as dower. The plaintiffs were the children and heirs-at-law of her said husband, Jonathan Wood, and claim that, after the determination of the freehold interest of said Emily by her second marriage, they have a right to the immediate possession of the land as tenants in common with the defendant Sugg, who, by purchase from two of the heirs, was seized with two undivided shares in the same.

But the defendant insists that there never has been any determination of this life estate of said Emily; that by purchase from her he is the owner of her interest, and that the plaintiffs are only entitled to two undivided shares of land in remainder, after the death of Emily J. Lee; and having no seizin or right of possession, they are consequently not entitled to a partition or sale of the land for the purpose of partition. This position taken by defendant, we think, constitutes a valid defence to the plaintiffs' petition.

Upon the issue submitted to the jury--“Did Emily J. Wood have dower assigned to her on the lands described in the pleadings? the jury responded in the affirmative. We must therefore assume that the proceedings in dower were had regularly according to the practice of the court, and that the plaintiffs who are heirs-at-law were parties to the proceeding. Wade v. Dick, 1 Ired. Eq., 313. When that is so, they are estopped by the judgment in the proceeding for dower. The decision in Gay v. Stancell, 76 N. C, 369, is conclusive upon this point. There, it is held that “where a fact has been decided in a court of record, neither of the parties shall be allowed to call it...