Opinion
June Term, 1824.
A levy on land was made before the death of the owner; dower was afterwards allotted to the widow in the land, and afterwards the sheriff conveyed to the purchaser at his sale: Held, that the widow could not have dower, because the sale related back to the levy or teste of the writ.
EJECTMENT. James McCabe was in his lifetime seized in fee simple of the premises described in plaintiff's declaration, and, being so seized, judgment was obtained against him at January session, 1820, of TYRRELL County court. On this judgment execution issued, bearing teste of that term, was levied by the sheriff upon the premises on 20 January in the same year. In February following James McCabe (79) died intestate, and on 29 March the land was sold by the sheriff to James Hoskins at public sale to satisfy the execution, and in September, 1823, the sheriff executed a deed of conveyance to Hoskins therefor. Afterwards and before the action brought, Hoskins conveyed to one Tarkinton, and Tarkinton to the lessor of the plaintiff. The defendant is the widow of James McCabe, and she, after the death of her husband, before September, 1823, exhibited her petition for dower in the county court of Tyrrell, and part of the land above mentioned was duly and properly allotted her for her dower, and of that part, and no other, she is in possession. These facts were found subject to the opinion of the court: if it should be that the land was subject to the defendant's dower, then the verdict to be set aside and nonsuit entered; otherwise, judgment to be rendered for the plaintiff.
Badger, J., who presided, was of opinion for the defendant on the matter reserved, and directed the verdict to be set aside and a nonsuit entered, whereupon the plaintiff appealed to this Court.
I think, in this case, the widow is not entitled to dower. The levy on the land was made before the death of the husband, and when the sale was made by the sheriff it related back to the levy on teste of the writ.
The reasons given by Judge Haywood, in Winstead v. Winstead, 2 N.C. 243, are in my opinion, in point and unanswerable, and to them I beg leave to refer.
And of this opinion was Judge HENDERSON.