Opinion
June Term, 1824.
A. conveyed, by deed of trust, his real estate to trustees to satisfy creditors, and, continuing in possession, died. His widow is not entitled to dower therein.
EJECTMENT, tried before Paxton, J., at WAKE. On the trial of this cause it appeared that on 18 November, 1820, Robert Parsley of Wake County was seized in fee simple in possession of the lot of ground and improvements in the declaration mentioned; and on that day he executed a deed to the lessor of the plaintiff in fee, in trust, to secure and pay certain debts therein mentioned, as due to third persons who were parties to the deed, which deed was duly proved and registered in the register's office of Wake County; and it further appeared that the said Robert Parsley continued in the possession of the said lot up to the time of his death, which happened on the ______ day of March, 1821; and that the defendant is his widow and relict, and that she, after his death, instituted proceedings in Wake County court for her dower in the said lot and premises at August court, 1821; whereof notice was given to the administrator of Robert Parsley, but no notice whatever to the lessor of the plaintiff, or to the heirs at law of the said Robert; and at August session aforesaid of said court it was ordered that a writ of dower issue; whereupon a writ of dower issued to the sheriff of Wake County, who proceeded to impanel a jury, which assigned to her the premises in dispute as her dower, and made due return thereof to the November sessions, 1821, of the county court of Wake, when their report was by said court ordered to be confirmed; and, besides, it further appeared that the debts and money mentioned in the deed to the lessor of the plaintiff remain unpaid and are fully due.
Gaston for appellant.
Ruffin contra.
Upon all which the defendant's attorney moved the court to (126) instruct the jury "that the defendant was entitled to dower in the said lot and premises, and that the same had been properly assigned to her, and, therefore, the plaintiff could not recover in this action the said premises mentioned in the said assignment of dower of which the defendant admitted herself in possession"; which instruction the court refused to give, and the jury thereupon rendered a verdict for the plaintiff, and the court gave judgment accordingly.
The defendant thereupon moved for a new trial upon the ground of the court's refusal to give instructions as above required, which was refused, and the defendant appealed to this Court.
Laws 1715, ch. 7, points out the mode by which conveyances for land shall be made, and declares that when so made they shall be good and available in law, without livery of seisin, attornment, or other ceremony in the law whatsoever. By sections 2 and (147) 3 provision is made for the registration of deeds made before that time, and also for deeds made in foreign parts, and such deeds are declared valid; sections 7 and 8 regulate the registration of mortgages, and take away the equity of redemption from a second mortgagor; section 9 declares that the widow of a mortgagor shall not be barred of dower who did not legally join with her husband in such mortgage.
I cannot perceive the object that this latter clause was intended to answer, because without it widows of mortgagors who had not joined with their husbands would have been entitled to dower as much as widows would have been who had not joined with their husbands in other conveyances pointed out by the act as valid for the purpose of passing lands. It seems, however, not to have a prospective operation; the expression is, "who did not join with her husband in such mortgage," it, therefore, can have no bearing upon the present question. At that time, and since, up to 1784, widows were entitled to dower. in lands of which their husbands were seized at any time during the coverture. The act passed in that year (New Rev., ch. 204) makes a great alteration in the rights of dower. That act declares (sec. 8) that widows shall be entitled to one-third part of all the lands, tenements and hereditaments of which her husband died seized or possessed. It seems to be somewhat difficult to understand what, ex vi termini, the Legislature intended by the word possessed; because it is (148) difficult to imagine a case when a widow would be endowed of a possession only. If it be considered as synonymous with seized, and tautologically inserted, there is no difficulty.
It has been argued that it comprehends the case of possessions of mortgagors who die before foreclosure, as in the present case. I cannot adopt that construction of the act, because I think the act of 1715, relative to mortgages, not to be in force, and because I cannot think that the widow of a mortgagor who has parted with his title to the land is in a better situation than the widow of a person who made a clear conveyance of his land. In either case the grantor does not die seized of the land, and I conceive the Legislature never intended to give dower of a possession of land when the seizin was adversely in another person. Here it is so, and it is placed so by the husband's intent, to answer another purpose after his death, inconsistent with dower.
It is true, in the act of 1715, ch. 4, sec. 6, the Legislature consider a widow entitled to dower of lands which her husband had entered in his lifetime, but for which he had taken out no grant; but in that case it will be seen that there is no adverse seizin, and that case is one sui generis.
There is some color for the belief that in the act of 1715, ch. 2, the Legislature used the word possession as synonymous with the word seizin, when they speak of a seven years possession under a defective or colorable title as giving a right; and such continued possessions ripening into title, although called possessions, are in fact the titles to the land; but naked possession, even held under a trust, will not give dower. By the act of 1791, also passed for quieting ancient titles and limiting the claim of the State, it is declared that twenty-one years possession under colorable title should be a bar against (149) the State, but that possession is the title to the land, and is used as amounting to the same thing as if they had said, seized of the land. In my opinion, there is no ground whatever for saying that the defendant in the case before us is in law entitled to dower.
TAYLOR, C. J., and HENDERSON, J., concurred.