Opinion
(December Term, 1849.)
1. Where a deed has been executed and delivered, and the donor, without the consent of the donee, obtained possession of it before it is registered, and suppresses it, the donee is entitled to call upon the donor for a conveyance of the legal estate.
2. When a case is made out between defendants by evidence arising from the pleading and proofs between the plaintiff and the defendants, one defendant may insist that he shall not be obliged to institute another suit against his codefendant for a matter that may then be adjusted between them.
3. The widow of a man to whom a deed for land had been delivered, but from whom it had been abstracted before its registration, has a right to her dower in such land, the husband having an incomplete legal title; but to receive her dower she must apply to a court of equity.
4. A freeholder cannot now be disseized of his seizin but by a dispossession aided by the act of law, which takes away his right of entry. Therefore a disseizin, in this State, can only be a dispossession and a continued adverse possession for seven years under color of title.
CAUSE removed from the Court of Equity of MOORE, at Spring Term, 1849.
Winston and Strange for plaintiff.
Person and Iredell for defendants.
The plaintiff is the widow of one Thomas Tyson. They were married in 1834, and the infant defendant, Elizabeth Tyson, is their only child. He died intestate in 1835. About the time of their marriage, Josiah Tyson, his father, purchased the tract of land described in the bill, containing 124 acres, from one McKinzie, and had the deed made to his son, who took possession and lived upon the land with his wife for some time, and then left the State, enlisted in the army, and died in 1835. After he left, the plaintiff continued to live upon the land until (330) some time in 1834, when the defendant Harrington took possession and has held it ever since. The deed to Thomas Tyson was not registered, and, after he left the State, his father contrived to get it from the plaintiff and destroyed it, and then procured McKinzie to execute a deed to him, which is duly registered; and in 1834 he executed a deed for the land to the defendant Harrington, his son-in-law, who thereupon took possession against the will of the plaintiff. The bill alleges that the defendant Harrington took the conveyance from Josiah Tyson without consideration and with notice of the rights of Thomas Tyson and those claiming under him. It recites that in 18.. The plaintiff filed a bill against Josiah Tyson and the infant defendant, and upon the hearing it was decreed that the said Josiah Tyson convey to the infant defendant as heir of Thomas Tyson, and that dower be assigned to the plaintiff, his widow (the case is reported 37 N.C. 137), and the plaintiff avers that at the time she filed her bill against the said Tyson she had no notice of the conveyance to the defendant Harrington, but believed he had taken possession as a tenant at will of said Josiah. The prayer is that the defendant Harrington convey to the infant defendant, Elizabeth, and that the plaintiff's dower be assigned.
The defendant Harrington alleges that he is a purchaser for valuable consideration, without notice, and that the conveyance was made to him before the plaintiff filed her bill against Josiah Tyson. The infant defendant submits her rights to the protection of the Court.
The conveyance to the defendant was made (331) before the plaintiff filed her bill against Tyson. He is, therefore, not concluded with the decree in that case nor affected by it in any manner, except so far as it may be an authority upon the questions of law decided, like any other cause.
There is no proof that the defendant paid a valuable consideration for the land, and it is known that at the time he took the conveyance he had full notice of the rights of Thomas Tyson. Upon the authority of Tolar v. Tolar, 16 N.C. 456; Morris v. Ford, 21 N.C. 23, and Tyson v. Tyson, 37 N.C. 137, the heir of Thomas Tyson is entitled to a conveyance of the legal estate. This case differs from Crump v. Black, ante, 321; for here there was a conveyance without value and with notice. There, the conveyance was for value and without notice.
Tyson v. Tyson, is also an authority to show that a decree may be entered in this case in favor of the infant defendant against her codefendant. It is there held that, although courts of equity do not ordinarily decree between codefendants, this case falls within an established exception; for where a case is made out between defendants by evidence arising from the pleadings and proofs between the plaintiffs and the defendants, one defendant may insist that he shall not be obliged to institute another suit against his codefendants for a matter that may then be adjusted between them. We think, therefore, there must be a decree that the defendant Harrington, by proper deed to be approved of by the master, convey the land in fee to the infant defendant, with covenants of warranty against himself and all claiming under him.
It does not, however, necessarily follow that because the heir is entitled to the land, the widow is entitled to her dower; and it is insisted that the plaintiff is not entitled to dower in this case, (332) because her husband had not such an estate as was subject to dower, either at law or in equity, his deed not being registered, and because the husband was not seized at the time of his death, as he was disseized the year before by the entry of the defendant Harrington under the deed of Josiah Tyson. Tyson v. Tyson turned mainly upon the question of fact whether the conveyance of McKenzie had ever been delivered to Thomas Tyson, so as to become a deed; and after deciding that question in the plaintiff's favor, the Court adopted the conclusion that she was entitled to dower almost as a matter of course, and derived her right from the act of 1828, which gives dower in equitable estates. We concur in the conclusion, but we are inclined to the opinion that the right was not a mere equitable one, depending upon the act of 1828, and that the widow of a man who died without having his title deeds registered was entitled to dower because the husband had an incomplete legal title If the deed was afterwards registered, the dower was assignable at law. If it was destroyed, equity gave relief, not upon the idea of a mere equitable estate, but upon the ground that in that court the party was entitled to have the benefit of the legal title which had been lost by spoliation, under the maxim, "That will be considered as dower which ought to have been dower, so as to prevent one from taking advantage of his own wrong." The widow, however, in case of spoliation, as well as the heir, was obliged to apply to a court of equity, and could not proceed at law. Thomas v. Thomas, 32 N.C. 124. In Morris v. Ford, 17 N.C. 418, Judge Gaston, who delivered the opinion in Tyson v. Tyson, supra, says: "The interest of one who has an unregistered deed was liable to be sold under execution before the act of 1812, which subjected equitable estates. He has not a mere equity in the land, but an equity and an incomplete legal title. If he dies before registration, his wife is entitled to dower as of a legal estate." This shows that, although that learned judge in Tyson v. Tyson derived the right from the act of 1828, he did not (333) intend to exclude the other ground, but considered the right, either upon one ground or the other, beyond question. The want of registration, therefore, is no bar to the plaintiff's right of dower; and the remaining question is, was the husband seized at the time of his death? This point was not made in Tyson v. Tyson and is now to be considered for the first time. It depends upon the entry and dispossession made by the defendant Harrington. If that had the effect of putting the seizin in him, then Thomas Tyson was not seized at the time of his death. But if it did not operate as a disseizin, then Thomas Tyson died seized. The question is reduced to this: One having color of title enters and disposseses [dispossesses] the owner; is that a disseizin?
Disseizin is an ouster of the freehold, and is where one enters and turns out the tenant and usurps his place and feodal relation which can only be done by the concurrence and consent of the feodal lord. The latter circumstance distinguished a disseizin from a dispossession. Bl. Com., Coke Lit.; Taylor v. Horde,1 Bur., 60, where Lord Mansfield says: "Disseizin is a complicated fact, and differs from dispossessing. The freeholder by disseizin differs from a possessor by wrong. A disseizin is where the possessor is clothed with the solemnities of the feodal tenure." After a full examination of the question, he says: "Except the special case of fines and proclamations, I cannot think of a case where the true owner, whose entry is not taken away, may not elect to be deemed as not having been disseized. The case is also reported in 2 Smith's Leading Cases, 342. The tenant could not, against his will, be disseized by the mere act of a wrongdoer, as long as he had the right of entry; but if he saw proper, he might elect to consider himself disseized for the sake of a remedy given against disseizors. All the cases of disseizin since Taylor v. Horde, and for many years before (334) probably as far back as Charles II., when the tenant had the right of entry, will be found upon examination to be cases of disseizin at election, and not of actual disseizin. The words, "whose entry is not taken away," are significant, for it is conceded by him, and has never been disputed, that when the owner has lost his right of entry he is then disseized. His words are, "when the right of possession was acquired and the owner put to his real action, then, without doubt, the possessor had got the freehold, though by wrong, and then was a disseizor."The instance put is when a dispossessor remains in possession twenty years, in which case the statute James I. takes away the entry of the owner. The wrong act of the dispossessor, aided by the operation of the statute of James, makes a disseizin in the same way that the wrongful act of the dispossessor, aided by the concurrence of the feodal lord in accepting homage, etc., made a disseizin in the days of strict feodal tenure. The result is that a freeholder cannot now be disseized of his seizin but by a dispossession aided by the act of law which takes away his right of entry; and as, in England, a dispossesion [dispossession] and continued adverse possession for twenty years, under the statute of James, amounts to a disseizin, so, in this State, a dispossession and continued adverse possession for seven years, under color of title, under the act of 1715, amounts to a disseizin. But so long as the owner has the right of entry it is a mere dispossesion [dispossession] and not a disseizin, which Lord Mansfield calls a "complicated fact," and requires the aid of the law or of the feodal lord to complete it. This will explain why the doctrine of a "descent cast," tolling an entry, has become obsolete, although so much is to be met with about it in the old books. Littleton and Coke devote a whole chapter to that "curious and cunning learning." When there was a disseizin, a descent cast tolled the entry, (335) but in modern times there is no disseizin until the right of entry is lost. Hence, a "descent cast" can now have no effect. If the descent be before the right of entry is lost, "the entry is not tolled," because there was no disseizin. If after, then it has no effect, for the right of entry must have already been taken away to constitute a disseizin. In this State, after a possession of seven years under color of title, the law recognizes and concurs in the right of the wrongdoer, and the right of entry on the part of the former owner is taken away. There is then a disseizin, and not before. If a descent is cast before the seven years expire, the entry is not tolled, for there is no disseizin. If after, it can have no effect, for the estate was gone before. This is the reason why the doctrine of descent cast has never been insisted upon in our State since Strudwick v. Shaw, 2 N.C. 5 where it was discussed, but not directly decided, and the profession has quietly given up the doctrine and allowed it to become obsolete. This tends greatly to confirm the position that a dispossession under color of title is not a disseizin until the right of entry is lost by seven years possession.
We conclude, therefore, that Thomas Tyson was seized at the time of his death, in 1835, notwithstanding the entry of the defendant Harrington in 1834, and his continuing in possession under color of title until the said Tyson's death. It must therefore be declared to be the opinion of this Court that the plaintiff is entitled to have her dower assigned as prayed for, and to recover her costs of the defendant Harrington.
PER CURIAM. Decreed accordingly.
Cited: Crump v. Black, ante323; Blackwood v. Jones, 57 N.C. 58; London v. Bear, 84 N.C. 271; Edwards v. Dickinson, 102 N.C. 523.
(336)