Gay v. J. Exum & Co.

67 S.E.2d 290 (1951)

234 N.C. 378

GAY v. J. EXUM & CO., Inc.

No. 307.

Supreme Court of North Carolina.

October 31, 1951.

*291 Lewis & Rouse, Farmville, for petitioner, appellee.

Geo. W. Edwards and K. A. Pittman, Snow Hill, for respondent, appellant.

DENNY, Justice.

The appellant argues and contends that the mortgagor lost his right to redeem the lands involved herein prior to his death and therefore the widow's right to dower in the equity of redemption was lost when the husband ceased to have an enforceable right to redeem the property. G.S. § 1-47, subd. 4.

In this jurisdiction a widow has the common-law right of dower. G.S. § 30-4. And subject to the provisions of the above statute with respect to certain conduct on the part of a married woman which may be pleaded in bar of any action to have dower allotted, "every married woman, upon the death of her husband intestate, or in case she shall dissent from his will, shall be entitled to an estate for her life in one-third in value of all the lands, tenements and hereditaments whereof her husband was seized and possessed at any time during the coverture, * * * she shall in like manner be entitled to such an estate in all * * * equities of redemption or other equitable estates in lands, tenements and hereditaments whereof her husband was seized in fee at any time during the coverture, subject to all valid encumbrances existing before the coverture or made during it with her free consent lawfully appearing thereto." G.S. § 30-5.

Therefore, under the general rule and our statutory provisions, a widow is entitled to dower in all the lands of which her husband was seized during coverture, unless in the meantime she has voluntarily released same, but her right to dower in lands of which her husband was seized at the time of their marriage, is subject to all subsisting liens legally created by the husband prior to the marriage. G.S. § 30-5; 28 C.J.S. Dower, § 39(a), page 105.

Unquestionably, the husband of the petitioner, John Thomas Gay, had lost his right to redeem the premises in question prior to his death by permitting the mortgagee to remain in possession for more than ten years after his right to redeem accrued, provided the provisions of G.S. § 1-47, subd. 4 had been pleaded in bar thereof. Anderson v. Moore, 233 N.C. 299, 63 S.E.2d 641; Hughes v. Oliver, 228 N.C. 680, 47 S.E.2d 6; Crews v. Crews, 192 N.C. 679, 135 S.E. 784; Bernhardt v. Hagamon, 144 N.C. 526, 57 S.E. 222.

Even so, the loss of the husband's right to redeem by surrendering the possession of the premises to the mortgagee for a period sufficient to bar an action by him for redemption, does not have any greater force and effect upon his widow's right of dower in the equity of redemption than if he had conveyed all his right, title, and interest in such equity of redemption to the mortgagee by deed without the joinder of his wife. Such a conveyance would have passed the husband's interest alone and would not have affected the wife's right to dower in such equity. Artis v. Artis, 228 N.C. 754, 47 S.E.2d 228; Rook v. Horton, 190 N.C. 180, 129 S.E. 450, 452, 41 A.L.R. 1111; 1 Am.Jur., Adverse Possession, section 93, page 844. The only instance where a husband may execute a conveyance without the joinder of his wife, and pass the whole interest, is where he executes a mortgage or deed of trust to secure the purchase money or any part thereof, of land bought by him. G.S. § 30-6.

It is said in 17 Am.Jur., Dower, section 91, page 746: "In those jurisdictions where a wife is entitled to dower in all lands of which her husband is seised at any time during coverture, provided there is no relinquishment of her dower right, the weight of authority holds that no adverse *292 possession against the husband in his life time, however long continued, will bar the wife's dower."

Moreover, a widow is given ten years by statute to petition for the allotment of dower upon lands not in her actual possession following the death of her husband. G.S. § 1-47, subd. 5.

In the case of Rook v. Horton, supra, it is said: "Since the wife may not maintain an action for dower prior to the husband's death, she is not put to her right of action against a disseizor during the coverture, and, therefore, adverse possession by a disseizor with or without color of title, after her marriage, does not bar or affect her right to dower." And her right to dower cannot be defeated or impaired by any act of the husband or by any title emanating from him. 17 Am.Jur., Dower, section 50, page 704, citing numerous authorities.

The reason why the ordinary statutes of limitation do not, unless otherwise provided, apply to dower is well stated in the case of Williams v. Williams, 89 Ky. 381, 12 S.W. 760, 761, 6 L.R.A. 637, where the husband had lost his title to lands by adverse possession. The Court said: "The wife cannot be heard until she becomes a widow; and the law is unwilling to make the silence of a party deprive her of a right when it at the same time forbids her to speak. The statute of limitations is founded upon the idea that if one has a right, and neglects to avail himself of the remedy which the law affords within the time limited, it is to be presumed that he has abandoned the right. It would be unreasonable to divest the wife of her inchoate right of dower for non-action, when she has no power to protect or save it, and is guilty of no laches. If so, she would suffer from silence enjoined by law."

The petitioner is entitled to an accounting from the time J. Exum & Co., went into possession in 1932 until the death of her husband in 1950 for the sole purpose of ascertaining the value of the equity of redemption to which her right of dower attaches, however, upon the ascertainment of the value of the equity of redemption, the widow is entitled to an accounting of the mesne profits from the death of her husband up to the assignment of dower. In re Gorham, 177 N.C. 271, 98 S.E. 717. With this modification, the judgment of the court below will be upheld.

Modified and affirmed.