W. M. Sutton v. . J. A. J. Askew , 66 N.C. 172 ( 1872 )

Reade, J.

The single question is, whether the Act of 1868-’9, restoring to widows, their common law right of dower, i. e. dower in all the lands of which the husband was seized during coverture, prevents a husband from selling lands which he owned before the passage of the act, his marriage having been before the act. If the act has that effect, it must be because it gives the wife an inchoate right to dower, to be consummated upon the death of the husband, she surviving, and of which she cannot be deprived without her consent; for, certainly, before the act, it was never supposed that the husband could not sell his lands at pleasure, without the consent of his wife. If the act has that effect, then her consent in this case to the sale, was a sufficient consideration to support the agreement to give her a part of the sale-money. If the act had not that effect, then her consent was immaterial, and afforded no support to the agreement, to give her a part of the sale-money, and therefore, as against creditors, the transaction was void. It is a dry question of law, and must be so considered; although it is admitted to be one of great importance, and by no means free from difficulty.

Since 1784, and until the act aforesaid, 1868-’69, a widow was entitled to dower in the lands only, of which the husband died seized and possessed, and therefore, but few questions have arisen in our State in regard to dower-rights, and none probably in regard to inchoate dower-rights. But the important change which that Act 1868-’69, made, involves the subject in much uncertainty, and will breed much litigation. What adds to the uncertainty is, that the different States have different laws, in regard to dower, and the decisions in the State Courts are numerous and conflicting. Some of the decisions holding, that acts like ours are retro-active, and others holding them to be prospective, only. And the reasons, which would be proper in one case, are inconsiderately used in the other. Scribner on Dower, a late American work, reviews the statutes and decisions of the different States, and also the English authorities and by judicious comments, has endeavored to produce some order out of much confusion. But, speaking of the inchoate right of dower as property, lie says : “A certain vagueness of expression, uniformly characterizes the discussion of the subject, and, these discussions are commonly attended with unsatisfactory results.” And so, we see, that this great right, favored like life and liberty, instead of being as it ought to be, and as until lately it has been, so plain, that he that runs may read, is now involved in much confusion, by inconsiderate legislation and conflicting adjudications.

It has been much discussed, whether marriage is a contract, or an institution, or a sacrament, or all combined ; and, especially, whether dower results from the contract of marriage, or from the operation of law. Suppose it to result from the contract of marriage, then it is discussed, whether the Legislature can change the law of dower, without impairing the obligation of contracts. Suppose it to result from the operation of law, then it is discussed whether the Legislature can change it without interfering with vested rights, and whether the law cannot change, modify, increase or abolish it. Those who claim to be up with the tíhivalry of the age, and while the Legislatures are liberally enlarging the dower-right, insist, that the Legislature have full power over the subject. But suppose upon some occasion, when the chivalric element may less prevail in legislation, they should curtail, or even destroy the right, how then ? And if the dower-right is so frail that a widow may be deprived of it without her consent, how was her consent to the deed in this case important, even supposing the act to be retro-active; and if not important, then it was no consideration, and, if no consideration, then the contract was void. So that the agreement is suicidal. If the right to dower is at the mercy of the Legislature, to increase or diminish, continue or destroy, then it is nothing — nothing as aright— nothing as property ! We think that this great right, sacred as life, and indispensable to society and the family economy, ought to be more secure, ought to be inviolable, when once it exists, whether it be created by contract, or by operation of law. And we, by no means, subscribe to the doctrine that a right vested by operation of law, is less inviolable than when it arises from contract, when once it exists, no matter how it is inviolable. Nor is it true, that,'in any conceivable case, private property can be taken for public use, or, as is said in this case, for the “paramount public good,” without just compensation.

Our conclusion from what has been said, is, that beiore the the late act, a widow was entitled to dower in such lands as the husband should die seized and possessed of, and in no other; that the right to beso endowed commenced, (whether by the contract of marriage, or by operation of law, makes no difference) at the time of the marriage, but subject to the husband’s power of sale, and contingent upon his not selling it, and upon her surviving him, and that the Legislature could not deprive her of that right, or in any way change it without her consent. The Act of 1868-’69, comes in and changes the law of dower, so as to give the widow dower, not only in all the husband owns at the time of his death, but in all that he owned during coverture, but this act does not affect rights, or marriages, which existed before its passage; they stand as they did before the act, when the husband could sell without the consent of the wife; and, therefore, the consent of the wife, as in this case, was immaterial, and afforded no consideration to support the contract.

We have not overlooked the fact, that the deed in this case does not profess to release the wife’s dower-right, if she has any, or to covenant against the incumbrance of dower; because, under the view which we have presented, it is not necessary. But it would seem, that before the widow can set up her consent as a consideration to support a contract, to give her a part of the sale-money, it ought to appear that she had released her dower-right, or covenanted against the incum-brance j and, qwere, whether in any ease, it could depend upon parol evidence, and whether the contract must not be set out in the deed, and appear to be fair and reasonable *

All this is said, but with little consideration as to the rights of the husband. But has the husband no rights which are entitled to respect, and which the Legislature cannot destroy ! Before the late Act, when a man married, owning land, his his wife had an inchoate right to dower, contingent upon his not conveying it away in his life time, and upon her surviving-him, precisely the same as if it had been conveyed to him by deed from another, with such stipulation and conditions. Suppose it had been so conveyed to him, could the Legislature step in and alter his title, or change the conditions ? No one will so - contend. Well, what matters it how his title was derived, and how the conditions and stipulations came about, so that in fact they existed ? Here then was the simple case of a man owning a tract of land, absolutely and in fee simple, with full, power to sell the same, subject only to the condition, that if he did not sell it, and should die seized and possessed of it, his wife should have dower; and the Legislature steps in and forbids him to sell, compels him to hold it as long as he lives, and gives his wife dower in it, in spite of him. If this be not depriving him of his vested rights, taking his property from him, and giving it to another, under the notion, as is said, of the “paramount public good,” without compensation, then we cannot understand what would be an instance of such a violation of the rights of property.

It would probably bo no great hardship upon the husband, married before the Act, and it would probably not interfere with his vested rights, to allow tiro Act to operate upon all lands acquirer/' after the nassage of the Act, because he would have notice of the incumbrance which would attach, and lie would take it <:r-m on ere. But, as'to this, wo give no opinion.

And so it may be, that in ail cases of marriages since the pasgfvfo of the Act, the wise may refuse to join in íhe conv.'v-anee, unless she is compensated ; and an agreement to give a part of the sale-money for her consent to the sale may be good, her dower-right attaching to all the lands of her husbund, and contingent only on her surviving him; a reasonable probability, and not a mere possibility. And, quere, whether the Legislature, by any subsequent Act, can deprive her of this right. But these questions are not .before us.

II. If the dower-right did not afford a sufficient consideration to support the agreement to give the wife a part of the sale-money, then in the second place, it is insisted, that her homestead right did.

There is this difference in the dower Act, and the homestead Act — the homestead Act, applies only to the homestead, used in the sense of the home, or dwelling house, whether actually set apart or not; or the homestead, after it is set apart, upon proceedings had for that purpose.

The lands in question had not been set apart as a homestead upon proceedings instituted for that purpose, and it is not distinctly stated that they were the homestead or dwelling in the general sense. The case describes them as “two houses and lots, one a store house.” There is nothing in this to indicate that they were the homestead. Nor is there anything to indicate whether the husband did not have other lands, and whether he did have lands which he had used, or which, after this sale, he did not intend to use as a homestead. Nor is it stated whether he was insolvent. Nor is it stated whether he had children. Nor does it appear from the case stated, nor from the deed, nor in any other way, what was the estimate put upon her homestead right. Nor is there any covenant in the ■deed against the. homestead right, nor is there any release. And surely it cannot be, under the most liberal construction of the homestead Act, that the wife is entitled to have her home■stead taken out of every tract of land the husband may own, and may wish to sell! It is true, that by reference to the deed, we find that, in describing the lots, it is said, “one being the house and lot upon which we reside,” and that is all; and whether temporarily or permanently, or whether he had not another which he had adopted, or intended to adopt, as a homestead, is not said. And both lots are put together, and her homestead-right, claimed in one as much as the other. No price being fixed upon either, and no estimate of the value of her homestead.' So that, if, hereafter if she should claim a homestead in other lands, there is nothing in the transaction to estop her, or even to show how much she has received in the way of her homestead-right in this transaction, so as to deduct it from, any subsequent claim. So we think that as the case appears to us, she has made out no homeslead claim, the surrender of which, was a sufficient consideration to support the agreement.

We have not overlooked the fact, that the provisions in the Constitution and in the homestead Act, giving to widows homestead rights, seem not to be precisely the same. The Constitution seems to contemplate that the widow should have a homestead only in the event, that there were no children, while the Act seems to prefer the widow to the children. If there is a conflict in the provisions, it would seem, that the constitutional provision should prevail. ' But we do not decide the question, because, it is not necessary.

There is error. And judgment would be rendered here for the plaintiff, but it does not appear what amount is due from Sessoms so that this opinion must be certified to the Court be- - low to the end that the amount of the indebtedness of Sessoms be ascertained, and judgment for that amount or for so much less as may be necessary to satisfy the judgment of the plaintiff against J. A. J. Askew, be rendered against Sessoms in the Court below.