| N.C. | Jun 5, 1856
The bill was filed at the Spring Term, 1851, seeking the assignment of dower in a valuable lot in the town of Wilmington. The plaintiff intermarried with her late husband, Marsden Campbell, in the year 1834, and very shortly after that they removed to the State of Louisiana, and have never since returned to North Carolina. On the 18th of October, 1841, Marsden Campbell, the husband, died seized in fee of an equity of redemption to the lot in question. The lot had been mortgaged to one Holmes, in 1834, and at the time of Marsden Campbell's death there was still a balance due on the mortgage debt. This, however, was paid off by the defendant William S. Campbell, the administrator appointed upon the husband's estate in Louisiana; and under a petition filed by the heirs-at-law in the Court of Equity of New Hanover, (to which the plaintiff was not a party,) a sale of the lot (358) in question was made by the clerk and master of that Court to the above named Wm. S. Campbell, at the price of $4000, and he afterwards, in the year 1845, sold the same to the defendant Patrick Murphy, for about the same price.
After the death of Marsden Campbell, and before the sale by the clerk and master, to wit, in 1843, the buildings on the lot in question *297 were burnt and destroyed with fire, and having been insured, the said Wm. S. Campbell, as administrator, received the sum of $4000, as insurance money.
Up to the time of the destruction of these buildings, they were taken possession of and rented by the heirs-at-law.
The bill of the plaintiff sets forth that, shortly after the death of her husband, she enquired of Wm. S. Campbell, in whom she had great confidence, whether she was not entitled to dower in the lot and buildings in question, who assured her that he had consulted a lawyer of respectable standing in North Carolina, and had been advised by him that she was not entitled, and upon that assurance she rested until she was better informed, shortly before the bringing of this suit.
She alleges that her husband died seized of other lands in North Carolina, and possessed of a large personal estate in Louisiana, which have respectively gone into the hands of the heirs-at-law and of the defendant Wm. S. Campbell, the administrator in Louisiana, and that there has not been any administration on the estate in this State.
The prayer is for dower, for an account of the rents and profits, and for a portion of the insurance money.
The heirs-at-law of Marsden Campbell, and Wm. S. Campbell, the administrator appointed in Louisiana, and the purchaser of the lot, Patrick Murphy, are made defendants.
The defendant Murphy alone answered. He insists upon the length of time elapsed between the death of Marsden Campbell and the filing of this bill; he also avers in his answer that he is a purchaser for a fair price, and without notice of the plaintiff's right to dower, and he submits that he is not liable on that account. He also objects that there should have been an administrator in this State who should have been made a party to this suit. Replication, commissions and (359) proofs.
The cause was set down for hearing upon the bill, answer, exhibits and former orders, and sent to this Court by consent. The right of a widow to dower is a legal one, for which there is a remedy at law. But the inconveniences attending assignment at law, the necessity in almost every case for a discovery, by reason of the fact that the title deeds belonged to the heir, and for an account of the mesne profits, when any length of time intervened from the death of the husband to the time of the assignment, gave rise to a convenient *298 jurisdiction in Equity, where complete relief is given; with the exception that, if the title of the plaintiff to be endowed be denied by the answer, that right must be sent to a Court of Law, to be tried by a jury. Curtis v.Curtis, 2 Bro. C. C. 631; Mundy v. Mundy, 2 Ves. 122; Pulteney v. Warren, 6 Ves. 76; D'Arcy v. Blake, 2 Sch. and Lef. 387.
Although our statute (Rev. Code, ch. 118,) gives to the widow a more direct and summary remedy than the writ of dower at common law, there is no reason to suppose that there was an intention to take away the jurisdiction which Courts of Equity had assumed over the subject. On the contrary, the intention was to give a cumulative remedy; so that the widow has an election to proceed in either mode. Indeed, in some cases, the jurisdiction is highly beneficial, if not absolutely necessary, to do entire justice, notwithstanding the remedy given by our statute. The case now before us presents an apt illustration, and shows that the widow was well advised in making her election to proceed in this Court. At the death of the husband, the premises were under mortgage, and her right depended upon our statute giving dower in equities of redemption. Although this circumstance does not prevent the assignment by the summary proceeding at law — see (360)Thompson v. Thompson,
The relief asked for is resisted on several grounds:
1. The "statute of limitations" and lapse of time.
The statute of limitations to a "writ of right" is sixty years; to a formedon, fifty years, (afterwards reduced to twenty); to a writ of entry, thirty years. The writ of dower is in the nature of a writ of right; there is no statute of limitation in regard to it; for the reason, we suppose, that none was thought necessary; for the right ceased at the death of the widow, which would, in most cases, happen before the expiration of sixty, fifty, or even thirty years. The lapse of twenty *299 years raises a presumption of the abandonment of the right of redemption of mortgages, and of other equitable rights, independently of any statute. Our statute reduces the time to ten years. The husband of the plaintiff died in October, 1841; this bill is filed at the Spring Term, 1851; so, the ten years had not expired, and no explanation of this delay is necessary. But if it had been, the allegation of the bill sufficiently account for it. The plaintiff and her husband removed to Louisiana in 1834, and she has never returned to this State. She avers that, as the lot was under mortgage at the time of the death of her husband, being uninformed of the existence of a statute giving the wife dower in an equity of redemption, she was ignorant of her rights until a short time before this bill was filed; that soon after the death of (361) her husband, she asked the advice of William S. Campbell, one of the defendants, who was the administrator of her husband in Louisiana, and in whom she had great confidence, and was told by him that he had taken the opinion of a respectable lawyer in North Carolina, who advised him that she was not entitled; for this reason she failed to prosecute her claim until she was better informed.
In assuming, for the sake of argument, that the ten years presumption would apply to a case like this, we wish not to be understood as affirming it to be so; for the mortgage was redeemed within a few years after the death of the husband, and it may be that would make a difference.
2. The administrator of the husband is a necessary party, and the defendant Wm. S. Campbell, the administrator in Louisiana, has not taken out letters of administration in this State.
The administrator is not a necessary party. The Act which gives dower in equities of redemption, prescribes no mode of proceeding; that is left to be done by the Courts according to legal analogies. In England, if one, prior to his marriage, makes a lease for years, or mortgage, dower is assigned to his wife, subject to the mortgage; and after it is assigned, the course is for the wife to file a bill against the mortgagee, and the personal representatives, and the heirs or devisees of the husband, to have the mortgage redeemed, so as to relieve the land assigned as dower from the incumbrance. This is done by requiring the personal representative to pay the mortgage debt, if there be assets, and there is no other fund made chargeable in relief of the personal estate, which is in general the primary fund for the payment of debts. For the want of personal assets, the widow is entitled to have the mortgage redeemed by the heir or devisee; she agreeing to keep *300 down the interest upon one-third of the mortgage debt, during her life; or to redeem the mortgage herself, and take an assignment, as a security for the principle and interest paid by her, minus the interest on one-third during her life. In this way she is let into immediate (362) possession, and in enjoyment of the land assigned to her. Here is a plain analogy, which it is said, in the case of Thompson v.Thompson, the Courts will adopt. So, in order to have dower assigned, no other party is necessary but the terre-tenant. There afterwards may be a necessity for other proceedings and other parties, unless, as has been the case here, the mortgage be redeemed without suit.
3. The defendant Murphy, relies upon the fact that he is a purchaser for valuable consideration without notice.
Where one has the legal title, and the equities are equal, the law prevails. But, unfortunately for this defendant, the plaintiff has not a mere equity. She has a legal right, which is prior to his, and there is no reason why she cannot assert it.
4. The plaintiff, by sleeping upon her rights, has not only induced the def't. to purchase at a full price, but to erect large buildings, at the cost of $22,000; and it is against conscience for her to claim dower in one-third of the lot, including his buildings.
The consideration does not affect the plaintiff's right to have her dower, but it has an important bearing upon the extent of the relief to which she is entitled. It has this effect at law when the terre-tenant is a purchaser: "If the wife be entitled to have dower of three acres of marsh, every one of the value of twelve pence, the heir, by his industry and charge, maketh it good meadow, every acre of the value of ten shillings, the wife shall have her dower according to the improved value, and not according to the value as it was in her husband's life-time; for her title is to the quantity of the land, viz: one just third part. And the like law it is if the heir improve the value of the land by building. And, on the other side, if the value be impaired in the time of the heir, she shall be endowed according to the value at the time of the assignment, and not according to the value as it was in the time of her husband." Co. Lit. 32a, 32 b. Upon which is the following note from Lord Hale's MS., (n. 8): "If feoffee improve by buildings, yet dower shall be as it was in the seizin of the husband, (17 H. 3, Dower 192; 31. Ed. 1 Voucher 288,) for the heir is not bound to warrant, except according to the value as it was at the time of the feofment; (363) and so, the wife would recover more against the feoffee than he could recover in value; which is not reasonable." This *301 authority is decisive. It must be declared to be the opinion of the Court that the plaintiff is entitled to recover from the defendant Murphy, the interest upon one-third of the sum for which the lot was sold at the sale, made by the clerk and master mentioned in the pleadings, to wit, $4000, from the date of that sale up to the taking of the account; and also, interest upon such third part of the purchase-money, to be paid annually, up to the time of her death, for which the plaintiff will have a lien upon the premises as security, unless she elects to take the bond of the said Murphy, with approved sureties, in lieu thereof; or the plaintiff may elect to take a decree for such part of the purchase-money aforesaid, absolutely, with interest from the date of the sale, as is equal to the value of her life-estate in one-third part thereof; as to which there may be a reference. The plaintiff will, thereupon execute a release of her right to the defendant Murphy, and all claim for mesne profits during the time he has held possession.
5. The other defendants insist that the plaintiff is entitled to no part of the insurance money. This point is settled against them. Graham v.Roberts,
6. These defendants insist that they are not chargeable with (364) the rent received by them for the house, from the death of the husband up to the time it was burnt.
There was no judgment for damages in a writ of right, or a writ of entry, or a writ of dower at common law, on the ground that the terre-tenant, during the time he was seized, had performed the feudal services. Damages were given against a disseisor by statute in an assise ofnovel disseisin; and damages are given to the widow by the statute of Merton in a writ of dower unde nihil; but it has been long settled that, in Equity, a widow is entitled to an account of the mesne profits, from *302 the death of the husband up to the assignment of dower. Indeed this was one of the grounds upon which that Court assumed jurisdiction. See Park on Dower.
There must be an account of the mesne profits which were received by the defendants, or any of them.
Per curiam.
Decree accordingly.
Cited: Caroon v. Cooper,