16 S.E. 415 | N.C. | 1892
The defendant resisted, among other reasons, because the plaintiffs could not bring their action in their own name; the right of dower being only a thing in action the widow was a necessary party. The court overruled their demurrer, and they appealed.
The plaintiffs once sought to obtain the relief which they pray for in their complaint by means of a special proceeding *271
instituted before the clerk of the Superior Court of Haywood. That proceeding came before this Court, and the demurrer filed by the defendants to the petition was sustained (
1. Is the widow, plaintiff's assignor, a necessary party to this action? We think she is. "Before the assignment of her dower a widow is not seized of any portion of the real estate of her husband, and cannot, therefore, convey any title at law to it. She can, however, make such a contract concerning it as equity can and will, under proper circumstances, enforce. This bill substantially is to compel the heirs to allot the dower, and then that the widow shall convey the land so allotted."Potter v. Everitt,
2. Are the heirs at law or devisees of S. P. Owen, defendant's vendor, necessary parties? If it was alleged in the complaint that the lands described therein were all the land of which the widow was entitled to be endowed, we might be inclined to answer this question in the negative. But, in the absence of such averment, we must assume that there are other lands, and such being the case, the heirs at law must be brought in, in order that, by this one action, may be conclusively settled and determined all questions concerning the dower rights of the widow, and the plaintiffs' rights against her, by reason of her conveyance to them, treated as a contract to convey to them such portions of each tract as may be assigned to her under the orders made in this action. The Code, sec. 2112, declares that, in special proceedings for assignment of dower, "the heirs, devisees and other persons in possession of, or claiming estates in the lands, shall be parties"; and by section 189 it is enacted that "when a complete determination of the controversy cannot be had without the presence of other parties, the court must cause them to be brought in." When the widow and heirs at law or devisees are brought in, a complete determination of this matter may be had in this civil action, and all parties interested in the assignment of dower be concluded by the final judgment or decree which shall be made. *272
We do not think it was necessary to allege in the complaint when the marriage took place. Proof of that fact will be required if the widow's right of dower is denied. And we think it is sufficiently alleged in the complaint that defendants claim under S. P. Owen.
REVERSED.
Cited: Drewry v. Bank,
(432)