#### CATHERINE E. WATERS, Widow, v. W. H. WATERS et al., heirs-at-law of Jesse E. Waters.

(Decided December 22, 1899.)

Dower — Seizin of Husband.

In a petition for dower it is incumbent on the widow, by proper evidence, to show seizin in the husband during coverture and summons 'served on the heirs.

PetitioN EOR Dower, tried upon transfer from the Clerk to term, before Adams, J., at June Special Term, 1898, of Sampson County.

The petition states that the husband of petitioner died in April, 1890, and the widow testified that her husband died in 1890.'

It seems that the evidence as to title was a contract of assignment made by an instrument in writing’, and under seal, between her and a portion of the prospective heirs, dated November 14, 1889, which was read in evidence by the defendants, together with a lease by the widow made to one of them in 1891, in'the part assigned her.

The jury responded, “Yes,” to the following issue:

1. Was the plaintiff and Jesse E. Waters married, and did they live together on the lands set out in the complaint, and *591was Jesse E. Waters seized and possessed of tbe lands recited in tbe complaint, during tbeir coverture ?

Judgment for plaintiff. Defendants except and appeal.

Messrs. Stevens & Beasley, for appellants.

Messrs. J. D. Kerr, and Geo. K. Butler, for appellee.

ClaRk, J.

Tbis is a proceeding by tbe widow begun before tbe Clerk to procure allotment of dower. Tbe defendants, lieirs-at-law of tbe husband, answered, denying that be was seized at any time during coverture of tbe land described in tbe complaint, and also pleaded forfeiture of dower rights by reason of adultery. Upon tbe trial in tbe Superior Court, tbe plaintiff, (probably to estop tbe defendants as to the plea of non-seizin) introduced a witness who testified that be was present when tbe widow and heirs-at-law agreed upon an assignment of dower, that be made tbe survey and wrote tbe deed, which was executed by tbe beirs-at-law and registered; tbe deed was introduced, also a subsequent lease of said dower land executed by tbe plaintiff. When tbe plaintiff rested, tbe defendants saw tbeir opportunity, and moved for judgment because, having agreed to actual assignment, Code, sec. 2110, tbe plaintiff was estopped to claim dower by assignment of law. Tbe plaintiff then asked to withdraw tbe deed and lease, which tbe Court allowed, and tbe defendants excepted.

Tbe withdrawal of tbe evidence was a matter within tbe discretion of tbe Court. Wilson v. Manufacturing Co., 120 N. C., 94; Crenshaw v. Johnson, Ibid, 270. But why tbe defendants objected to the withdrawal is difficult to see, since the evidence of tbe plaintiff’s witness was left standing, that there bad been an assignment of dower by deed, and tbe withdrawal of the paper prevented any inquiry as to any defect in tbe deed.

*592But tbe matter did not stop here,for tbe defendants reintroduced the deed and lease, and asked tbe Court to instruct tbe jury that tbe plaintiff could not recover. This was refused, presumably upon the ground of defective execution by some of tbe parties. This would have raised the question whether tbe plaintiff was not barred of dower as to tbe heirs-at-law who properly executed the deed, but it is unnecessary to consider it, for the Court then submitted tbe following issues to tbe jury, to which the defendants excepted:

“1. Were the plaintiff and J. E. Waters married, and did they live together on the land set out in the contract, and was <T. E. Waters seized and possessed of the land described in the complaint ? Answer. Tes.

“2. Is J". E. Waters dead? Answer. Yes.”

There was no issue raised by the pleadings as to the marriage or the death of the husband, and the mingling of several matters in one issue, much of which was admitted by the defendants, was calculated to mislead the jury. And, certainly, if tbe deed was not sufficiently executed by the infant and feme covert defendants so as to estop the plaintiff under The Code, sec. 2110, it could not operate as an admission by them of seizin in the husband. In other words, if the deed between thé plaintiff and some of the defendants was valid, a's to them, she is barred, and if, as to the otherSj it is invalid by reason of infancy and coverture, then certainly the plaintiff, as to them, has shown no seizin of the land in the husband, for she has shown it in no other way, and it was incumbent upon her to show it, for it is denied in the answer.

The question was earnestly argued before us that the defendants could not set the deed up as an estoppel because not pleaded in the answer. Neither did the complaint state that the defendants were estopped to deny title. But aside from the fact that but for the deed there is nothing to show title in *593the husband, which the plaintiff is called on to prove, the deed when offered by the defendants was not excepted to by the plaintiff, and, if it had been, we could not notice the exception, for the plaintiff is not appealing. The evidence being in, the Court, might even, after judgment, in its discretion, have allowed the answer to' be amended to conform to the proof. Code, sec. 273.

As the case must go back for a new trial, the court below will have the power to permit amendments of both.the complaint and the answer, and counsel on both sides will doubtless consider with more care the effect of their “moves” and “counter-moves” before they are made.

¡Slew trial.