{ "id": 8650200, "name": "M. H. LOVE et al. v. NANCY L. McCLURE", "name_abbreviation": "Love v. McClure", "decision_date": "1888-02", "docket_number": "", "first_page": "290", "last_page": "298", "citations": [ { "type": "official", "cite": "99 N.C. 290" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "85 N. C., 34", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11276865 ], "opinion_index": 0, "case_paths": [ "/nc/85/0034-01" ] }, { "cite": "4 Dev. & Bat., 442", "category": "reporters:state", "reporter": "Dev. & Bat.", "opinion_index": 0 }, { "cite": "4 Ired., 122", "category": "reporters:state", "reporter": "Ired.", "case_ids": [ 8686624 ], "opinion_index": 0, "case_paths": [ "/nc/26/0122-01" ] }, { "cite": "1 Dev., 208", "category": "reporters:state", "reporter": "Dev.", "case_ids": [ 8687276 ], "opinion_index": 0, "case_paths": [ "/nc/12/0208-01" ] }, { "cite": "13 Ired., 221", "category": "reporters:state", "reporter": "Ired.", "case_ids": [ 11274690 ], "opinion_index": 0, "case_paths": [ "/nc/35/0221-01" ] }, { "cite": "97 N. C., 97", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8649378 ], "opinion_index": 0, "case_paths": [ "/nc/97/0097-01" ] }, { "cite": "63 N. C., 386", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11277519 ], "opinion_index": 0, "case_paths": [ "/nc/63/0386-01" ] }, { "cite": "5 Jones Eq., 80", "category": "reporters:state", "reporter": "Jones Eq.", "case_ids": [ 8684820 ], "opinion_index": 0, "case_paths": [ "/nc/58/0080-01" ] }, { "cite": "2 Jones Eq., 357", "category": "reporters:state", "reporter": "Jones Eq.", "case_ids": [ 8692661 ], "opinion_index": 0, "case_paths": [ "/nc/55/0357-01" ] }, { "cite": "1 Dev. Eq., 195", "category": "reporters:state", "reporter": "Dev. Eq.", "case_ids": [ 11274766 ], "opinion_index": 0, "case_paths": [ "/nc/16/0195-01" ] } ], "analysis": { "cardinality": 585, "char_count": 15401, "ocr_confidence": 0.472, "pagerank": { "raw": 2.3125338810348005e-07, "percentile": 0.7886199156784817 }, "sha256": "9f68dd505fd3e5759be864e660c78d5f694d57d82eb7f6a1ecb1bb924bbf4fbd", "simhash": "1:a0c1429e535afbfa", "word_count": 2802 }, "last_updated": "2023-07-14T20:19:59.259917+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "M. H. LOVE et al. v. NANCY L. McCLURE." ], "opinions": [ { "text": "Davis, J.,\n(after stating the case). In Kirby v. Dalton, 1 Dev. Eq., 195, the widow claimed dower in land purchased but which had not been paid for by her husband, and the title to which had been retained by the vendor as security for the payment of the purchase money. It was there held that the widow was not entitled to dower in her husband\u2019s equities, and that even if she was so entitled (as she now is by statute since enacted) her right would be subordinate to the vendor\u2019s right to have the purchase money paid, but in the case before us it has been found as a fact by the jury that all the purchase money was paid in the lifetime of the husband. If he were living, having paid for the land, the plaintiff could not recover the possession of him; having died, the widow\u2019s possession was a continuation of his, so that neither could J. R. Love, if living, or his heirs at law, he being dead, recover the possession of her. The defence of the widow against the vendor, who had been paid in full, would be the same as that of the husband, if suit had been brought against him, and as no recovery could have been had against him, so none can be had against her. Therightof the widow to dower is a legal right, and is prior to that of the heir. Campbell v. Murphy, 2 Jones Eq., 357.\nShe has the right to have any charge or incumbrance upon the land removed by an application of the personal assets to that purpose. Kluntz v. Kluntz, 5 Jones Eq., 80; Carson v. Cooper, 63 N. C., 386. Her possession is rightful. It is a continuation oi that of the husband.\u2019 It is not adverse to that of the heir. Page v. Branch, 97 N. C., 97; Grandy v. Bailey, 13 Ired., 221; Buffalo v. Newsom, 1 Dev., 208; Williams v. Bennett, 4 Ired., 122.\nWhen the vendee has paid the purchase money for land and died, the widow may institute an action (formerly a bill in equity) against the heirs of the deceased husband and the vendor, or his heirs, if he be dead, to compel a conveyance of the land and assignment of dower to herself. Smith v. Smith, Winst. Eq., (Hinsdale\u2019s Ed.) 581. If being out of possession, she could bring her action to compel the assignment of dower, it\u2019 must follow that being in possession, the equitable title being out of the vendor, he (or in this case his heirs) cannot recover of her.\nIn Norwood v. Morrow et al., 4 Dev. & Bat., 442, it was held that a widow was not bound to await the action of the heirs at law of her deceased husband to regain the possession of land held adversely under a deed from the husband which was void because of an illegal consideration. She could file her petition against the person in possession under the void deed and the heirs of her deceased husband. In that case it is said by Ruffin, C. J., that it is \u201cnot true that the wife gets her dower necessarily from the heir. She claims paramount to the heir. * * * In point of title, her estate does not rise or take effect out of the ownership of the heir or other person making the assignment, but is considered a continuation of that of the husband. * * * She does not require the assistance of the heir, but brings her action against any person who has the freehold, whether that be the heir or any other. * * * That this must be so, is evident when it is recollected that at common law the wife was entitled to dower (as she is now since the statute restoring common law right of dower,) in all the land of which her husband was seized at the time of coverture, and that his conveyance did not defeat the right Consequently she was entitled when the heir had nothing in the land, and therefore she was obliged to assert the right for herself.\u201d\nIf, in this case, the widow were out of possession, and bringing her action against the plaintiff, they would be concluded in equity from setting up their mere legal title against her right to dower; and if so, it must follow, that being equitably in possession, she cannot be required to surrender that possession to persons who have no equitable right to it, and who, if in possession, could be declared trustees as to the legal title, and made to surrender the possession.\nNothing appears in the record except the entry made at July Special Term, 1885, to show that the heirs of William McClure were made parties, or that any answer or other action in the cause was made, or had by or against them. Whether the order to amend the pleadings as shown by that entry has not the legal effect of an actual amendment and does not make them parties, as the intimation in Walton v. Pearson, 85 N. C., 34, would seem to warrant, is not presented by the appeal which is only taken by the widow, but however that may be, for the purpose of her defence, the heirs of her husband are not necessary parties, and we are of the opinion that as against her, she is entitled to the judgment, that the plaintiffs take nothing, &c., and for her costs, and for the refusal to grant the motion for this judgment, there is error.\nError.\nPLAINTIFF\u2019S APPEAL.\nIn addition to the facts stated on the defendant\u2019s appeal, the following is necessary to a proper understanding of the question presented on this appeal:\n\u201cUpon the trial by a jury on the question of the actual payment of the purchase money by William McClure, evidence was offered tending to show actual payment by the defendant. In reply the plaintiffs offered evidence tending to show that the purchase money had not been paid, and offered to show by a witness the declarations of McClure, a son and heir of William McClure, and son of defendant, that the purchase money had not been paid. The defendant objected, and the objection was sustained, and thereupon the plaintiff excepted.\nThere was a vedict finding that the purchase money had been paid.\nThe plaintiff moved for a new trial for the alleged error in excluding their evidence, and for that' the verdict was contrary to the weight of the evidence, and these motions were refused, and the plaintiff appealed.\u201d\nAside from the vagueness of the declarations of McClure, offered to prove a negative, upon the idea, we suppose, that being a son and heir of William McClure, the declarations were against his interests, we are at a loss to see how any declarations of his as to what had not been done by William McClure or any one else can be evidence against Nancy L. McClure. He might have him introduced and examined as a witness and if he knew any fads tending to show that the purchase money had not been paid, his testimony would have been competent, but his dedarations could not be evidence against her. It does not appear where, or under what circumstances the alleged declarations were made. They were in no way connected with the defendant, who claims \u201cunder the law,\u201d as was said in Pinner v. Pinner et al., Busbee, 475, in which one of the defendants and heir of William Pinner sought to defeat the dower of his widow, by asserting title under a deed from her deceased father alleged by the widow to have been made a short time before his death, with the intent to defraud her of her dower, and therefore void, and the declaration of the deceased husband, made about a month before his death, to the effect that he had made the deed to his daughter \u201cfor the land many years ago,\u201d was held to be incompetent.\nIf the declaration of the deceased husband, in whom the seizin was alleged by the widow to have been at the time of his death were not competent as against her, certainly the declarations of the heir, not of the existence of some fact, but of the non-existence of some alleged fact, could not be competent. There was no error in excluding the proposed declaration.\nThis Court cannot consider the exception to the refusal to grant a new trial because the verdict was contrary to the rights of the widow. As has been often held, that was a matter of discretion from which there is no appeal.\nAffirmed.", "type": "majority", "author": "Davis, J.," } ], "attorneys": [ "Mr. R. D. Gilmer, for the plaintiffs.", "Mr. E. R. Stamps, for the defendant." ], "corrections": "", "head_matter": "M. H. LOVE et al. v. NANCY L. McCLURE.\nDower \u2014 Evidence\u2014Contract for Sale of Land \u2014 Widow\u2014 Vendor and Vendee \u2014 Parties.\n1. The right of the wife to dower is paramount to and does not arise from the estate of the heir, but is a continuation of that of the husband.\n2. Where the husband entered upon land under a contract for its purchase, paid tlie juice, but died before a conveyance was made to him, leaving his widow in possession; Held, that the vendor could not recover from her the possession of the land, and that upon a verdict being rendered establishing the fact of the payment of the purchase money, she was entitled to judgment, notwithstanding the heirs at law of her husband were not parties to the action.\n3. The declarations of the heir of the husband are not competent against the widow upon the trial of an action wherein it is sought to defeat her right to dower.\nDEPENDANT'S appeal.\nCivil action, for the recovery of land, tried before Graves, J., at Spring Term, 1887, of Haywood Superior Court.\nThe plaintiffs are the heirs at law of J. R. Love, and allege that they are the owners of the land described in the complaint, and that the defendant is in possession thereof and \u25a0wrongfully withholds the same, &c.\nThe defendant Nancy L. McClure denies the allegations \u2022of the complaint, and as a defence to the action, and for affirmative relief, alleges that J. R. Love, the .ancestor of the plaintiffs, in 1858, executed to Wm. McClure, now deceased, .a bond for title to certain lands described in the answer, and \u2022the bond for title fully set out therein, and that the land mentioned in the complaint is included in the land so mentioned in the bond for title, and that Wm. McClure in his lifetime fully paid off and discharged the notes mentioned in the bond for title as the price of the land and was entitled to a deed in fee therefor; that Wm. McClure died iri 1866 intestate, leaving the defendant his widow and the children named in the answer as his heirs at law, \u201c and the defendant was entitled to dower in said land and now holds the same as widow of said William McClure,\u201d &c.; that J. R. Love died in 1863, leaving a last will and testament, which was duly proved and the executors therein named duly qualified; that the bond for title was duly registered in the Register\u2019s office of Haywood County on the 15th of January, 1867 ; that J. R. Love in his life-time, and his personal representatives since, have sold portions of the land mentioned in the bond for title as set out in the answer.\nShe asks that the surviving executors of J. R. Love (who are named) be made parties plaintiffs, and that the heirs at law of Wm. McClure (who are named) be made parties defendants ; that a decree he made requiring the executors of J. R. Love and the plaintiffs to convey the lands mentioned in the bond for title to the heirs at law of Wm. McClure, and iftheyeannot convey the whole of the land, then for damages for so much as they may be unable to convey, and for such further relief as she may be entitled to.\nAt the special term, July, 1885, it was, by the Court, referred to the Clerk of the Superior Court to ascertain and report upon certain facts and to state an account. At the same term the following entry was made: \u201cLeave granted to make the executors of J. R. Love parties plaintiff, and the heirs of Wm. McClure, deceased, parties defendant, and pleadings to be amended accordingly.\u201d\nThe referee made his report to the Spring Term, 1886, which, with the defendants\u2019 exceptions thereto (twenty in number), is fully and at length set out in the record, bu,t in the view taken by this Court, it is only necessary to mention that the referee reported that J. R. Love executed to Wm. McClure, the husband of the defendant, the bond for title, &c., as alleged in the answer; that the purchase money had not been paid, and that the 18th and 20th exceptions to the report were as follows :\n\u201c 18. That the referee erred in finding as a legal conclusion or fact that the purchase money for the land had not been paid, or any part thereof, as there was no testimony to warrant such finding.\n>ii iK \u2021 * \u2021 *\n\u201c 20. And the defendant asks that a jury pass upon the issue of payment, and such other issue as may be necessary, to determine the merits of this action.\u201d\nUpon the hearing on the report of the referee and the exceptions thereto, at said term of the Court, the following order was made:\n\u201c This cause coming on to be heard, and being heard on exceptions to the report of the referee, made to this term, the exceptions filed by defendant from number 1 to number 19, both inclusive, are overruled by the Court, and defendant excepts to the ruling of the Court.'\nIt appearing to the Court that the defendant has demanded a jury trial in exception number 20, the Court holds that the defendant, by virtue of said last named exception, is entitled to have the issue of payment of the notes mentioned in the bond for title passed upon by a jury, and that the burden will be upon the defendant to show affirmatively the actual payment of the notes mentioned in said bond for title. Defendant excepts.\n\u201c The following issues are framed, to be submitted to a jury at the next term of the Court, involving only the question of payment:\n\u201c1. Have the notes mentioned in the bond for title, executed by testator of plaintiffs to defendant\u2019s husband, William McClure, been actually paid in full?\n\u201c 2. If not, what sum has been actually paid by defendant or her said husband, or any agent of either, on the $477 note?\n\u201c 3. What sum has been paid on the $823 note?\n\u201c4. What sum has been so paid on the $150 note?\n\u201c Defendant excepts.\u201d\nAt the Spring Term, 1887, these issues were submitted to a jury, and the response to the first was in the affirmative, which rendered an answer to the others unnecessary.\nThe plaintiffs movtd for a new trial, which was refused, and thereupon the defendant asked judgment:\n\u201c For a decree for the plaintiffs to execute title to the heirs at law of William McClure and for costs. This judgment th\u00e9 Court refused to grant, for that theretofore the Court had adjudged that the heirs of Wm. McClure were necessary parties, and had ordered them to be made parties, and now after the verdict, upon inspecting the record, found that they had not been made parties.\u201d\nThereupon the defendant moved the Court for judgment as follows:\n\u201c This cause coming on to he heard upon the complaint, answer, issues submitted and found by the jury, and it appearing to the Court that the defendant is the widow of William McClure, and that said William.McClure had the bond of James R. Love, ancestor and testator of plaintiffs, for title to the land in controversy; and it further appearing to the Court from the issues submitted and found by the jury, that the said William McClure, in his lifetime, fully paid the purchase money to said James R. Love for said lands, and that the widow, Nancy L. McClure, the defendant, is entitled to dower on said land: On motion of counsel for defendant, it is considered by the Court that plaintiffs take nothing by their writ, and the defendant have and recover of plaintiffs and secu\u00f1ty in prosecution, the costs in this behalf to be taxed by the Clerk.\u201d\nThis motion the Court refused, and declined to make any judgment until all the facts necessary to a full determination of the matters in controversy were properly ascertained. From the refusal to grant the judgment asked for the defendant appealed.\nMr. R. D. Gilmer, for the plaintiffs.\nMr. E. R. Stamps, for the defendant." }, "file_name": "0290-01", "first_page_order": 318, "last_page_order": 326 }