Opinion
(Decided 5 June, 1900.)
Dower — Nature — Statutory and Common Law Right — Statute of Limitations.
1. The widow claims her dower under the statute, not under her husband, often against him.
2. She has no estate in the land until assignment of her dower, and the statute of limitations can not be pleaded against her.
3. Her claim is in the nature of "a writ of right," is favored by the law, and can not be lost or forfeited, except for causes prescribed by the statute, or the common law.
PETITION to rehear case decided at February Term, 1899, reported in 124 N.C. 292.
Stevens Beasley for plaintiff. (773)
Allen Dortch for defendant.
FURCHES and CLARK, JJ., dissent.
This case was decided in favor of the defendant at February Term, 1899, and is reported in 124 N.C. 292. It was reheard at February Term, 1900. After reargument and further consideration, the Court is of the opinion that the plaintiff is entitled to have dower assigned to her out of the land described in the complaint, and the first opinion is overruled. The reasoning and ground of our present opinion will be found in the dissenting opinion, as reported in 124 N.C. at page 297, where the authorities are cited, and it seems that it is unnecessary to repeat them here.
In addition to those, we refer to Pinner v. Pinner, 44 N.C. 475, Frost v. Etheridge, 12 N.C. 30. These fully recognize the principle of this opinion, with some excellent reasoning by Taylor, C.J.
The plaintiff, being entitled to dower, is also entitled to damages from her demand for dower equal to one-third in value of the rents and profits of the land. Spencer v. Weston, 18 N.C. 216. These will be adjusted by the court below, if the parties do not agree to some arrangement among themselves.
This will be certified to the court below to the end that the court may proceed according to this opinion.
Error.
Overruled: (And adopting, in effect, the dissenting opinions), Brown v. Morisey, 128 N.C. 138.
(775)