Opinion
June Term, 1872.
The Act of 2 March, 1867, entitled an act restoring to married women their common law right of dower, having been repealed by the act of 1868-'69, a feme covert cannot set up a claim for dower during the life time of her husband.
ACTION for the recovery of possession of land, tried before Clarke, J., at Spring Term, 1872, of JONES.
Haughton for the plaintiff.
No counsel for the defendant.
The following case agreed was sent up:
(387) "It is agreed that on 31 December, 1861, the defendant Francis Merritt and one Hargett executed a bond for $200, to J. S. Wilkins, and that on 1 November, 1867, judgment was rendered on the bond against the obligors Merritt and Hargett for $269.90. That on 8 November, 1867, execution was issued, which came into the sheriff's hands 30 January, 1868; on the same day this execution was levied on the land and returned to Court, and a ven. ex. issued, under which the land was sold and purchased by one McLean, and a sheriff's deed made to him.
An action was begun by McLean to recover the land. After commencement of the suit, plaintiff purchased from McLean for value. It was insisted by the feme defendant, Deborah Merritt, that she was entitled to one-third of the land under the act of 2 March, 1867.
The question was submitted to his Honor, with the understanding that if he should be of opinion with the plaintiff, judgment should be given for plaintiff for the possession, etc., and if for the defendant, the feme covert, judgment to be rendered for plaintiff subject to her claim of dower."
His Honor rendered judgment as follows: Let judgment be rendered for plaintiff subject to the dower of the defendant Deborah Merritt, and for costs.
From this judgment plaintiff appealed.
This is a civil action brought by the plaintiff against Merritt and his wife Deborah, and submitted upon a case agreed to his Honor below, Judge Clarke; and the only question in the cause is the claim on the part of the feme defendant to dower, under the act of 2 March, 1867, during the life of her husband. This suit was commenced in December, 1871. It is (388) sufficient, for the decision of this case, to state that the act of 2 March, 1867, was repealed by the act of 1868-'69. But even if the acts are still in force, Sutton v. Askew, 66 N.C. 172, decides that the feme defendant would not be entitled to dower.
The case of Felton v. Elliot, 66 N.C. 195, is like this, and decides that the feme defendants is not entitled to dower on the land sued for.
There was error, and the judgment of his Honor is reversed and rendered for the plaintiff, for the land sued for, unincumbered.
PER CURIAM. Reversed.
Cited: O'Kelly v. Williams, 84 N.C. 283.