Dick and Rodman, JJ., dissenting. The facts were found by the Judge, to be as follows: "The judgment-debtor, J. A. J. Askew, in the year 1870, was the the owner of two houses and lots, and a store-house, in Bertie county, and proposed to one Augustus Holley, to borrow two *Page 173 thousand dollars, and to secure him in said loan, by a deed of trust, upon said houses and lots. The said Holley was unwilling to take the security, unless the defendant, the wife of said Askew, would join in the conveyance with her husband. The defendant, Maria C. Askew, refused to join in the conveyance, unless she was compensated for releasing her right of dower and homestead. Whereupon, it was agree, that if the said Maria C. Askew would join in the conveyance, she should have the balance of the money arising form the proceeds of the sale of the houses and lots, after paying Holley the principal and interest of his money. With this understanding the deed was executed. The houses and lots were afterwards sold by the trustee, for $3,400, and out of the proceeds, the debt and interest to Holley, and the expenses of the trust, c., were paid off and discharged.
The lots were sold on a credit, and the purchaser gave in part payment, two notes, one for $500, and one for $481. These two notes the trustee endorsed, without recourse, to the defendant, Maria C. Askew, in furtherance of the agreement, which had been made with her. All of the $481 note, with the concurrence of Maria C. Askew, had been collected and paid to the creditors of her husband, before the judgment of the plaintiff, except about $100, which was agreed to be paid. The other note, of $500, was retained by the said Maria C. Askew, and claimed as her property. The conveyance to Holley was made before the plaintiff's judgment was obtained. J. A. J. Askew, and Maria. C. Askew, were married before January, 1867. The debt due the plaintiff was contracted previous to the making of the deed in trust. Upon this state of facts, the Court was of opinion, that the property, in the $500 note, was in Maria C. Askew, the defendant, and dismissed the proceedings and gave judgment against the plaintiff for costs. Plaintiff appealed from this judgment. The single question is, whether the Act of 1868-'9, restoring to widows, their common law right of dower, i.e. dower in all the lands of which the husband was seized during coverture, prevents a husband from selling lands which he owned before the passage of the act, his marriage having been before the act. If the act has that effect, it must be because it gives the wife an inchoate right to dower, to be consummated upon the death of the husband, she surviving, and of which she cannot be deprived without her consent; for, certainly, before the act, it was never supposed that the husband could not sell his lands at pleasure, without the consent of his wife. If the act has that effect, then her consent in this case to the sale, was a sufficient consideration to support the agreement to give her a part of the sale-money. If the act had not that effect, then her consent was immaterial, and afforded no support to the agreement to give her a part of the sale-money and therefor, as against creditors, the transaction was void. It is a dry question of law, and must be so considered; although it is admitted to be one of great importance, and by no means free form difficulty.
Since 1784, and until the act aforesaid, 1868-'69, widow was entitled to dower in the lands only, of which the husband died seized and possessed, and therefore, but few questions have arisen in our State in regard to dower-rights, and none probably in regard to inchoate dower-right. But the important charge which that Act 1868-'69, made, involves the subject in much uncertainty, and will breed much litigation. What adds to the uncertainty is, that the different States have different laws, in regard to dower, and the decisions in the State Courts are numerous and conflicting. Some of the decisions holding, that acts lime our are retro-active, and others holding them to be prospective only. And the reasons, which would be proper in one case, are inconsiderately used in the other. Scribner onDower, a late American work, reviews the statutes and decisions of the different States, and also the *Page 175 English authorities and by judicious comments, has endeavored to produce some order out of much confusion. But,. speaking of the inchoate right of dower as property, he says: "A certain vagueness of expression, uniformly characterizes the discussion of the subject, and, these discussions are commonly attended with unsatisfactory results." And so, we see, that this great right, favored like life and liberty, instead of being as it ought to be, and as until lately it has been, so plain, that he that runs may read, is now involved in much confusion, by inconsiderate legislation and conflicting adjudications.
It has been much discussed, whether marriage is a contract, or an institution, or sacrament, or all combined; and, especially, whether dower results from the contract of marriage, or from the operation of law. Suppose it to result from the contract of marriage, then it is discussed, whether the Legislature can change the law of dower, without impairing the obligation of contracts. Suppose it to result form the operation `of law, than it is discussed whether the Legislature can change it without interfering with vested rights, and whether the law cannot change, modify, increase or abolish it. Those who claim to be up with the chivalry of the age, and while the Legislatures are liberally enlarging the dower-right, insist, that the Legislature have full power over the subject. But suppose upon some occasion, when the chivalric element may less prevail in legislation, they should curtail, or even destroy the right, how than? And if the dower-right is so frail that a widow may be deprived of it without her consent, how was her consent to the deed in this case important, ever supposing the act to be retro-active; and if not important, then it was no consideration, and, if no consideration, then the contract was void. So that the agreement is suicidal. If the right to dower is at the mercy of the Legislature, to increase or diminish, continue or destroy, then it is nothing — nothing as a right — nothing as property! We think that this great right, sacred as life, and indispensable to society and the family economy, *Page 176 ought to be more secure, ought to be inviolable, when once it exists, whether it be created by contract, or by operation of law. And we, by no means, subscribe to the doctrine that a right vested by operation of law, is less inviolable than when it arises from contract, when once it exists, no matter how it is inviolable. Nor is it true, that, in any conceivable case, private property can be taken for public use, or, as is said in this case, for the "paramount public good," without just compensation.
Our conclusion form what has been said, is, that before the the late act, a widow was entitled to dower in such lands as the husband should die seized and possessed of, and in no other; that the right to be so endowed commenced, (whether by the contract of marriage, or by operation of law, makes no difference) at the time of the marriage, but subject to the husband's power of sale, and contingent upon his not selling it, and upon her surviving him, and that the Legislature could not deprived her of that right, or in any way change it without her consent. The Act of 1868-'69, comes in and changes the law of dower, so as to give the widow dower, not only in all the husband owns at the time of his death, but in all that he owned during coverture, but this act does not affect rights, or marriages, which existed before its passage; they stand as they did before the act, when the husband could sell without the consent of the wife; and, therefore, the consent of the wife, as in the this case, was immaterial, and afforded no consideration to support the contract.
We have not overlooked the fact, that he deed in this case does not profess to release the wife's dower-right, if she has any, or to covenant against the incumbrances of dower; because, under the view which we have presented, it is not necessary. But it would see, that before the widow can set up her consent as a consideration to support a contract, to give her a part of the sale-money, it ought to appear that she had released her dower-right, or covenanted against the incumbrance; *Page 177 and, quere, whether in any case, it could depend upon parol evidence, and whether the contract must no be set out in the deed, and appear to be fair and reasonable?
All this is said, but with little consideration as to the rights of the husband. But has the husband no rights which are entitled to respect, and which the Legislature cannot destroy! Before the late Act, when a man married, owning land, his his wife had an inchoate right to dower, contingent upon his not conveying it away in his life time, and upon hersurviving him, precisely the same as if it had been conveyed to him by deed from another, with such stipulation can conditions Suppose it had been so conveyed to him, could the Legislature step. in and later his title, or change the conditions? No one will so contend. Well, what matters it how his title was derived, and how the conditions and stipulations came about, so that in fact they existed? Here then was the simple case of a man owing a tract of land, absolutely and in fee simple, with full power to sell the same, subject only to the condition, that if he did not sell it, and should die seized and possessed of it, his wife should have dower; and the Legislature steps in and forbids, him to sell, compels him to hold it as long as he lives, and gives his wife dower in it, in spite of him. If this be not depriving him of his vested rights, taking his property from him, and giving it to another, under the nation, as is said, of the "paramount public good," without compensation, then we cannot understand what would be an instance of such a violation of the rights of property.
It would probably be no great hardship upon the husband, married before the Act, and it would probably not interfere with his vested rights, to allow the Act to operate upon all lands acquired after the passage of the Act, because he would have notice of the incumbrance which would attach, and he would take it cum onere. But, as to this, we give no opinion.
And so it may be, that in all cases of marriages since the passage of the Act, the wife may refuse to join in the *Page 178 conveyance, unless she is compensated; and an agreement to give a part of the sale-money for her consent to the sale may be good, her dower-right attaching to all the lands of her husband, and contingent only on her surviving him; a reasonable probability, and not a mere possibility. Andquere, whether the Legislature, by any subsequent Act, can deprive her of this right. But these questions are not before us.
II. If the dower-right did not afford a sufficient consideration to support the agreement to give the wife a part of the sale-money, then in the second place, it is insisted, that her homestead right did.
There is this difference in the dower Act, and the homestead Act — the homestead Act. applies only to the homestead, used in the sense of the home, or dwelling house, whether actually set apart or not; or the homestead, after it is set apart, upon proceedings had for that purpose.
The lands in question had not been set apart as a homestead upon proceeding instituted for that purpose, and it is not distinctly stated that they were the homestead or dwelling in the general sense. The case describes them as"two houses and lots, one a store house." These is nothing in this to indicate that they were the homestead. Not is there anything to indicate whether the husband did not have other lands, and whether he did have lands which he had used, or which, after this sale, he did not intend to use as a homestead. Nor is it stated whether he was insolvent. Not is it states whether he had children, Nor does it appear from the case stated nor from the deed, nor in any other way, what was the estimate put upon her homestead right. Nor is there any covenant in the deed against the homestead right, nor is there any release. And surely it cannot be, under the most liberal construction of the homestead Act, that the wife is entitled to have her homestead taken out of every tract of land the husband may own, and may wish to sell! It is true, that by reference to the deed, we find that, in describing the lots, it is said,"one being *Page 179 the house and lot upon which we reside," and that is all; and whether temporarily permanently, or whether he had not another which he had adopted, or intended to adopt, as a homestead, is not said. And both lots are put together, and her homestead-right, claimed in one as much as the other. Nor price being fixed upon either, and no estimate of the value of her homestead. So that, if, hereafter if she should claim a homestead in other lands, there is nothing in the transaction to estop her, or even to show how much she has received in the way of her homestead-right in this transaction, so as to deduct it from any subsequent claim. So we think that as the case appears to us, she has made out no homestead claim, the surrender of which, was a sufficient consideration to support the agreement.
We have not overlooked the fact, that the provisions in the Constitution and in the homestead Act, giving to widows homestead rights, seem not to be precisely the same. he Constitution seems to contemplate that the widow should have a homestead only in the event, that there were no children, while the Act seems to prefer the widow to the children. If there is a conflict in the provisions, it would seem, that the constitutional provision should prevail. But we do not decide the questions, because, it is not necessary.
There is error, And judgment would be rendered here for the plaintiff, but it does not appear what amount is due from Sessoms so that this opinion must be certified to the Court below to the end that the amount of the indebtedness of Sessoms be ascertained, and judgment for that amount or for so much less as may be necessary to satisfy the judgment of the plaintiff against J. A. J. Askew, be rendered against Sessoms in the Court below.