The question presented by the record is whether the levy of a fierifacias upon land, of which a person is in possession, under a title not controverted, shall so operate as to deprive his widow of dower, although the sale is made after the death of the husband.
The act of Assembly entitles the widow to be endowed of all the lands of which her husband died seized or possessed; but the latter term being ambiguous, and not necessary to be defined in the decision of the question, the inquiry may be more directly pursued by considering whether the title of the owner is evicted by the levy of the execution. I cannot conceive upon what principle so important an effect can be attributed to the levy of a fi. fa. when it is the received and established law that it does not change the possession; for the sheriff cannot turn the defendant out of possession by force of the levy; nor can he after a sale and deed deliver the actual possession to the purchaser; he can only deliver ( 31 ) the legal possession; and if the defendant will not voluntarily relinquish it, the purchaser must resort to an ejectment. To invest the sheriff by implication with the power to turn the defendant and his family out of doors, by virtue of a levy, seems to be as unfounded in principle as it would be oppressive in practice.
For how can we suppose a disseizin to be effected by the levy, without assuming a seizin in some other person? In whom shall it be considered, in contemplation of law? Not in the sheriff, for he has not the scintilla of right; not even so much as to enable him to bring an action of trespass against one who entered on the land after the levy. The right of ownership could be asserted only by the defendant. The writ does not authorize the sheriff to break open the dwelling-house, to seize the goods of the defendant, for this sanctuary of the man and his family cannot be violated. 2 Show., 87. Much less does it permit him to break open the house for the purpose of possessing himself of the land. Not in the plaintiff in *Page 24 the judgment; for even in goods seized he has neither interest, property, nor possession, by force of the levy, and can maintain no action against a trespasser who takes them away; his only remedy being against the sheriff. The plaintiff's right, both in chattels and land, is confined to the money which may be raised on the sale of them — to the lien from the teste of the execution, so as to entitle him to a priority if he sells under it; and to bind the property, of whatever nature, as against the party defendant himself and all claiming by assignment from or representation through or under him.
There is, then, no person in whom the seizin can vest, if it is divested from the defendant; nor can it be considered as in custody of the law, and in abeyance. Against the freehold's being in abeyance, the policy of the law, both ancient and modern, whether derived from the feudal system (32) or from a principle directly adverse to the genius of that institution, viz., to facilitate the alienation of land, hath placed insuperable bars. It is an established rule that the freehold cannot be in abeyance, although with respect to the inheritance it is sometimes admitted from necessity. But it cannot be done by the act of the party, and for this reason a freehold particular estate is necessary to support a remainder of the same degree. Hob., 153. The fee can be in abeyance only to the intent that another, previously designated, may have it afterwards. As in the case of a lease of life, the remainder to the right heirs of the body of A, who is alive, there the entail shall be in abeyance until the death of A, and then it shall vest in his issue, because it could not vest before; and to the purpose of vesting afterwards, it shall be in abeyance. But to make that to pass out of one which shall never vest in another is altogether incompatible with the design of the law in allowing things to be in abeyance. Plowden, 556. It is, besides, in direct conflict with the cautious policy of our law, in the solemn form it prescribes for the transmutation of freehold estates, to invest one of the slightest and most undefined acts a ministerial officer can perform with the tremendous effect of divesting the freehold right of a man in possession. I cannot give my sanction to the principle that the sheriff's indorsement of half a dozen words upon an execution shall be allowed to cut up by the roots the debtor's right to his freehold, nor to ascribe to that officer a plenitude of authority over the property of the citizens which is unknown to the Constitution and the laws in any other instance, and is, in all respects, adverse to the spirit of our institutions. *Page 25
The language is intelligible (or, if we doubt, our books will furnish the necessary information) when we are told that a man may be deprived of his freehold by his own solemn act, executed in his lifetime; by a disseizin and ( 33 ) a descent cast; by an adverse possession, under color of title, for seven years; by the verdict of a jury, disaffirming his title in a suit brought to try it, or by a sheriff's deed, in pursuance of an execution. But I know of no case adjudging, after argument, that a levy of an execution is another means of divesting the seizin.
When we examine the reasons wherefore the law considers chattel property to be vested in the sheriff to a certain degree, by the levy of a fi. fa., it will be seen that they bear no application to freehold estates, and consequently cannot produce similar effects. Although the statute of 5 Geo. II., which first made lands in the colonies liable to be sold for the payment of debts, enacts "that they shall be liable in like manner as personal estates are seized, extended, sold, or disposed of absolutely, so as to pass the whole interest of the debtor to the purchaser," yet the laws must be construed in accordance with the rules and principles growing out of the existing and unalterable nature of things.
When personal chattels are levied upon by the sheriff under an execution, the debtor is discharged to the amount of their value, for which the sheriff is accountable to the judgment creditor; nor does any claim exist against the defendant, although the sheriff waste the goods, or fail to return the execution. The debtor has lost the special property of the goods, which the sheriff may at once take into his possession, as well to render the levy effectual as to secure himself against the claims of the creditor. And by virtue of the special property thus acquired, the law arms the sheriff with authority to maintain trover, or trespass, against a wrongdoer, that he may be enabled to meet his responsibility to the creditors.
But in relation to lands, they will be more safely kept in the defendant's possession than in that of the sheriff; they cannot be secreted, rescued, or removed; the debtor cannot by any act of his transfer the title discharged of the ( 34 ) lien arising from the teste of the execution; nor will so much of his debt as the land is worth be discharged by the levy, for the sheriff has no power to protect it from aggression, nor is he responsible to the creditors.
Chattels are transferable at common law, by delivery; they may be taken away into the sheriff's custody the moment he *Page 26 makes the levy; and if they are expensive in keeping, the law has made sundry provisions for the indemnification of the sheriff. But conventional estates of freehold can pass only by deed; and it is difficult to understand how in the language of the statute of Geo. II. lands "can be seized in like manner with personal estates," and not less so to perceive how consistently with our act of 1715, ch. 7, the debtor became disseized by the levy; for it is a rule of the common law that where seizin of an inheritance is once alleged, it shall always be intended to continue till the contrary be shown. Cockman v. Farrer, Sir T. Jones, 182. Seizin is also favored in equity. Gro. and Rudim. of Law and Equity, 66, rule 96.
These views of the subject induce me to believe that the levy on the land has, per se, no other operation than to fix upon that particular tract as the subject from which the sum claimed in the execution is to be raised; that the security of the creditor is founded on the teste of the execution, and derives no aid from the levy; and that even the benefit of this may be lost by the sale of the land under an execution of a posterior teste, as was admitted by this Court in Green v. Johnson, 10 N.C. 309.
It is urged on the part of the defendant that the sale of the land after the death of the debtor has relation to the levy of the teste, and thus evicts the seizin out of him from that time, and that consequently he did not die seized. There are some general rules touching the doctrine of relation which it may be useful to examine in the first place. It is a fiction of (35) law intended to subserve the ends of justice, and will not be tolerated where it tends to injustice; nor will it apply in any case, except between the same parties and for the same ends; but it shall never work a wrong to strangers, or defeat collateral acts which are lawful. 13 Co., 21. The same author in his 3 Co., 29, states it as a general rule that relations shall extend only between the same parties, and shall never be strained to the prejudice of a third person who is not party or privy to the act. I shall presently state the reasons why this appears to me to apply exactly to the widow's claim, and that she was neither party nor privy to the act which is set up to defeat her dower.
I will select a few of the illustrations of this general rule. Where a person is disseized, the disseizee, after reentry, can maintain trespass against the disseizor; for the law as to the disseizor and his servants will suppose the freehold to have continued in the disseizee; but not so with respect to strangers who *Page 27 come in by right or title under the disseizor; they cannot be made trespassers by relation. Lifford's case, 11 Co., 51.
Before the enabling statute, the grant of a bishop was not good beyond his own life, without confirmation of his chapter; and if the confirmation was not till after his death, it came too late, and the successor was not bound. Fitzh. Abr., Tit. Confirmation, Pl. 22. Entry by feoffee on livery within the view is too late if postponed till after the death of the feoffor. Godb., 25. Livery of seizin, which is necessary to consummate the conveyance by feoffment, cannot be made effectually after the death of the feoffor (Litt., sec. 66); for, says Littleton, "after the decease of him who made the deed, the right of these tenements is forthwith in his heir, or in some other." This reason is applicable to this case, for it shows that in Littleton's opinion a conveyance to be effectual must be consummated in the life of the grantor, and that the consummation comes too late when the estate is vested in a third person. So ( 36 ) while atonement was necessary to the protection of a grant, if it was not made in the lifetime of the grantor, the grant was void; and this doctrine of Littleton, sec. 551, is confirmed by Lord Coke in his comment, who states the reason to be that every grant must take effect as to the substance of it, in the life both of grantor and grantee. So in an exchange made according to the forms of the common law, to perfect which entry is essential, if either party dies before, it cannot be made effectually afterwards. Co. Litt., 52 b.
If the sale relates to the levy, I have stated the reasons which satisfy me that in the case of land levied upon it relates to an act of very little consequence or legal operation. If it relates to the teste, it connects itself with an act the only effect of which is to give the creditor a contingent priority to raise his money from the property levied upon, and to invalidate any transfers made by the debtor after that period. But neither act impairs or subverts the debtor's seizin, for before his death he was a freeholder to all the intents and purposes for which that qualification is required by our law.
But I know of no case where relation is relied on to aid by its fiction an act of the party in destruction of a title conferred by law; and the rule is expressly stated in 3 Co., 29, "that though relations aid acts in law, as dower, yet they will never aid the acts of the parties, that is to say, to make void acts of the parties good, by fiction or relation of law," and hence, thinking the sale of this land was a void act as to the widow, whose title to dower was complete by the death of *Page 28 the husband, it cannot be made good by relation to the levy, or teste. The cases of bankrupt, too, cited at the bar, show that the title of the assignees shall not be overreached by the relation of an execution, because the title is conferred by law.
Before the act of 1784, ch. 204, sec. 8, the widow was dowable of all the lands of which her husband was seized in deed or in law during the coverture; and upon the assignment of (37) the dower she held it discharged from all judgments, leases, mortgages, or other encumbrances made or created by her husband after the marriage; and the reason given is, because, upon the husband's death, the title of the wife being consummated, has relation back to the time of the marriage, and to the seizin which her husband then had, both of which precede such encumbrances. Co. Litt., 46 a, 4 Rep., 65 a. Our act has limited the right of dower to such lands as her husband died seized of; but these are to be assigned to her, in as full right as if the rest which she had aliened had not been stripped from her dower. As to what is left to her, she should be entitled to them in plenojure; and I can see no reason why she should not be entitled to the benefit of the relation in a degree at least corresponding to the curtailed nature of her claim. Then, as to the land of which her husband died seized: his death having consummated her right of dower in them, that should have relation back to the time of the marriage, and to that period of her husband's seizin which preceded any encumbrance short of an actual disseizin or transfer of the title. This construction would place her, with regard to this tract of land, in the situation in which the act found her with respect to all the land of which her husband was seized during the coverture. This is a relation in maintenance of right and justice, founded in reality and not in fiction (Hob., 222), and overreaches in its operation the teste and levy of the execution.
We have the warrant of the law for giving the widow's claim a liberal construction, for it is transmitted to us, as a maxim, that the law favoreth three things: life, liberty, and dower (Bac. on Uses); and modern writers have shown that the legal right is founded on a moral obligation on the part of the husband to provide for his wife, not only during coverture, but after his death; because, during coverture, she can acquire no property of her own, and what she has at the (38) marriage belongs to her husband either absolutely or during the coverture. 2 P. Wms., 702.
As to the wife being bound by the relation of the execution, because she is privy in estate, that is answered by the act of *Page 29 1791, ch. 351, which prefers her claim to that of the creditors; for although after the assignment of her dower she is in from her husband and not from the heir, to whom her claim is paramount, yet the husband's estate continues in her, discharged of his debts and all other encumbrances, provided he died seized. When it is ascertained that she has the right of dower, that right must devolve upon her, both by the common law and our act of Assembly, pure and untrammeled. The plaintiff in the judgment cannot be viewed in any other light than as a creditor; his lien on the land is absorbed by an anterior right so far as it respects the widow, and it remains on that portion of the land only which descended upon the heir.
Whilst I acquiesce in the wisdom of that policy which removed the restraints upon the alienation of real estates, it must be allowed that a very helpless part of the community has been made to sacrifice in an undue proportion towards its establishment; and this is, perhaps, a reason why the pittance that remains to the widow should be protected from reasonings and analogies which have indeed a salutary reference to chattels personal, but the application of which to real property is not so distinct and palpable. It might naturally have been expected that difficulties would arise from the application of a species of process to lands which has been introduced and used for centuries solely for the seizing and disposition of chattels, in relation to every step of which rules and principles have been established by a series of adjudications. I venture to think that much of our difficulty here has proceeded from an indiscriminate adoption of these decisions, without marking the inherent and fundamental difference between the two species of property. Upon the whole case, my opinion ( 39 ) is that the widow is entitled to dower.