dissenting. This is a petition for dower. The plaintiff’s husband was in possession of the land more than a year under a fee simple deed registered in 1854. In their absence for a few years, from which the husband never returned, the defendant took possession of the land, using it as his own, and has been in possession ever since. He entered without any deed or color of title, and without any right of entry or right of possession. He entered as an intruder and trespasser, without any pretense of right.
The defendant’s counsel in this Court said he would not discuss the title of the husband, but insisted that the defendant’s title, growing out of his uninterrupted possession for more than thirty years, was a bar,tO the plaintiff’s claim to dower. This is the question.
At common law, upon the death of the husband, the title, the right of entry and the right to possession, descends to and vests in the heir, and it is his duty to assign dower to the widow, and in certain conditions it is the duty of the Sheriff to lay off and assign dower by metes and bounds. If dower is not thus assigned, ‘the widow, having no estate, no right of entry or of possession, is driven to her writ of dower, in the nature of a writ of right. The only limitation on the *298exercise of this writ was, and is, 60 years. The law favored dower as a means of maintenance of the widow and the nurture of her husband, and the period of limitation at 60 years was adopted on the belief that no widow would live longer, after the death of her husband.
I agree that the defendant’s long possession would bar an action by the heir of the land, as it would an action by the husband. This is so because the heir claims by descent under and through the husband, which is not true as to the widow. Her right at the death of her husband, whatever it may be called, is not through or under him, but is an interest impressed on the land by the law, in spite of and in theory against his will. This right of dower, as well as that of tenant by the courtesy, is the will of the law, for the encouragement of matrimony. They do not hold by any idea of contract with each other as to their lands, nor by deriva-tion from another, as creditors, heirs or purchasers.
In Norwood v. Morrow, 20 N. C., 450, Ruffin, C. J"., says: “We have so held 'in respect to the husband’s right to his -wife’s chattels. Ligon v. Simmons, 18 N. C., 13. All the old authorities say that the tenant by courtesy is in the post, that is, by operation of law. Coke Litt., 30, b. n. 7. .. . But, however, the argument may be pursued upon the abstruse point of the old law, how the wife is in technically speaking, it is certain that such as her estate is, the law makes it without any act of the husband, and even against his will. She claims, therefore, under the statute, which defines her right of dower, and has made no contract with the husband which constitutes her a purchaser or a creditor.” Randall v. Kreiger, 23 Wall., 147; Martin v. Martin, 22 Ala., 86. Does the reason why the action of the heir is barred apply in this case? No statute in England or in *299North Carolina, and no decision of any Court in either country is cited in support of the defendant’s contention, and I know of no limitation except the 60 years’ limit according to the common law. What reason can be suggested why this cherished right of the widow shall be defeated by the unlawful entry of an intruder without a shadow of right or equitable claim 1
The petition for dower is by our Act of Assembly substituted for the writ of dower at common law. “We however consider the Act of 1715, called the Act of Limitations, as having been pleaded and relied on in this case. Is that Act a bar to this petition ? The widow has no estate in the land, for the law casts the freehold upon the heir immediately upon the death of the ancestor. The widow had no right of entry for dower until it had been assigned to her. She had no estate in the land until assignment. It is not until her dower has been duly assigned that a widow acquires a vested estate for life, which will enable her to maintain ejectment * * * A widow, before assignment of dower, has neither any Tight nor title’ to the lands of which her husband was seized; she had only an interest in the lands for dower; therefore, we think the Act of 1715 can not be pleaded as a bar of her action to recover the same. She is not within the provisions of the Act.” Spencer v. Weston, 18 N. C., 14; 4 Kent Com., 60.
Dower is a favorite of the law and can not be lost or forfeited, except for the causes prescribed by the statute or the common law. Simonton v. Houston, 78 N. C., 418.
“The statute of limitations (says PeabsoN, C. J.) to ‘a writ of right’ is 60 years; to a formedon, 50 years (afterwards reduced to twenty); to a writ of entry, 30 years. The writ of dower is in the nature of a writ of right; there is no statute of limitation in regard to it, for the reason, we suppose, that none was *300thought necessary; for the right ceased at the death of the widow, which would in most cases happen before the expiration of 60, 50, or even 30 years.” Campbell v. Murphy, 55 N. C., 360, and many cases in the Reports.
It appears to me that the plaintiff is entitled to have dower assigned.