concurring in result: Is the order of clerk of Superior Court of Johnston County for allotment of dower void? This is the decisive question on this appeal. If it be voidable, the judgment from which appeal is taken should be affirmed. But if it be void, the judgment should be reversed.
The only assignment of error in the record is based upon exception “to the signing and entering of the judgment.” There is no exception to any specific finding of fact. The facts found-in the judgment, if nothing else appeared upon the face of the record, would support the judgment. Query v. Ins. Co., 218 N. C., 386, 11 S. E. (2d), 139; Keel v. Trust Co., 219 N. C., 259, 13 S. E. (2d), 428.
However, looking beyond the judgment, it appears upon the face of the record proper, as admitted facts, that John A. Pearce, a resident of Wilson County, died seized of three tracts of land — one situated wholly in Wilson County, another wholly in Johnston County, and the third partly on each side of the dividing line between the two counties; that the administrator, appointed in Wilson County, instituted this proceeding in Johnston County, to sell the said three tracts of land to create assets to pay debts of the estate, to which proceeding the widow and heirs at law of intestate are parties; that, although Annie Pearce, the widow of John A. Pearce, through her attorney, David Isear, answering petition in said proceeding, asserted her right and election “to have her dower interest in said lands allotted by metes and bounds” which she would “perfect in apt time by a special proceeding for that purpose and in accordance with the statutes,” her attorney consented to the allotment thereof in this proceeding — a fact which the court finds she agreed to “through her attorney, David Isear”; that the clerk of Superior Court of Johnston County, finding that Annie Pearce is entitled to dower, entered an order commanding the sheriff of said county to summon a jury, to allot and set apart to her, “according to law, her dower in the lands of her late husband. — said lands being definitely described in the petition in this cause”; that pursuant thereto the sheriff selected a jury *273of three, residents of Johnston County, wlio went over into Wilson County and allotted dower “around and including the old home place dwellings” — the report not designating in which county the home place is situated; and that no exceptions thereto were filed and the report was confirmed.
The judge below further finds that thereafter the widow “went into possession of the lands allotted to her as her dower”; and that later in an action instituted by the purchaser at the foreclosure of a mortgage deed, in which she joined, for possession of the tract of land in which her dower had been so allotted in this proceeding, the widow, through her attorneys, Wellons & Poole, filed a verified answer in which she “alleged that she was the owner and entitled to possession of the lands which were allotted to her as her dower and that said allotment was duly made pursuant to the order of the clerk of the Superior Court of Johnston County”; and that on trial judgment was rendered declaring title to said land to be in said purchaser, which judgment is pleaded here as an estoppel.
The judge below, being of opinion that the allotment of dower is valid, and that the widow is estopped to deny the validity of same, denied her motion and petition in the cause to set aside the allotment of dower.
Under these facts, is the order for allotment of dower as entered void ? This Court said in Ellis v. Ellis, 190 N. C., 418, 130 S. E., 7, quoting from Freeman on Judgments (4 Ed., p. 176) that: “‘If a judgment is void, it must be from one or more of the following causes: (1) want of jurisdiction over the subject matter; (2) want of jurisdiction over the parties to the action, or some of them; or (3) want of power to grant the relief contained in the judgment. In pronouncing judgments of the first and second classes, the court acts without jurisdiction, while in those of the third class, it acts in excess of jurisdiction.’ ” And, continuing in same case, it is said: “ ‘When we speak of “jurisdiction of the subject matter,” we do not mean merely cognizance of the general class of actions to which the action in question belongs, but we also mean legal power to pass upon and decide the particular contention which the judgment assumes to settle.’ ” Black on Judgments, Yol. 1 (2d Ed.), p. 271.
In the light of these principles, it does not appear to be controverted that the court acquired jurisdiction over the parties, nor does it appear to be as to the subject matter of the proceeding in so far as the purpose is to sell the lands to create assets to pay debts. C. S., 74, as amended by eh. 43 of Public Laws 1935. However, it is contended, and we think properly so, that the further provisions of C. S., 74, as amended by ch. 55 of Public Laws 1923, give jurisdiction as to dower only to the extent of providing for the interest of the widow in the event dower be sold, but that the proviso “that nothing herein contained shall be con*274strued to deprive tbe widow from claiming Her dower by metes and bounds in ber husband’s land” leaves the jurisdiction of the subject matter of the allotment of dower “by metes and bounds” as is otherwise provided by statute. The rationale of such other statutes, and decisions of this Court construing them, tend to indicate that there should be only one proceeding for the allotment of dower, whether it is a dower proceeding or a proceeding for partition of land, in which widow is entitled to dower, C. S., 3226, and that proceeding in the county where “the dwelling house in which her husband usually resided” is situated. Consolidated Statutes, sections 4100, 4105, and 4106. Askew v. Bynum, 81 N. C., 350; Howell v. Parker, 136 N. C., 373, 48 S. E., 762; Harrington v. Harrington, 142 N. C., 517, 55 S. E., 409; Vannoy v. Green, 206 N. C., 77, 173 S. E., 277. See, also, Seaman v. Seaman, 129 N. C., 293, 40 S. E., 41; Baggett v. Jackson, 160 N. C., 26, 76 S. E., 86; Dudley v. Tyson, 167 N. C., 67, 82 S. E., 1025.
Hence, when the court, that is, the clerk of Superior Court of a county other than that wherein “the dwelling house in which her husband usually resided” is situated, assumes to order allotment of dower of a widow entitled thereto, it not only lacks “legal power to pass upon and decide the particular contention which the judgment assumes to settle” but “acts in excess of jurisdiction.”
In this connection it may be noted that, in this State, dower and the provisions for the allotment thereof are wholly statutory. Howell v. Barker, supra; Vannoy v. Green, supra. It is also pertinent to note that in Revised Statutes of North Carolina (1837), ch. 121, sec. 2, and Revised Code of North Carolina (1854), ch. 118, sec. 3, it was provided that any widow, having claim to dower, might file her petition in the county or Superior Court of the county “where her husband shall have usually dwelt” praying that her dower might be allotted to her. But this provision as to the county in which the petition might be filed has not appeared in subsequent codifications. Yet provisions of pertinent statutes, relating to dower and to allotment of dower, tend to indicate legislative intent that petition for dower should be filed only in Superior Court of such county.
The statute, C. S., 4100, provides that a widow, entitled thereto, shall be endowed of one-third in value of all the lands, tenements and heredita-ments whereof her husband was seized and possessed at any time during coverture, in which third part shall be included “the dwelling house in which her husband usually resided.” This section further provides that the jury summoned for the purpose of assigning dower to a widow shall not be restricted to assign the same in every separate and distinct tract of land, but may allow her dower in one or more tracts, having a due regard to the interests of the heirs as well as the rights of the widow.
*275It is further provided therein that this, section shall not be construed so as to compel the jury selected to allot dower to allot the dwelling-house in which the husband usually resided, when the widow shall request that the same be allotted in other property.
Other statutes provide that the widow may apply for the assignment of dower by petition in the Superior Court, C. S., 4105, and that if dower be adjudged, it shall be assigned by a jury of three persons, qualified to act as jurors, who shall be summoned by the sheriff to meet on the premises, or some part thereof, and, after being sworn, shall proceed to allot and set apart to the widow her dower in said premises according to law and make report to the clerk of Superior Court. O. S., 4106. Moreover, when the husband dies seized and possessed of lands in any other county than that in which petition for dower is filed, the last section further provides a method by which the jury in such county, charged with the duty of assigning dower, shall he informed of the value of the lands lying in the other counties, to the end that this value may be considered in determining the dower to be allotted.
For these reasons, I concur in result of decision in this Court that judgment below he reversed.
Stacy, C. J., and BaeNhill, J., join in this opinion.