#### MRS. L. R. ROOK v. MRS. W. R. HORTON.

(Filed 30 September, 1925.)

1. Dower.

The right of dower arises to the wife in the lands of her deceased husband as a matter of law, not arising by contract, and the widow does not take as a purchaser for value, and the principle that marriage is a valuable consideration does not apply.

*1812. Dower — Deeds and Conveyances — Registration.

A deed of gift of lands registered after tlie marriage or made thereafter, is not good as against the widow’s right of dower, and the grantee therein is not a purchaser for value.

3. Deeds and Conveyances — Evidence—Recitals—Admissions.

The recitals in a deed from the common source of title of a valuable consideration paid for the lands, if uncontradicted by the evidence, is regarded as an admission of the parties.

4. Dower — Color of Title — Adverse Possession — Limitation of Actions.

The widow’s dower in the lands of her deceased husband is but an elongation of his estate, and where this right is inchoate (during his life), the wife is not put to her action by his conveyance of . the land, and the same is not color of title until his death, and may not be ripened into an' indefeasible title by adverse possession prior thereto.

5. Appeal and Error — Instructions — Verdict — Judgments — Objections and Exceptions.

Where the plaintiff’s right of dower is principally involved in the action, and plenary evidence in her favor tends to establish. it, it is unnecessary on her appeal that she should have offered special prayers for instruction on the law involved and an exception to the judgment rendered adversely to her is sufficient to present the question to the Supreme Court.

Appeal by plaintiff from YaNCE Superior Court. *Devin, J.*

Tbe plaintiff married J. J. Horton December 10, 1913. He died in October, 1922. Plaintiff married Eook June 14, 1924.

*W.*E. Horton, wbo died July 23, 1924, bad only two cbildren, J. J. Horton and *W.*J. Horton, botb cbildren of bis first marriage. Mary F. Horton,' first wife of W. E. Horton, died March 9, 1912. Julia Mae Horton, second wife of W. E. Horton, is tbe defendant. Tbis marriage took place June 25, 1913. Tbe property in controversy, a lot of land in Henderson, N. C., was originally tbe property of *W.*E. Horton. March 19, 1904, *W.*E. Horton conveyed by deed, duly registered in Book 15, page 536, tbis lot to bis then wife, Mary F. Horton, for life, with remainder in fee to bis son, *W.*J. Horton, in consideration of natural love and affection, and $800 paid by *W.*J. Horton. *W.*J. Horton died January 31, 1905, leaving J. J. Horton bis only heir at law. September 1, 1913, *W.*E. Horton deeded tbis land to Julia May Horton, for life, and tbis deed was registered March 1, 1915. July 13, 1917, W. E. Horton executed and delivered to defendant, a deed in fee simple for tbe land in controversy, wbicb was registered July 17, 1917.

There was evidence tending to show that "W. E. Horton lived on tbis lot of land with bis first wife, and lived with bis second wife there until bis death, and that she now has possession of tbis lot. Plaintiff seeks dower as tbe widow of J. J. Horton.

*182Tbe verdict was as follows:

“1. Is tbe plaintiff tbe widow of J. J. Horton deceased and was sbe living with bim at tbe time of bis death? A. Yes, (by consent).

“2. Has tbe defendant, Mrs. Julia May Horton, been in adverse possession under colorable title of tbe land described in tbe petition for 7 years next preceding tbe institution of tbis proceeding? A. Yes.”

From a judgment tbereon in favor of defendant plaintiff appealed.

*J. H. Bridgers for plaintiff.*

*Hides & Son, Kittrell & Kittrell, Perry & Kittrell and Thomas M. Pittman for defendant.*

Yarser, J.

Plaintiff’s exceptions challenge tbe rulings of tbe trial court in bolding that adverse possession under color of title for a period of seven years was sufficient to bar tbe petitioner’s right of dower. Tbe other exceptions in tbe record are either immaterial or necessarily abide tbe result of tbis one question.

In questions relating to dower tbe widow is not to be considered a creditor or purchaser for value. *Pridgen v. Pridgen, ante,*102; *Haire v. Haire,*141 N. C., 88; *Norwood v. Marrow,*20 N. C., 578. Marriage constitutes a valuable consideration for many purposes, but not with respect to dower. Dower arises not from tbe contract of marriage, but from tbe law, on account of marriage. Husband and wife make no contract with respect to dower or curtesy. Frequently dower is allotted in spite of tbe husband’s previous acts or declarations. *Pinner v. Pinner,*44 N. C., 475.

Defendant relies on adverse possession under two deeds from *W.*R. Horton to her. Tbe first deed attempts to convey a life estate and tbe second deed attempts to convey tbe fee in tbe lands in controversy. Tbe first deed is dated prior to tbe marriage of petitioner with J. J. Horton, who was, at that time, admittedly tbe owner of the fee in tbe lands in 'controversy, but tbis deed was registered after petitioner’s marriage. It appears that tbe defendant is not, under these deeds, a purchaser for value, but that both of these deeds, as recited by tbe court in its charge, were deeds of gift. Tbe deed executed by *W.*R. Horton, to bis first wife for life and then to *W.*J. Horton, did constitute *W.*J. Horton a purchaser for value, for tbis deed recites a consideration of $800 paid by *W.*J. Horton. Tbis is an admission by W. R. Horton, tbe common source. The deeds from "W". R. Horton to tbe defendant, could not constitute, in any event, as against J. J. Horton, color- of title until registered. *Austin v. Staten,*126 N. C., 783; *Collins v. Davis,*132 N. C., 106.

*183Tbe defendant relies npon *Kluttz v. Kluttz,*172 N. C., 623 and *King v. McRackan,*168 N. C., 624. *King v. McRackan, supra,*establishes tbe rule under wbicb *W.*J. Horton becomes a purchaser for value under tbe admission of *~W.*E. Horton tbe common source, and *Kluttz v. Kluttz, supra,*follows *Collins v. Davis, supra,*limiting tbe rule that unregistered deeds are not color of title to purchasers for value. It is by virtue of this rule that defendant’s deeds from *~W.*E. Horton are not color of title in.favor of a disseizor, when tbe disseizor is claiming under tbe common source.

Dower is only an elongation of tbe husband’s estate. *Graves v. Causey,*170 N. C., 175, 177; *Everett v. Newton,*118 N. C., 921; *Malloy v. Bruden,*86 N. C., 258; *Williams v. Bennett,*26 N, C., 122; *Norwood v. Marrow, supra;*but when it becomes inchoate it cannot be barred, except as provided by law.

J. J. Horton died in 1922, and this action was instituted in 1924. In no view of tbe defendant’s evidence, viewed in its most favorable light for her, did she and her husband, *W.*E. Horton, have seven years adverse possession .under color, unless it took place, for tbe most part, during petitioner’s coverture. Defendant asserts that, under tbe rule announced in *Brown v. Morisey,*124 N. C., 296, adverse possession during tbe coverture will, bar dower. Tbe first vital difference between *Brown v. Morisey, supra,*and tbe instant case, is that in *Brown v. Morisey,*both tbe marriage and tbe acquisition of tbe land were prior to 1856. Then our dower statute allowed tbe widow to claim dower in tbe lands “of wbicb her husband died seized or possessed,” and, *now*she may seek dower in tbe lands of wbicb be was beneficially seized at any time during tbe coverture. However, in *Brown v. Morisey, supra,*there were two dissents and one concurring opinion. *Brown v. Morisey,*126 N. C., 772 (tbe same case reheard) held, reversing tbe. former opinion, that adverse possession, while tbe dower was inchoate, could not constitute a bar. In *Campbell v. Murphy,*55 N. C., 360, *Chief Justice Pearson*states tbe limitations as to tbe exercise of tbe writ of right and writ of dower at common law. It further appears that *Brown v. Morisey, supra,*has remained an unquestioned authority for twenty-five years.

On account of tbe nature of tbe wife’s interest in an inchoate right of dower, she cannot set up her claim to dower during her husband’s lifetime. *Hughes v. Merritt,*67 N. C., 386; *Felton v. Elliott,*66 N. C., 195; *O’Kelly v. Williams,*84 N. C., 283; *Gatewood v. Tomlinson,*113 N. C., 312; *Rodman v. Robinson,*134 N. C., 503. This rule does not affect her rights in equity for tbe protection of her inchoate right, as discussed in *Deans v. Pate,*114 N. C., 194; *Gore v. Townsend,*105 N. C., 228, and eases therein cited.

*184Since the wife may not maintain an action for dower prior to the husband’s death, she is not put to her right of action against a disseizor during the coverture; and, therefore, adverse possession by a disseizor with or without color of title, after her marriage, does not bar or affect her right to dower. This rule is recognized practically wherever the widow is dowable as at common law, and as now provided by statute in this State. The reason, upon which seizin in law is as effectual to support dower as seizin in deed, is as stated by Blackstone: “For it is not in the wife’s power to bring her husband’s title to actual seizin.” 2 Blackstone, 131; Lewis’ Edition, 594. This reason applies with equal force in adverse possession during coverture where she has no right to the possession during the husband’s lifetime, and, therefore, could not compel her husband to sue, and she is without power to sue in her own right. 19 C. J., 500; Tiffany on Real Property, 821; *Miller v. Pence,*132 Ill., 149; *Lucas v. Whitacre,*121 Iowa, 251; *Williams v. Williams,*89 Ky., 381; *Moore v. Frost,*3 N. H., 126; *Durham v. Angier,*20 Maine, 242; *Culler v. Motzer,*28 Pa., 256 (Sergeant Eawle’s Beports, 356); 9 R. C. L., 385, 612; *Lucas v. White,*85 N. W., 209.

The ordinary'statutes of limitations do not, unless expressly so provided, apply to dower. Neither does the seven-year statute which makes title with color an adverse possession. Her right, while inchoate, does not repel the use and enjoyment by others; she is not repelled by the statute of limitations. *Spencer v. Weston,*18 N. C., 213; *Campbell v. Murphy, supra; Simonton v. Houston,*78 N. C., 408.

Dower is a favorite of the law *(Pridgen v. Pridgen, supra),*and the courts will not be astute to find ways by which it will be barred. Feudal regulations put every safeguard around the alienation of land, and so complex did it become that it worked its own overthrow. The next and modern effort-was to facilitate the transfer of title to land; but, as reasoned by *Chief Justice Taylor*in *Frost v. Etheridge,*12 N. C., at page 38, that “a very helpless part of the community has sacrificed in an undue proportion towards its establishment; and, therefore, 'the pittance,’ the dower, has been protected from reasonings and analogies that might otherwise work its destruction.”

When once vested in her, the wife’s inchoate dower right will be protected. *O’Kelly v. Williams, supra.*

The defendant challenges plaintiff’s right to raise these questions on account of failure to ask special instructions in writing, under *McKinnon v. Morrison,*104 N. C., 363. We do not think this salutary rule will bar plaintiff. The admission of the falling in of the life estate in 1912; the admitted marriage of petitioner in 1913, and the datés of the registration of the two deeds from W. E. Horton, to wit, 1915 and 1917, and the second issue, are sufficient to permit this question to *185be raised under tbe exception to tbe judgment. Tbe judgment is not supported by tbe verdict when tbe above facts are considered. . Tbe appeal, itself, is sufficient to raise tbis question. *Williamson v. Rabon,*177 N. C., 302; *Ullery v. Guthrie,*148 N. C., 417; *Griffith v. Richmond,*126 N. C., 377; *Thornton v. Brady,*100 N. C., 38.

Tbe plaintiff contends tbat tbe possession of tbe father, W. E. Horton, was not adverse to J. J. Horton, but we do not find it necessary to decide tbat interesting question, in tbe light of our views on tbe effect of such possession upon plaintiff’s dower right. Tbe trial court held, and we think properly so, tbat tbe deed by W. E. Horton to Mrs. Mary F. Horton and *~W.*J. Horton, dated 19 March, 1904, conveyed a life estate in tbe lands in controversy to Mary F. Horton, and tbe remainder in fee to W. J. Horton. Upon *~W.*J. Horton’s death in 1905, tbis remainder descended to J. J. Horton. Upon tbe falling in of tbe life estate of Mary F. Horton in 1912, J. J. Horton became tbe owner of tbe fee and entitled to tbe possession.

When plaintiff’s coverture began in December, 1913, her husband J. J. Horton was still tbe owner and beneficially seized of tbe lands in controversy. It was error to bold tbat seven years adverse possession under color of title, accruing since tbe coverture began, was a bar to plaintiff’s claim'of dower. Therefore, there must be a

New trial.