John N. Bunting v. . Jesse Foy

66 N.C. 193

Opinion

HodmaN, J.

The only question presented to us, is, whether the wife of the defendant is a necessary party. We are unable to decide it, because, it is not anywhere stated whether the ■defendant married after or before 1866. We agree, with the referee, that the wife has a contingent right to dower, to the extent of the payments, made by her husband. Thompson v. Thompson, 1 Jones, 430, cited by referee. If, however, she married before 1866, tbe case of Sutton v. Askew decided at this term, excludes her, from the benefit of that and subsequent acts, restoring the common law right of dower, and, a sale by or against her husband will defeat her claim, which is confined to estátes, of which, he shall die seized. If, however, she married after 18G6, then, we think, she ought to be a party, on the authority of the case cited by Mr. Phillips, Mills v. Van Voorhees, 20 N. Y. Court of Appeals, 412. Under these circumstances, we can only reverse the judgment below and remand the ease, to be proceeded in, according to law, which is accordingly ordered.

Reversed.