
    Henry Branson v. Elizabeth Yancy, Mark Cooke and Henry Cooke,
    From Wake.
    A widow, who after tlie doath of her husband occupies his residence, his children, some of them of age, living with her, is under no obligation to pay the taxes accruing thereon, between his death and the assignment of her dower.
    Therefore, a purchase by her of the premises, for such taxes, made after the assignment of dower, without actual fraud, will not bo set aside in favor of her husband’s creditors.
    The ORIGINAR Bixx, which was filed on the 3d of September, 1817, stated, that Sterling Fancy died intestate in January, 1815, seised of two lots in the city of Raleigh, on which he resided at the time of his death, leaving children his heirs of law, some of whom were of full age, and others infants, and the Defendant Elizabeth, his widow — that dower in the said lots was assigned to her, under which she entered, and became seised thereof as tenant in dower. That a judgment was obtained against the heirs of Fancy on a scire facias in a suit against his administrator, wherein the plea of plenc ad-minislravit was found for the Defendant — that an execution on that judgment had been levied on the lots in question, and that the Plaintiff had purchased of the Sheriff, under that execution. That about the time of the Plaintiff’s purchase, the taxes assessed by the Commissioners of tiie city of Raleigh, upon said lots, became due, and were suffered, by the Defendant Elizabeth, to remain unpaid. That the Defendant Elizabeth continued to occupy the lots after the death of Sterling Fancy, as well before, as after the assignment of dower. That by a private act of the General Assembly, passed in the year 1008, for the government of the city of Raleigh, it was enacted, “ that every tenant, occupying a house, &c. within the said city, shall be liable to pay the tax herein laid upon such house, &c. and on failure of the proprietor of any lot to pay the annual tax thereon, by himself, ténant or agent, on or before the first of August in each and every year, the Commissioners of the said city are hereby authorised to sell the same at public vendue.” That by a subsequent act, passed in the year 1806, it was enacted u that in all cases where the owner of any lot, &c. in the said city, or the occupants thereof, shall fail to pay the taxes, &c. the Commissioners of said city shall cause to be sold so much of said lot, as shall be sufficient to pay the taxes due thereon, and no more.” The Plaintiff insisted that the Defendant Elizabeth, being an occupant of the said lots, was bound to pay the taxes thereof; but that instead of doing so, she had combined with the other Defendants to defraud the creditors of Yancy, and the Plaintiff in particular — and had not only neglected to pay the taxes, but had fraudulently procured the whole of the lots to be sold for the taxes due for the year 1815, and to be bought in by the Defendant Henry Cooke, who had conveyed them to her.
    The bill prayed a discovery, and that the Defendants Elizabeth and Henry might be declared to be trustees for the Plaintiff, and that all deeds executed in furtherance of the fraudulent combination, might be delivered up to be cancelled.
    The bill was taken pro confesso, as to Henry H. Cooke, who was examined as a witness, under an order to that effect.
    The Defendant Mark Cooke, against whom no decree was prayed, in his answer, denied all knowledge of the matters set forth in the bill.
    The Defendant Elizabeth Fancy, in her answer, denied the Plaintiff’s title to be valid, but alleged that it was defective and void — a judgment against the heirs having been taken by default, some of whom were infants. She admitted the death of her husband, as charged — and stated that her dower was assigned on the 23d of October, 1815, and that the sale for taxes took place,on the 8th of November following; and insisted that the several acts of Assembly recited in the bill, imposed upon her no obligation to pay the taxes charged upon the lots.— She denied all fraud or combination, for the purpose of procuring a sale of the lots for the taxes, and averred, that she knew nothing of the sale or of the purchase by Henry Cooke, until after it was over, but admitted that Henry Cooke had received from her the amount he gave for the Jots, and had assigned to her, and that she had obtained a deed from the commissioners, of which the Plaintiff had notice before his purchase, and she claimed to hold discharged of any trust for the Plaintiff, or any one else.
    This answer was fully supported by the testimony of Henry H. Cooke, and the other proofs taken in the cause, by which it appeared that the widow and children of Fancy, lived on the lots after his death and until the execution sale.
    The private acts of the General Assembly for the government of the city of Raleigh, and the by-laws of that corporation, were filed as exhibits. By them it was proved, that the city taxes attached upon all the property within its limits, on the 1st of April in every year.
    
      W. H. Haywood, for the Plaintiff,
    contended,
    1st. That it was fraudulent for the Defendant Mrs. Fancy, to take an absolute deed for the two lots, when she was bound by law, as occupant, to pay the taxes.— And that being thus bound, her agreement with Cooke, a-mounied on his part to a surrender of bis right, for the benefit of the proprietor.
    2d. That if the acts of 1803 and 1806, did not impose upon her the burthen of paying the taxes as an occupant, still as tenant for life of one third, she ought to have paid that portion of the taxes, upon the same principle that compels the tenant for life to keep down the interest of ar¡ incumbrance, (Lord Fenrhyn v. Hughes, 5 Ves. 99.)
    3d. That the Plaintiff being a reversioner as to part, could not sue at law, and therefore was entitled to ask for a discovery and the relief prayed. For when his title at law accrues, his witnesses may be dead, and then he cannot have a discovery from the Defendant Mrs. Yancy, as his right to possession can only fall in after her death. (1 Maddox 185 — 2 Haywood’s Rep. 226 — 1 John. Ch. Rep. 517 — 17 Ves. 112 — 1 Ves. & Bea. 244.)
    
      Gaston & Badger, for the Defendants.
    1st. The legal title was clearly divested by the sale to Cooke, and his purchase is not affected with fraud.— The Defendant’s title is therefore good, for the reason that a sale by the purchaser without notice, to one having notice is so, the second purchaser being protected by the equity of his vendor.
    2d. The Defendant was liable only for the taxes which accrued after the death of her husband, and then only for the part which was due in respect to her dower, and the whole might have been sold for the taxes due upon the remaining two-thirds.
    3. The judgment on which the execution issued, was not merely irregular and erroneous, but void. This position is fully supported by the case of Bryan v. Brown, decided in this Court (2 Murph- 343.) But if the judgment is void, nothing passed to the Plaintiff by the Sheriff’s deed, and he has no interest in the subject matter ,0f the suit.
   Hale, Judge.

— It is stated that Sterling Fancy, the owner of the lots in question, died about January, 1815, leaving his widow and children in possession thereof; that judgment was obtained against his administrator, from which 'process issued against the lots in the bands of the heirs, and that the Complainant became the purchaser. That the lots were sold for taxes about the 8th of November, in the year 1815 — that the deed for them was made by consent of the purchaser to the Defendant Elizabeth, and that the widow’s dower was laid off between the Courts which sat in August and November.

It must be admitted that all the right the heirs at law of Sterling Fancy had in the lots in dispute, was acquired by the Plaintiff when lie became the purchaser of them ; it is therefore necessary to ascertain what that right was. Upon the death of Sterling Fancy, the title to the lots descended to his heirs at law, who, together with the widow, were in possession of them: they descended however to the heirs at law, subject to the widow’s right of dower, but until dower was allotted to her the title to them was in tiie heirs. By the act of 1803, made for the government of the city of Raleigh, it was required that all taxable property should be given in on or before the first of April. By the same act, it is declared “ that every tenant occupying a house or houses, lot or lots, shall be liable to pay the tax laid upon such house, &c, and on failure of the proprietor of any lot to pay the annual tax thereon, &c. on or before the first of August in every year, the commissioners of the city are authorised to sell the same, &c.” The act of 1806, also made for the government of the city ot Raleigh, declares “ that in all cases, where the owner of any lot or the occupants thereof, shall fail to pay the taxes, so much of such lot as shall be sufficient to pay the taxes, shall be sold.”

I think but little doubt can be entertained, that the heirs at law' of Sterling Fancy were the tenants and proprietors of the lots, within the words and meaning of both these acts, It was their duty then, to give in their lots as taxable property, on the first of April, and to pay the taxes before the 1st of August in the same year. This however was not done, and the lots were afterwards sold, before the purchase made by the Complainant. At the time of his purchase, the heirs at law had no right to the property; it had been lost by the sale for the taxes. We are next to ascertain what remedy the Complainant has against the widow.

At common law the widow was entitled to her quarantine, and in the mean time to be supported by the heir, and before the expiration of her quarantine it was the duty of the heir to put her in possession of her dower. Our law makes provision for the widow’s support for one year, and points out the mode by which she shall be put in possession of her dower. By these laws, the right of the heirs and the widow are not altered ; perhaps the time of her quarantine is thereby enlarged. Before the widow has her dower allotted to her she is amero occupant, she has no right or title to the land, or to one part of it in preference to another: — she has a right to dower in one-third part of it, but what third part that may be, depends upon the allotment of it, and when that is made, she claims, and is in under her husband. In the present case, the widow was not bound to give in the land for taxes,, nor was she bound to give in one-third of it. It is true she was an occupant, but the heirs at law were occupants also, and the legal title was in (hem. 'When the land was sold for taxes, that sale divested the right of the heirs, and her claim to dower was swept off with it. The purchaser for the taxes had a preferable right to either of them, and for this the widow was notblameablo; because if she was not bound either to enter the land for taxes, or to pay them, of course for not paying them she was in no fault — if siie was in no fault, it is difficult to see how she committed one in taking a deed from the oflier r who sold them for the taxes, by the consent of Cooke, who bid them off. It is then upon that right she stands, and her dower right forms no part of it. It is not material when the Complainant purchased, whether he had notice of the sale to Cooke or not; he does not deny it, and she states in her answer, that he had notice.— The bill prays that she may be held as a trustee for the Complainant, and compelled to convey her title to him, because she fraudulently acquired that title. This I think is not established either by the law or the fact of the case. It will be understood that no opinion is given on the validity of her title,* whatever it is, I am of opinion she should not be deprived of it by the decree of this Court. Neither is it intended to give any opinion on the Plaintiff’s title at law, in case that of the Defendant was removed out of his way.

I am of opinion the bill should be dismissed.

Tayxor, Chief-Justice, concurred in opinion with Judge Ham.

Henderson, Judge,

dissentiente...Mrs. Fancy continued to occupy the house and lot on which her husband lived at the time of his death,'which happened in January,together with her children, the heirs at law of her husband, some of whom were of full age, and some were infants. Her dow'er in one-third of the lot, was, on her petition to Wake' County Court, assigned to her betwen the Courts in August and November. The city laws attached on the property (or occupiers) on the first day of April, and the tax became payable some time in the summer. The whole lot was sold in November for the taxes of that year, which w'erc then unpaid, without her privity, or knowledge or contrivance, and Cooke became the purchaser for the amount of them,and communicated to Mrs. Fancy the benefit of his purchase, directing the City Commissioners to convey to her, which has been done. There 1ms been no fraud, (as far as it appears) in anyone. No communication took place between Cooke and Mrs. Fancy, either directly or indirectly. The purchase was made by him to save the property, and from,motives of kindness to Mrs. Fancy. The only fault was in the omission to pay the taxes. Branson, who claims to be a purchaser at an execution sale against the heirs of Fancy, prays that this title thus derived from the sale for taxes, may not be set up against him. There is an objection to the validity of his purchase, the judgment against the heirs being taken at the first term, by default, some of them being infants.

I am inclined to believe that the prayer of the Plaintiff is reasonable. It was the duty of the occupant to keep down the incumbrance and any acquisition of title, made by her, growing out of her omission, is for the benefit of all concerned. In the adjustment of accounts, for instance, in this case, between Mrs. Fancy and the heirs, as to the rents and profits, from her husband’s death to the assignment of dower, she could not set up any claim against them for more than two-thirds of the taxes paid by her, leaving one-third to fall on her dower right. If she has no such claim against the heirs, she has none against Branson, if he is substituted to them ; which depends on the validity of his purchase. I think Mrs. Fancy continued the occupation until the assignment of dower, in consequence of her dower right. Had she occupied the lot through the mere curtesy of the heirs, together with them, or was she only exercising her quarantine right as a curtesy and a bounty of the law, the heirs could not have imposed the payment of the taxes on her as a duty ; the gratuity must be made complete. The quarantine is, allowed for a short time (forty days in England) that site may not be destitute of a home, before dower is assigned. I do not think that Mrs. Fancy’s occupation on the first of April, was of that character — it was in consequence of her right to dower. Nor do I believe that it is competent for her to object to the supposed defect in Branson’s title. She purchased for the benefit of all concerned — thereby professing that her omission, however innocent, should injure no one. Branson is not a mere officious intermedien ; he has at least an apparent title, and asks only a fair opportunity of asserting it in a Court of Law. As to two-thirds of the lots, that is, that part which was not, and could not be assigned as dower, I think that neither Branson, nor the heirs, have any cause of complaint; for as to that, she did not, and could not occupy it in consequence of her right of dower, or expectation of its assignment to her. I for a moment thought that the heirs should have been made parties — but no decree is prayed against them nor can 1 see how their rights are affected. It is with much deference to my brothers, that I express this opinion ; but entertaining it, it is my duty to avow it.

Per Curiam.

— Let the bill be dismissed without costa.  