Supreme Court of North Carolina, 1872

Wesson Hunting v. . Thomas J. Johnson

Supreme Court of North Carolina · Decided January 5, 1872 · Dice

66 N.C. 189

Counsel

J. W. Hinsdale for the plaintiff filed the following brief: I. The plea of "autre action pendant," is fatally defective, because: 1st. This plea can only be pleaded in the second action, but the equity suit was first begun. 2nd. It does not appear that the suit in equity, and the involuntary proceedings in bankruptcy are for the same cause of action, and for the same purpose. Story Eq., Pl., secs . 737, and 738 Mitf. Eq., Pl . 246, Beames Eq., Pl . 136, Behrens v. Sieve King , 2 Mylne and Craig , 602, 2 Chit Eq., Dig . 1726. 1727, Devie v. Brownlow , 2 Dick , 64. 3rd. Where a bill seeks relief, and a defendant pleads "autre action pendant," the other suit must be either in the same or another Court of equity. Cooper Eq., Pl . 272, 276, Beams on Pleas , 134, 146, 148. Lord Raymond's Rep. , 246. Howell v. Waldson , 2 Ch., cas . 85. 4th. The pendency of a suit in a court of the United States or a foreign court cannot be pleaded in abatement or bar to a suit for the same cause in a State court. 2 Mad. ch. , 315. Mitf. Eq., Pl . 209, Mitchell v. Bunce , 2 Paige , 606, Salmon v. Wooten , 9 Dana , 424, 9 Johnson , 221, 12 Ibid . 99, 17 Ibid , 221, 272, 14 Vesey , 307. 5th. The defence is not made in apt time, it should be made before the hearing. Harell v. Van Buren , 3 Edw. 20, 1 Chit. Pl. 658, 658. II. The "Act to restore the common law right of dower to married women." does not affect the present case. It can operate upon those marriages only, contracted subsequently to its passage, for, 1. It is a general and wise rule, to give to statutes a prospective operation. Sackett v. Andross , 5 Hill 327, and cases there cited. Broom's Maxims , 33, and cases there cited. Smith on Stat. Const. Construction, ch . 5. Dwarris on Stat. and Const . ( Ed. of 1871.) 162 Cool. Con. Lim 370, and cases there cited. Sedgwick on Stat Const. Law , 190. 2. This act, if held to operate retrospectively, is unconstitutional. 3. It impairs the obligation of a contract. Marriage is civil contract, and the rights growing out of it, are entitled to the protection of the constitution of the United States. Dartmouth College case , 4 Wheat , 694 Lawrence v. Miller , 2 N. Y . 250. Taylor v. Porter , 4 Hill , 140. Matter of Albany St . 11 Wend . 149. Fletcher v. Peck , 6 Cranch . 87. Green v. Biddle , 8 Wheat 92. Ogden v. Saunders , 12 Wheat . 200. Bronson v. Kinzie , 1 How . 311. McCracken v. Hayward , 2 How . 608. Sedg. on Stat. and Const Law , 638. Holmes v. Holmes , 4 Barb . 296. At common law, the right of dower attached, in favor of the wife, at the instant of the marriage, and could not be defeated by the alienation of the husband. 1 Cruise Dig . 136. So by the marriage and seizin of the husband the wife's right to dower, became a vested right under the marriage contract, and could not be impaired by subsequent legislation. Kelly v. Harrison , 2 John cas . 20. See Stat . 3-4, Wm. IV . ch. 105, which recognizes this principle. Williams on Real Prop. , 171, Burk v. Basson , 8 Cl'k , (Iowa,) 132. The law cannot take away dower. Royston v. Royston , 21 Geo. , 161. Holmes v. Holmes, Barb. , 295, Cool Con. Lim. , 284. Therefore, as the contract of marriage is mutual, and the rights arising therefrom, reciprocal, it follows, that if dower cannot be diminished to the prejudice of the wife, it cannot be augmented to the detriment of the husband. Cool Con. Lim. , 285. Wm. McL. McKay for the defendants.

Opinion of the Court

Dice, J.

In Sutton and wife v. Askew, at this term, this Court decides that the Statutes restoring to married women the common law right of dower, are unconstitutional, so far as they apply to marriages contracted previous to the passage of those statutes.

As the j-eme defendant was married, before the enactment of those statutes, she had no interest in the lands conveyed to the plaintiffs.

The suggestion of the defendant, in the nature of a plea since the last continuance, that the plaintiffs are prosecuting a suit against him in the Court of Bankruptcy, cannot be made available, either as a plea, or as a foundation for a motion to force the plaintiffs to elect, in which Court, they will pursue their remedy.

1st. It does .not appear that both suits are for the same cause of action.

2nd. A pleapuis darrein continuance is not admissible in a Court of Equity ; its effect, may ho obtained, by means of a cross-bill. 1 Ban. Ch. Pr. 6,31.

*193 3rd. The ease of a mortgagee, is an exception to the general rule, and be may proceed on bis mortgage in equity, and, on bis bond, at lav/, at the same time. Danl. C. P., 962.

4th. The matter, which had existed so long, comes too late after hearing and decree.

The proceedings in bankruptcy cannot operate in suspension in this suit, as in eases oí involuntary bankruptcy, an application for the stay oí a pending suit in another Court, cannot be made, until the order of adjudication is proved. Bump on Bank, 332.

JüDGMENT AFFIRMED.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.