The opinion
CuaRK, J.
(dissenting). It was held below that by virtue of the Constitution (Art. X, sec. 6), “the husband has no estate by the curtesy when the wife dies testate, and devises the property, as in this case.” The defendant did not except, of course, to that ruling, and, as the plaintiff did not •appeal, it could not be reviewed now. Indeed, both in the former opinion of the Court and on this rehearing it is held to be the settled law. Walker v. Long, 109 N. C., 510 . The plaintiff’s case for a rehearing rests upon the third allegation of the complaint: “That J. W. Reed, the husband of said Annie G. Reed, at her death became entitled to an estate by the curtesy in said land, and, he is still surviving.” The answer admitted that allegation to be true. In the opinion in this case at last term ( 126 N. C., 620 ), it was held that Ihis was an admission of the fact therein stated of the sur-vivorship of the husband, but that the other averment that the husband, at the wife’s death, “became entitled to an estate by the curtesy in said land,” was an averment of a legal *506 proposition, and could not be 'established by an admission; nor would the defendant be estopped if it had been intended to admit the law to be as averred. The rehearing seeks to-establish that this allegation of the husband being “entitled to an estate by the curtesy” was an allegation of fact. The plaintiff, in his complaint, avers that his mother devised the property to him in fee, and he sets out as his muniment, of title, his mother’s will as an appendix to the complaint. From that, it appears that in the will, dated April 13, 1890, she appoints her husband, J. W. Reed, guardian of her son. . Thomas C. Tiddy. The statute only authorizes the appointment of a testamentary guardian for infants. Thomas C. Tiddy, if an infant at the date of the will, April 13, 1890, could not have been born earlier than April 14, 1869, and by no possibility could her last husband, J. W. Reed, have been married to her at the adoption of the Constitution in April, 1868. Upon the plaintiff’s own pleadings his allegation that J. W. Reed was -tenant by the curtesy, the will being set out, is palpably an averment of a legal proposition, and contrary to his averment of fact that the will, in its terms, gave himself the property in fee. Being erroneous, no admission of the answer (if intended to admit the legal proposition in that paragraph, which is improbable) can make it correct, or be binding upon the defendant or the-Court. The will, which is a part of the complaint, expressly devises this realty in fee to plaintiff. As the complaint avers-that Reed qualified as executor, it appears upon the pleadings that, even if the marriage was prior to 1868, he could not be tenant by the curtesy. Allen v. Allen, 121 N. C., 328 .. This was so held by the Judge below, and plaintiff did not except.
The judgments of this Court are not judgments nisi. They are rendered after argument and careful deliberation. They *507 are, as bas been said by this Court, precedents, and to be overruled on rebearing, like other precedents, only upon error being clearly shown. The judgments of the courts below are deemed correct until error shown. A fortiori, that rule applies to our own decisions, rendered by five judges, instead of one. If there is any doubt that we correctly held at last term that upon the pleadings the Constitution of 1868 applied to this marriage, the burden is upon the plaintiff,, seeking a rehearing, to show that upon inspection of the transcript of the record the marriage was prior to April 24, 1868. Tie has shown nothing of the kind. His only argument is that it is doubtful. It is not doubtful; but, if it were, the rehearing should be denied, for the burden is on him to show that the former holding that this case is governed by the Constitution of 1868 was erroneous. It may seem a hardship that the plaintiff should lose his land for non-payment of the taxes, because, perhaps, he erroneously thought that his stepfather had a life interest in it, and ought to pay the taxes. But, as Chief Justice PeaRsoN has well said: “Hard cases are the quicksands of the law.” If the courts can be tempted to abrogate the law whenever the judges in any given case think it would bear harshly, then the law would be swallowed up, and the courts would become mere boards of arbitration, which are a “law unto themselves.” The law-making power, in view of the increase of taxation, and the growing number of deserters from the duty of paying taxes, which throw upon better men the weight of paying defaulters’ taxes as well as their own, adopted, in 1887, the report of a commission to change our tax laws. Till .that time no tax title had ever been sustained in this Court, with the result that the payment of taxes became a purely voluntary, matter, to the great injury of honest taxpayers. The object of the law is that, if taxes are not paid, the property *508 upon which they are, due shall pass by a valid title to those who will pay the taxes thereon. With the hardship óf any particular case we have nothing to do. From the plaintiff’s own pleadings it appears that he was an infant at the date of the will, for he does not aver that, notwithstanding the appointment of a guardian for him therein, he was not an infant; and hence his averment that his stepfather was tenant by the curtesy was merely an averment of an erroneous proposition of law. Therefore, it follows that, not having redeemed within the year allowed by law, the defendant acquired a legal title by the purchase at the sale for non-payment of State and county taxes, and should be protected in his legal rights by the courts. Even if it were true that the plaintiff held only a remainder subject to Reed’s tenancy by the curtesy, the provisions of the charter of Greensboro do not give plaintiff the additional year which is allowed tenants in remainder under the general law, which, by its terms, applies only to sales for non-payment of State and county taxes, and not, to sales for non-payment of city taxes. This was held in the former opinion ( 126 N. C., at page 622 ), and no authority is cited to impeach that ruling.