Clifton v. . Fort

Davis, J. If the land in question was not allotted to Mary Clifton, widow of the ancestor of the plaintiff, they cannot recover; if it was so allotted, there could be no adverse possession as against the plaintiffs till the death of the widow, and as she died on the 29th day of Maj^, 1880, and this action was commenced on the 17th day of February, 1887, the question of the statute of limitations is not material. 1. We think the loss of the record was sufficiently shown by the testimony of the clerk, and that secondary evidence was admissible to supply the loss. The question raised by •the objection to the competency of such evidence in cases of lost records is fully considered in the case of Mobley v. Watts, .decided at this Term, and we refer to that case and the authorities there cited. This disposes of the exceptions to evi- , dence, and to the first prayer for instructions, and also to the ..second, as qualified by his Honor. *179 2. The third exception is to the charge of his Honor in relation to the deed from Jno. C. Avera to Wm. L. Port. The deed from Avera to Port, made January 5th, 1839, conveys the land in dispute, “ during the lifetime of John Clifton’s deceased widow, and warrants the right and title of said land to said Fort, his heirs and assigns, so long as the said widow doth live, against the lawful claims,” &c. Wm. L. Fort, by this deed, took only an estate for the life of the widow of John Clifton, and when the land was sold in 1878 by David Lewis, administrator, &c., of Wm. Fort, under a judgment of the Superior Court of Wake against the heirs-at-law of Wm. L. Fort, (David I. Fort, the present defendant, being one of them) it was stated by the said David Lewis that he sold only the dower interest, and both Lewis and Powell testify^ that the persons in possession always recognized the land in dispute as the dower of Mrs. Clifton. They spoke of it and claimed it as the widow’s dower; and. Wm. L. Fort, who by his deed held only an estate for the life of the widow, recognized the title of the heirs and claimed only the dower, and it is in evidence that the defendant himself knew that his father bought only Mrs. Clifton’s interest — that it was called her dower. These admissions of the parties in possession are admissible to qualify their title, and to show that they had an estate only for the life of the widow. Nelson v. Whitfield, 82 N. C., 46. There was no error in admitting the deed from Avera to Fort, as qualified in the charge of his Honor, and this disposes of the third exception. 3. The evidence shows a well defined tract of land, known and recognized as the widow’s dower by successive purchasers, including the defendant himself, who claimed only the dower interest or life estate of the widow, none of them asserting any claim to the reversion; and there was no error in telling the jury that they might, if they chose', infer from the evidence before them that the widow was in possession *180 of the locus in quo by metes and bounds, and not of the whole tract. In fact, the evidence tends clearly to show that she, and those claiming the dower interest under her, were in possession from the death of her husband to the time of her own death. The fourth exception cannot be sustained. 4. There was evidence from the records and the witnesses tending to show, and from which the jury might be at liberty to find, that the dower had been allotted, and there was no error in refusing to give the fifth instruction asked for. There is no error. No error. Affirmed.