Yount v. . Miller

Ashe, J. The facts of this case are very vaguely and obscurely presented. And some of the important facts of the case, we have the opinion, were proved or admitted because no question was raised about them in the record. Por instance, we must take it for granted that the land allotted to the widow for dower and the lot assigned to Smith and wife in the partition covered the locus in quo, and also that, the deed made by Lafayette Yount to the defendant covered the same land, and that the.defendant was in possession when the action was brought. Beginning with these assumptions, which we think warranted by the record, we proceed to the consideration of the points of law presented. The first instruction asked by the defendant was prop- *335 erJy refused by the court. There was no error in the charge. As the law stood at the time of the trial of this case, and as applicable to it, a party, who relied on thirty years’ adverse possession to presume a grant, was not bound to show that he and those under whom he claimed had held the possession, claiming up to visible lines and boundaries. But even if that were so, it could not apply to this case; for here, it was proved that the land in controversy had been in the adverse possession of John Yount for fifteen years before his death, and in the possession of his widow for thirty-six or seven years after his death, claiming up to the lines defined .in the allotment of dower, and then that John Yount had owned the lands all around there. As to the second instruction asked, it was immaterial under the facts of the case, whether Lafayette Yount claimed the land conveyed by him to the defendant, by inheritance from John Yount, for as the land had been held by the widow and John Yount sufficiently long to presume a grant from the state, the inquiry whether the defendant was estopped to deny the title of John Yount became unimportant. But if not so, the question was very properly left to the jury, who had before them the testimony of the witness Little, who testified that Lafayette Yount was an heir of John Yount, and that he had inherited the part of the land claimed by defendant. The third, instruction asked was rather “ begging the question.” The court -was asked to charge the jury that as the proceedings for partition show that the plaintiff claims the land in controversy as heir of Elizabeth Yount, the defendant’s adverse possession had ripened into a perfect title before the death of Elizabeth. But the plaintiff in those proceedings did not claim the land as heir of Elizabeth Yount. The plaintiff and the. other petitioners applied as tenants in common to have partition of the land, not that belonging to Elizabeth but that on which she lived. What *336 land was that? Why the land that had belonged to John Yount, and after his death allotted by a jury of twelve men-tó the widow of John Yount for her dower. The bare statement of these facts is sufficient to force any sensible mind to the conclusion that they were claiming the land as co-tenant's by inheritance from John Yount. This brings us to the only important question presented by the record. 'The plaintiff insists that as the widow had dower assigned her in the land in controversy, his cause of action did not accrue until after her death in 1879, and the defendant contends that the evidence offered by the plaintiff to establish the dower of the widow was insufficient for that purpose, and that his adverse possession for more than seven years with color of title barred the recovery of the plaintiff. These-opposite and conflicting contentions of the parties narrows the case down to the question, whether the evidence offered by the plaintiff was sufficient to establish the fact that dower had been allotted to the widow, as contended by the plaintiff. The entry on the docket and the report of the jury, standing alone, we do not think sufficient to establish the title of the widow to her dower, for there is no petition • shown, no evidence of a writ issued to the sheriff commanding him to summon the jury, and no judgment confirming the report of the jury. But as the papers in the case, after search, are proved to have been lost, we think parol proof is admissible as secondary evidence in aid of the widow’s title, and the defects in the record are supplied by the presumption arising from the long possession by the widow of the land described in the report, accompanied by the acquiescence of all the heirs-at-law of John Yount. In Richards v. Elwell, 12 Wright., 361, a case of parol bargain and sale of land and possession for forty years, the court used the following language : “There is a time when *337 the rule of evidence must be relaxed; and if not to be re: laxed after forty years, when is it to be?” Mr. Wharton, in his work on Evidence, § 1354, after treating on the subject that when a record is complete the burden of proof is«on the party by whom it is assailed, proceeds to say : “ We have now to advance a step further, and to consider those titles in which after a long possession it is discovered in making up the title that one of its record-links cannot be found. Is it not likely that such link once existed but it is now lost? The answer to this question defends upon the degree of care with which records at the time under consideration were kept, and the casualties to which they were exposed ; and in determining the question of the evidence of such link, and its subsequent loss, a very important point for consideration is the long acquiescence of adverse parties — an acquiescence not probable if the title was bad. Hence it is that the courts have assumed the existence and loss of'such links after a lapse of time, varying with the conditions under which the records were placed.” The record here was a record of the court of pleas and quarter sessions, which court was abolished in 1868, and its records transferred to the superior court, where, as records of the past, it was not to be expected they would receive such care in their preservation as the records of the court in which the custodian was the clerk. And it is a well known fact of judicial history that the records of nearly all our courts suffered greatly from neglect during the war, and were besides exposed to the casualties and accidents of that disturbance. Mr. Wharton, in support of the principle laid down by him as above, cited numerous cáses — notably among them are the cases of Battles v. Holly, 6 Greenleaf Rep., 145, and Freeman v. Thayer, 33 Maine, 76. In the former case it was held that after the lapse of *338 thirty years the authority and qualification of an administrator were presumed from the existence of an inventory, a schedule of claims filed by him on oath, a petition preferred by him to sell the real estate of the deceased, with the certificate of the judge thereon recognizing him-as administrator, the probate records and files of that period appearing to have been loosely kept, and no other vestige of his appointment having been discovered. And in the latter case, Howard, J., speaking for the court, said : “ It has been determined that- after the lapse of thirty years from a collector’s sale of land for taxes, it may be presumed from facts and circumstances proved, that the tax bills, valuation, warrants, notices, &c., were regular; that the assessors and collectors were duly chosen at legal meetings; that the collector was sworn ; that a valuation and copy of the assessment were returned by the assessors to the town clerk, and that every thing which can he thus reasonably and fairly 'presumed, may have the force and effect of proof,” and for the position he cited a number of English and American decisions. Upon consideration of the authorities cited bearing upon the .facts of this case, we are led to the conclusion that there was no error and the judgment of the superior court is therefore affirmed. No error. Affirmed.