Stevens v. Reed

Bull, J. Cohabitation, reputation and reception by the family as husband and wife, are evidence of marriage in actions of dower, is shown by the cases cited by the plaintiff and many cases elsewhere. Hammick v. Branson, 5 Day 290 ; Jackson v. Clare, 18 Johns. 346 ; People v. Humphrey, 7 Johns. 314; Newburyport v. Boothbay, 9 Mass. 414; 3 Stark Ev. 939 ; Bull. N. P. 112; 1 Cowen & Hill’s Notes to Ph. Ev. 232. Possession is evidence of title, whether of real or personal property, which is conclusive, unless impeached or [54] explained. See authorities eitied for the plaintiff', and Gibson v. Bailey, 9 N. H. 168; Young v. Foster, cited above ; Bassett v. Salisbury Co., 28 N. H. (8 Foster) 453; Knight v. Marris, 3 Fair. 43; Jackson v. Waltermire, 5 Cowen 299. The evidence of the condition of the pasture, and of its use as such, and of the use of the residue as a woodlot, is direct and uncontradicted. Of such land the authorities cited by the plaintiff show the widow is dowable. Revised Statutes, ch. 165, sec. 4. The positions taken by the plaintiff relative to the demand are well sustained by the authorities cited. Besides, the statute does not require that any time should be stated in such demand for the assignment, and the mention of thirty days was merely surplusage. , The case of a demand of dower differs from that of a demand of a debt, as rent, or of personal property, where the party is at once placed in default, if he does not immediately make the payment or delivery; because the demand for dower is required by the statute to be in writing, and no default arises until the expiration of thirty days, if the demand is not complied with. Rev. Stat., ch. 205, sec. 2. The widow is not bound to produce her husband’s deed, because it is not presumed to be in her power. Jackson v. Waltermire, 5 Cowen 301. She falls within the common rule, that a party, after proof of the original deed to himself, or of his title by descent, or devise, or otherwise, may use an office-copy of a deed to which he is not party, but which constitutes part of his claim of title, without showing the loss of the original. Harvey v. Hitchell 31 N. H. (11 Foster) 582; Sanborn v. Sanborn, Rockingham, 1858. Parties and persons interested are competent to prove the loss of a written instrument, to authorize second any evidence of its contents. 1 Cow. & Hill’s Notes to Ph. Ev. 50; McNiel v. McClintock, 5 N. H. 357 ; Curry v. Rogers, 21 N. H. (1 Foster) 252, and cases cited for plaintiff. An [55] affidavit was the proper mode of proof. Woods v. Gassett, 11 N. H. 448. It should show that search had been made in those places where it would most probably be found. Jackson v. Russell, 4 Wend. 543 ; Jackson v. Betts, 9 Cowen 208 ; Pickard v. Bailey, 26 N. H. (6 Foster) 166 ; Downing v. Pickering, 15 N. H. 344; and it should exclude all presumption that this party may have the writing in his own possession, or know where it is. 11 N. H. 448, above. These things are done; so that, if proof were necessary, it seems to be sufficient. Judgment on the verdict.