Forbes v. Long, 184 N.C. 38 (1922)

Sept. 20, 1922 · Supreme Court of North Carolina

184 N.C. 38

BENJAMIN FORBES et al. v. J. C. LONG et al.

(Filed 20 September, 1922.)

1. Mortgages — Contract to Convey — Equity of Redemption — Dower.

Tbe grantee in possession of land under a contract to convey bolds in tbe nature of an equity of redemption by mortgage, in wbicb bis wife, after bis death, is entitled to dower.

2. Same — Possession—Widows—Limitation of Actions — Heirs.

Tbe dower interest of tbe wife in tbe equity of redemption of lands formerly belonging to ber deceased busband, beld by ber in continued possession after bis death, is superior to tbe right of tbe husband’s heirs at law, but not adverse in tbe sense that it would start tbe running of tbe statute of limitations against them.

S. Same — Children of First Marriage — Evidence.

Tbe busband was in the' possession of land in tbe nature of a mortgagor, and after bis death bis wife by a second marriage continued thereon. Tbe mortgage was canceled out of tbe estate of tbe deceased busband, after bis death, and tbe mortgagee conveyed tbe land to bis children as heirs at law, some of them by tbe first and some by tbe second marriage: Held, tbe possession of tbe wife after tbe death of ber busband did not start tbe running of tbe statute of limitations, or ripen tbe title in ber by adverse possession as against tbe children of the busband by tbe first marriage. Tbe character of tbe wife’s possession under tbe evidence in this case at least raised a question for tbe jury.

4. Trials — Argument of Counsel — Depositions Withdrawn — Approval of Court — Orders.

A party to an action may not withdraw depositions be has bad taken from tbe files of tbe court without leave and an order from the court, and upon Lis so doing, the counsel for the adverse party may argue to the jury that the depositions were unsatisfactory to the party at whose instance they had been taken.

Appeal by defendants from Allen, J., at January Term, 1922, of PasquotaNk.

Tbis was a special proceeding, tbe petitioners alleging that they were tenants in common, each owning one-eighth of an undivided interest, and that the defendants owned the other three-fourths of the land in question. From a verdict and judgment in favor of the plaintiffs, the defendants appealed.

W. I. Halstead and Hhringhaus & Small for plaintiffs.

Aydlett & Simpson for defendants.

ClaeK, C. J.

The land in question admittedly belonged to one Buff-kins, who made a deed in March, 1815, “conveying it to John, Virginia, Cordelia, James, Ambrose, and Edgar L. Forbes, children and heirs at law of Isaac Forbes.” Before his death, said Isaac had gone into possession of these lands under a contract to convey. The plaintiffs are two of the grandchildren of said Isaac Forbes, being the children and heirs of John Forbes, son of Isaac, named in the deed. The defendants have admittedly acquired the interest of the other heirs at law of Isaac Forbes, named in the deed.

After the death of Isaac Forbes, his widow, Mary (afterwards Mrs. Boyce) remained on said lands with a part of the children, who gradually moved away, she remaining there with one of the sons, Edgar, an imbecile, until he was carried to the county home. She also paid some taxes on the lands and collected rents. The plaintiffs' ancestor was not on the land, and lived in another part of the county.

These plaintiffs left their step-grandmother unmolested as long as she lived, but after her death, when they undertook to assert their claim for their undivided interest, the defendants, who had then acquired all the other interest, denied the plaintiffs' right to a share in the land, alleging that Mrs. Boyce, the grandmother, by adverse possession, had acquired title.

Upon the face of the deed from Buffkins, and the recitals therein, Isaac Forbes was a mortgagor in possession prior to his death for the retention of title by Buffkins, as set out in the deed made the bargainee a mortgagee, and Isaac Forbes was the possessor, therefore, of an equity of redemption in the premises. The possession by his widow after his death was rightful, and not adverse to his heirs. She was entitled to dower in the lands, and therefore the period of her possession cannot be counted against the plaintiffs or their father, heirs at law of her husband. Resides, nearly all tbe time some of tbe beirs at law were living with ber on tbe land. There is no scintilla of evidence of a denial of tbeir right at any time by their step-grandmother. Tbe possession of tbe widow is not adverse to tbe heir. Everett v. Newton, 118 N. C., 919; Malloy v. Bruden, 86 N. C., 251; Melvin v. Waddell, 75 N. C., 361. Her estate was an elongation of ber husband’s estate, and, as widow, she held in priority with, not adversely to, tbe beirs and those claiming under them. In re Gorham, 177 N. C., 277; Love v. McClure, 99 N. C., 295.

Tbe court properly refused tbe defendants’ motion for á nonsuit. Upon tbe face of tbe record tbe plaintiffs and defendants were tenants in common, and tbe character of Mrs. Boyce’s possession would have been in any view for tbe jury to determine.

Tbe defendants, 'several months before tbe case was called for trial, bad taken certain depositions out of tbe State, which' were sealed and sent to tbe clerk of tbe court, but tbe defendants withdrew them from tbe files without any order of tbe court or consent of tbe plaintiffs. When tbe case was called, tbe plaintiffs moved tbe court to compel .the depositions to be returned. Tbe court so ordered, and tbe defendants excepted. Tbe defendants bad no right to remove them from tbe files without leave, and tbe order of tbe court for tbeir return was proper. During tbe argument tbe attorneys for tbe plaintiff referred to tbe depositions, which were still unopened, and argued to tbe jury that they were unsatisfactory to tbe defendants; otherwise, they would have given tbe jury tbe benefit of tbeir contents. We do not see that this was an unreasonable inference or an unfair argument, and, indeed, it does not appear in tbe record that there was any exception on this ground.

No error.