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 Isaaс 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 thе other heirs at law of Isaac Forbes, named in the deed.
After the dеath of Isaac Forbes, his widow, Mary (afterwards Mrs. Boyce) remained on said lands with a part of the children, who gradually moved away, she remаining 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 cоllected rents. The plaintiffs' ancestor was not on the land, and lived in аnother part of the county.
These plaintiffs left their step-grandmothеr 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 aсquired all the other interest, denied the plaintiffs' right to a share in the land, аlleging that Mrs. Boyce, the grandmother, by adverse possession, had aсquired title.
Upon the face of the deed from Buffkins, and the recitals therein, Isaac Forbes was a mortgagor in possession prior to his dеath for the retention of title by Buffkins, as set out in the deed made the bargаinee a mortgagee, and Isaac Forbes was the possessоr, 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 entitlеd to dower in the lands, and therefore the period of her possеssion cannot be counted against the plaintiffs or their father, heirs at law of her hus
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band. Resides, nearly all tbe time some of tbe beirs at law wеre living with ber on tbe land. There is no scintilla of evidence of a deniаl of tbeir right at any time by their step-grandmother. Tbe possession of tbe widow is not adverse to tbe heir.
Everett v. Newton,
Tbe court properly refused tbe defendants’ motiоn 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 dеfendants, 'several months before tbe case was called for triаl, 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 cоmpel .the depositions to be returned. Tbe court so ordered, аnd tbe defendants excepted. Tbe defendants bad no right to remove them from tbe files without leave, and tbe order of tbe court for tbeir rеturn was proper. During tbe argument tbe attorneys for tbe plaintiff referrеd to tbe depositions, which were still unopened, and argued to tbe jury that they were unsatisfactory to tbe defendants; otherwise, they would havе 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.