| N.C. | Nov 20, 1918
This is a proceeding for the partition of land, the plaintiff claiming as the heirs of John Riddle. The defendant, Alfred Riddle, another heir of John Riddle, and John Davis, to whom Alfred had sold a part of the land, denied that John Riddle was the owner of the land at the time of his death, and pleaded sole seisin, and upon these issues the proceeding was tried in the Superior Court, it having been transferred by the clerk. It was not denied that the petitioners and Alfred Riddle were the heirs of John Riddle. The petitioners offered evidence of possession by John Riddle and of his widow under an allotment of dower.
The first exception of defendants is to the introduction of the judgment roll of the Superior Court of Moore County, in which the widow of John Riddle was the petitioner and the defendant Alfred Riddle and John Riddle's other children were parties defendant, and in which the widow alleged that John Riddle died sized of the 78 acres of land involved in this case (together with other lands), and asked for dower therein. The defendant Alfred Riddle filed no answer in the dower proceedings. Dower was allotted as prayed for and the widow remained in possession of the land in controversy.
The petitioners were permitted to offer evidence as to the contents of a deed made to the ancestor of the parties by one John McLeod. The only evidence as to the loss is the following testimony of Riley Riddle: "I saw a deed after the death of my father. I saw the deed at my father's house. Alfred got the deed out and showed it to me. I left the deed with Alfred. I have never seen it since."
The court found as a fact that plaintiffs gave due notice in writing to the defendants to produce the deed, and that defendants stated in court that they do not have it and have never had it. The defendants excepted. The petitioners also introduced a record showing that Alfred Riddle had entered the land in controversy under the entry laws, and the defendants excepted.
There was a motion for judgment of nonsuit, which was overruled, and the defendants excepted.
The jury returned a verdict in favor of the petitioners, and the defendants appealed from the judgment rendered thereon.
There is authority for the position taken by the defendants that judgments do not ordinarily operate as estoppels between plaintiffs or defendants, usually having this effect only as between adversary parties, but it does not appear that the decree in the dower proceeding was relied on to estop the defendants from denying that John *487
Riddle was the owner of the land in controversy when he died, and clearly the evidence was competent as a quasi admission of Alfred Riddle, who was a party and who failed to answer the allegation that John Riddle died seized in fee of the land, and as contradicting his present claim of ownership by possession. It was also admissible to show the character of the possession by the widow in order that this might be tacked to the possession of the husband to perfect the title of the heir. Atwell v. Shook,
The parol evidence as to the contents of the lost deed was also properly admitted, as the petitioners had traced the deed to the possession of the defendant and had given him notice to produce it. 17 Cyc., 532; Overman v.Clemmons,
The record of the entry was introduced after the defendant Riddle testified that he entered into possession of the land in 1879, and had held it, claiming it as his own, and was proper for the consideration of the jury as tending to contradict him, as only vacant and unappropriated lands can be entered.
The motion for judgment of nonsuit could not be sustained because the evidence of the petitioners tended to prove that John Riddle had held possession of the land adversely for more than thirty ears, which, if believed, was sufficient to show title out of the State and to vest title in him.
John Riddle testified: "I know the land described in the complaint all my life. My father lived on it. He moved on it after I was married. My brother was not grown. He lived on it thirty or thirty-five years — until he died. He built houses on it and rented a part of the land to other parties."
There was other evidence that John Riddle held possession for more than twenty years, and that his widow continued in possession ten or twelve years after his death.
Chapter 195, Laws 1917, which provides that in all actions involving title shall be conclusively presumed to be out of the State unless the State is a party or it is the trial of a protested entry, has no application because this proceeding was commenced before 1 May, 1917.
No error. *488