In the previous case between the same parties decided at this term upon the defendants' appeal, the main question involved in the action was disposed of, and it was there held that John F. Spicer under the deed of 1865 retained a life estate in the one-half of the land in dispute, and that for the purpose of this (229) action that deed was to be considered as having been executed as of the date of the lost deed, for which it was intended to be a substitute. The inquiry for the jury was therefore properly directed to the value of the grantor's estate retained at the date of the execution of the deeds of 1863, and the good faith with which he made these deeds.
Upon the trial the plaintiff attempted to show that John F. Spicer, the grantor, was in possession of the Bermuda Island (being a part of the land in suit) in 1867 or 1868, by evidence that he received some rent from that place in these years, though he himself did not occupy the land. He then put this question to the witness: Did you hear John F. Spicer at any time in 1867 or '68, say for what purpose he had made the sale of land in question? The counsel stated his purpose to be to show that the grantor retained an interest in the Bermuda Island. Upon objection the question was ruled out. The declarations of a person who has executed a deed at a time subsequent to such execution are not evidence against the grantee. Ward v.Saunders, 28 N.C. 382; Williams v. Clayton, 29 N.C. 442. Moreover the grantor as we have decided did retain a life estate in one-half the Island, and had the right both to receive rent for it or to reside upon the Island.
2. The counsel for the plaintiff asked the Court to charge the jury that by being present at the execution sale under which the plaintiff purchased, and not making any claim to the land, the defendants were estopped from asserting any title. The Court decided, first, that there was no evidence that the defendants were present at the sale, and second, that if they had been, they were not so estopped. That ruling certainly gives the plaintiff the benefit of the point. The law is with his Honor. West v. Tilghman, 31 N.C. 163. The verdict of the (230) jury was for the defendants.
PER CURIAM. Judgment affirmed.
Cited: Hilliard v. Phillips, 81 N.C. 99; Phifer v. Barnhardt,88 N.C. 333; Savage v. Lee, 90 N.C. 320; Edwards v. Dickinson,102 N.C. 519; Gudger v. White, 141 N.C. 519. *Page 178