
    Moore v. Gilliam.
    January 31st. 1817.
    1. Ejectment — Lead Subject to Dower-Effect.--A plaintiff Ln Ejectment may recover against a widow bolding possession oí the land, (of which her husband died seized), and having a right of Bower, if it do not appear that the land in controversy, was assigned, her as her Dower, or as part thereof, or was attached to the mansion house of her husband at the time of his death,
    a. Dower-Land Subject to — Qsiasre.—Where a Deed is made to the purchaser of land in fee simple, and on the same day, he, without being joined by his wife, executed a Deed oi Trust to secure the payment of the purchase money; to raise which, the land is afterwards sold; quaere whether, if she survive him, she be entitled to any right of Dower in such land?
    3. Ejectment - Evidence of Advertisement — Testimony oi Newspaper Editor. — It seems, that the testimony of the Editor of a Newspaper, that he inserted therein, the requisite number of times, an advertisement, the purport of which he states on oath, is sufficient proof of such publication, on a trial in Ejectment, without producing the advertisement itself.
    4. Same — Presumption—Case at Bar. — Tf it be proved on a trial in Ejectment, that the father oi the lessor of the plaintiff, who devisea the land to him, was in possession thereof many years before and until his death; and that the lessor of the plaintiff aiterwards conveyed it toa person, who was in possession at the time of his death; the Jury may presume that the lessor of the plaintiff was in possession from the death of his father to the date of such conveyance, if it be not proved that some other person, in the mean time, had that possession.
    In an action of Ejectment in the Superior Court of Hanover County, in behalf of Walter B. Gilliam, against Anna Moore, the Jury returned a special verdict, finding that John Gilliam, father of the Lessor of the plaintiff, was in possession of the land in controversy, in the summer of 1784, and continued in possession ’till 1801, ’till he died, having, by his Will, duly recorded, and found in hasc verba, devised the same to him; that Mrs. Gilliam, wife of John Gilliam aforesaid, died before her husband; that the Lessor of the plaintiff was in possession from the death of his father, and continued in possession ’till the 10th day of October, 1804, when he convej'ed the said land by Deed of bargain and sale, to John Spotswood Moore, which Deed was duly recorded, and was found in hasc verba ; that on the said 10th day of October, 1804, the said John Spotswood Moore conveyed by Deed of bargain and sale, the said land to Meriwether Jones, Reuben M. Gilliam and Skelton M. Gilliam, as Trustees, to secure the payment of the purchase money fo the said Walter B. Gilliam; which Deed was found in hasc verba; that, the purchase money not having been '"'wholly paid, one of the Trustees, in conformity with, and in imrsuance of the directions of the said Deed of Trust, advertised and sold the said tract of land; that the Lessor of the plaintiff became the purchaser thereof; and that the said Trustee conveyed the same to him by Deed, bearing date the 10th of February, 1810, which was duly recorded, and found in hasc verba; that John S. Moore died in February, 1810, in possession of the said land; that the defendant was his widow, and in possession of the same at the time, of finding the verdict; and that she was his wile at the time of the execution of the Deed aforesaid, from Walter B. Gilliam to him, dated October 10th, 1804.
    
      At the trial of the cause, tile plaintiff introduced the affidavit of Thomas Ritchie, Editor and Printer of a paper called the Enquiier, printed in Richmond, stating that an Advertisement was inserted by him in that paper, from the 3d of June to the 17th of July, 1807, both inclusive, offering for sale on the 20th of July, 1807, at the Eagle Tavern, in the said city, for ready money, a tract of land, described as lying partly in Hanover, and partly in Gooch-land, adjoining the lauds of Elisha Geake, Samuel Mosby, William Woodson, and others, and so offered for sale, as was stated in said Advertisement, in pursuance of a Deed of Trust from John S. Moore to secure a debt due to Walter B. Gilliam. The defendant, having waived all exceptions to the formality of taking said affidavit, and agreed that it should have the same effect, as if the said Ritchie were personally in Court on oath, objected to the same on the ground that it was not competent to prove the facts therein stated, in the absence of the Advertisement itself, therein referred to; the Advertisement not being produced: but the Court decided that the said evidence was proper to go to the Jury, in proof of the facts therein stated; to which opinion of the Court, the defendant excepted.
    The plaintiff, also, having proved that John Gilliam, the father of the Eessor of the plaintiff, was in possession of the land from the year 1784, or 1785, to the time of his death in the year 1801; that he devised it by his Will to his wife for life, with remainder in fee to the Eessor of the plaintiff; that his wife died in his lifetime; and that the Eessor of the plaintiff conveyed the said land to John S. Moore in October, 1804, *who was in possession, till his death; the Court instructed the Jury, that they might presume that Walter B. Gilliam, the Devisee, was actually in possession of the land in controversy, at the death of the Testator, John Gilliam, and continued in possession until the conveyance by him, unless it were proved that some other person was, in the mean time, in possession of the said land. To this Instruction, the defendant also excepted.
    Upon the special verdict, judgment was given for the plaintiff; from which the defendant appealed.
    The counsel for the Appellant being absent, the cause was argued here by John Robertson for the Appellee, who contended that, according to the case of Chapman v. Armistead, 4th Munf. 383, if Mrs. Moore had a right of Dower in the land, the plaintiff in Ejectment was nevertheless entitled to recover; because it does not appear by the verdict, that her dower had been assigned her in the' land in controversy, or that she resided thereon under the Act of Assembly, which authorizes the widow “to remain in the mansion house and the mes-suage or plantation thereto belonging. ”  But in, fact, Mrs. Moore had no right to be endowed of this land at all; for, on the same day that the Deed was made to her husband, he conveyed it by the Deed of Trust, to secure the payment of the purchase money. The land, therefore,’ was merely in transitu,  and never rested in the husband. Eo instanti, that the title passed to him, it passed from him to the ifUst66S>
    
      
      See monographic note on “Ejectment” appended to Tapseott v. Cobbs, 11 Gratt. 173.
    
    
      
      See monographic note on. “Dower” appended to Davis v. Davis, 35 Gratt. 587.
      The principal case was cited in Carpenter v. Garrett, 75 Va. 134.
    
    
      
       1R. C. ch. 94, § 3, p. 170.
    
    
      
       2 Bl. Com. 132.
    
   January 30th, 1817, JUDGE ROANE pronounced the Court’s opinion, as follows:

‘ ‘It does not appear from the special verdict in this case, that the tract of land, the subject of controversy, was the one attached to the mansion house of the Appellant’s husband at the time of his death, whereby she might have claimed to be entitled to the possession thereof, until her Dower in her husband’s lands should be assigned to her.

“Thus considering that verdict, and being consequently of opinion that her right of Dower does not come in question in this cause, the Court passes no opinion thereupon, and affirms the Judgment.”  