#### W. H. BASNIGHT v. ROBERT W. SMITH, Sheriff.

Tax Titles — Color of Title — Constructive Possession— Presumption.

1. Where a patent issued for land, reserving land within its limits as “previously granted,” possession under such patent, hut outside of the land previously granted, is not constructive possession of the excepted land, nor is the patent color of title to the same.

2. Where, in an action to compel the Sheriff to make a deed to plaintiff ' for lands sold for taxes as the lands of C. H. and J. H., and bought by plaintiff, former title was shown in C. H. and J. TL, but no evidence was offered that C. H. and J. H. were the same men from whom the taxes were due, except that the tax-list showed land listed and taxes due therefor from parties of the same name: Held, that the certificate of tax sale issued to plaintiff as purchaser is, under sec. 62, ch. 137, Acts of 1887, and sec. 63, cli. 218, Acts of 1889, “presumptive evidence of the regularity of all prior proceedings,” and such presumption was not rebutted.

*230This was a orvir, ACTION, tried before Hoke, J., and a jury, at Fall Term, 1892', of Dare Superior Court.

The purpose of the action was to compel the Sheriff of Dare county to execute to plaintiff a deed for the two tracts of land set out and described in the complaint, and known as the Charles Horton tract and the Hooker tract; said land having been sold by the said Sheriff for taxes on May 5, 1890, and purchased by plaintiff.

The plaintiff proved the sale by the Sheriff on May 5, 1890, for taxes due from Charles Horton and J. Hooker. That plaintiff bought at said sale and took a certificate from the Sheriff for each tract, in pursuance of the statute, and also proved the taxes were due from said parties as alleged. That after the expiration of a year from date of sale the plaintiff, who had paid his bid at the time of purchase, demanded of the Sheriff deeds for the two tracts of land,, and said Sheriff refused, and still refuses, to execute a deed for same.

The Sheriff admitted the sale, certificate, etc., and a refusal to make the deed, and claimed that his refusal was rightful, because within the year from the sale for taxes the land had been redeemed by the Eastern Carolina Land and Lumber Manufacturing Company, and testified that on the 22d April, 1891, within the year the said company had, by its agent, paid to the Sheriff the entire amount plaintiff bid for the land, together with the penalty and costs, and that he had so notified the plaintiff before this action was brought; and the question of plaintiff’s right to a deed was made to depend upon whether said company had such an interest in the two tracts of land described in the complaint as made the repayment to Sheriff a valid redemption of the land.

To show such interest defendant introduced a grant from the State to -John Grey Blount, dated 7th September, 1795, *231for 100,000 acres of laud, described by metes and bounds, which grant contained a reservation, as follows: “Within which boundaries there hath been heretofore granted 22,633 acres, and is now surveyed and to be granted to Mr. George Pollock 9,600 acres, which begins at,” etc. Other deeds were introduced showing conveyance of the land to the defendant, and there was evidence to show that the above deeds in the outer boundaries accorded with the John Grey Blount patent, conveyed the same land and contained, the reservations made in the Blount patent. There was evidence, also, showing that the Eastern Carolina Land, Lumber and Manufacturing Company and those under whom it claimed had continuously occupied lands in the Blount patent since 1873, but it was admitted that no portion of the lands sued for and described in the complaint had been so occupied or- possessed. There was evidence, also, tending to show that the lands sued for were within the outer boundaries of the Blount patent.

Plaintiff introduced grants and deeds showing title to the lands sold for taxes in the delinquents.

No evidence was offered that John Hooker and Charles Horton were the same men from whom the taxes were due, except that the tax-list showed land listed and taxes therefor due from parties of the same name.

Defendant contended that the possession of the land and lumber company within the outer boundaries of the Blount patent, but outside of the two grants introduced by plaintiff, would mature the title to the lands embraced in said grants, under the deeds introduced by them, and gave them such an interest in said lands as would authorize them to redeem the land sold for taxes.

The Court being of opinion that such possession of defendant Avould not operate to give them any interest inside of the two grants which antedated the Blount patent, *232instructed the jury, if they believed the evidence, to answer the first issue, Yes; the second issue, No, and the third issue, Yes. Pursuant to this instruction, the jury so responded to the issues as follows:,

1. Did plaintiff ¡mrchase and pay for land at sale for taxes in May, 1890, and take certificates of the Sheriff therefor pursuant to the statute? Answer, Yes. ■

2. Was the land redeemed by the owner, occupant or any person having lien or interest therein within twelve months from such sale? Answer, No.

3. Did plaintiff demand a deed from the Sheriff before bringing this suit? Answer, Yes.

From the judgment in favor of the plaintiff defendant appealed.

Messrs. Grancly & Aydlett, for plaintiff

Messrs. B-usbee, & Busbee, for defendant (appellant).

Clark, J.:

The principal point in this case is decided in Manufacturing Co. v. Frey, at this Term. It is there held that where a patent issued for a tract of land reserving land within its limits “ previously granted,” that possession under such patent, but outside of the land “previously granted,” was not constructive possession of the excepted land, and that the patent was not color of title to the land so excepted, though the burden was on the party claiming under the exception to show that the land in question came within the exception. Here that has been done.

The defendant in this case, however, further contends that no evidence was offered that John Hooker and Charles Horton were the same men from whom the taxes were due, except that the tax-list showed land listed and taxes therefor due from parties of the same name. It would be sufficient to say that this point was not raised by exception *233below, nor By prayer for instruction, nor by issue tendered. It cannot be raised here for the first time. If it could be, however it might have been formerly (Fox v. Stafford, 90 N. C., 296), by the present law, Acts 1887, ch. 137, sec. 62, Acts 1889, ch. 218, sec. 63, the certificate issued to the plaintiff as purchaser at the tax sale was “ presumptive evidence of the regularity of all prior proceedings.” This presumption was not rebutted.

No Error.