#### HARPER, v. ANDERSON.

(Filed June 13, 1902.)

1. BOUNDARIES — Description—Deeds-—Questions for Jury.

Where a person wills two tracts of land, as the “Dickens” and “Micajah Anderson” tracts, and there is contradictory evidence as to what land is covered by these two tracts, such evidence should be submitted to the jury.

2. EVIDENCE — Partition Proceedings — Boundaries.

Where there is a dispute as to the boundaries of a tract of land, the survey and plat of the land, in a partition proceeding, is not competent evidence in another action in which one of the parties was nor a party to the partition proceedings.

3. E VLDENCE — Sufficiency—Verdict—Directing.

A trial judge may say ro a jury there is no evidence tending to prove a fact, but he can never say a face .s proved.

ActioN by Adrian Harper and wife against J. H. Anderson, beard by J udge E. W. Timberlahe and a jury, at October Term, 1901, of tbe Superior Court of Edgecombe County. Erom a judgment for tbe plaintiffs, tbe defendant appealed.

John L. Bridgers, for tbe plaintiffs.

G. M. T. Fountain, for tbe defendant.

CLARK, J.

Tbomas Anderson bought two adjoining tracts of land, tbe “Dickens tract” and “Micajah Anderson tract,” at different times and under distinct deeds, describing each tract by metes and bounds. At bis death in 1898, be devised tbe “Dickens” land to' plaintiff and her brother, Micajah Anderson, and by decree in partition proceedings tbe same was afterwards divided, tbe defendant not being a party. Tbe “Micajah Anderson tract” was devised to the defendant, who- has remained in possession of tbe locus in quo. It was in evidence that Tbomas Anderson cleared up tbe locus in *539quo, and cut a canal, which differed from the boundary, between the aforesaid tracts, and there was evidence by the defendant that, thereafter, Thomas Anderson always called the land south of and up to the canal the “Micajah Anderson” land, and the land north of the canal and up to the canal the “Dickens land.” The locus in quo is eight acres on the south side of the canal, and the survey made under the order of the Court showed that it was within the boundaries of the original “Dickens” land, as described in the deed therefor. There was also evidence tending to show that it was within the bounds of the original “Micajah Anderson” tract, as described in the deed therefor.

It was in evidence both by plaintiff and defendant that Thomas Anderson (their father) put the plaintiff in possession of the Dickens land up to the canal thirteen years before his death, and put the defendant in possession of the Micajah Anderson tract up to the canal eighteen years before his death, and they remained on the opposite sides, cultivating the land up to the canal, as their common boundary, up to Thomas Anderson’s death, neither being required to pay rent.

The plaintiff introduced in evidence a survey and plot of the division of the Dickens land between the plaintiff and her brother, to show title in the plaintiff, and that the description in the Dickens deed covered the locus in quo. Defendant’s objection was overruled, and he excepted. There was error, for defendant was not a party to that proceeding, and is in nowise bound by it.

At the close of the evidence, “the Judge was of the opinion that plaintiff was entitled to recover, and charged the jury to find for the plaintiff, which was done by the Judge answering the issue for the jury.” This was error. The question for the jury was not that of two parties claiming under distinct deeds, where the boundaries of the deeds must govern, but here the title came from the same source, the will of their *540father. The question is, What did he mean when he spoke of the “Dickens” land and the “Mica j ah Anderson” land? Whether the locus in quo wras intended by him to be embraced in one or the other, was not to be determined solely by whether it was included within the bounds of the one or the other’ deed, but that fact must be taken into consideration, together with the admission that he had made the canal a new boundary, putting one devisee in possession up to the canal on one side for eighteen years before his death, and the other on the other side up to the canal for thirteen years, thus treating it as a new boundary, and the evidence that, after digging the canal, Thomas. Anderson always termed the l.and on one side thereof the “Dickens” land, and that on the other the “Micajah Anderson” land. Peebles v. Graham, 128 N. C., 222. This, if found true by the jury, would be very pregnant, if not conclusive, evidence that the testator had that division in mind in writing his will, especially taken in connection with the admitted long possession of the respective devisees up to the canal as the dividing line. Where the boundary is, is a fact to be decided by the jury. Clark v. Wagoner, 70 N. C., 706. Besides, “A Judge may say to a jury there is no¡ evidence tending to prove a fact, but he can never say a fact is proved.” Cox v. R. Co., 123 N. C., 604.

Error.