#### LEWIS v. COVINGTON.

(Filed May 20, 1902.)

1. REFERENCES — Findings by Court — Exceptions and Objections.

Where the exceptions to the findings of fact of a referee are' that the findings are contrary to the weight of evidence, or not supported hy the evidence, the supreme court will not review them.

2. ADVERSE POSSESSION- — Color of Title.

The adverse possession of a portion of a tract of land to which claimant has a good title is not adverse as to another part of the same tract included in the deed, hut not actually occupied, and to which he claimed title by possession under color of title.

ActioNS by Abrabam Lewis and J ames Overby against J. R. Oovingto-n and M. E. Overby, and R. W. George against beirs of James Overby, beard by Judge H. B. Btarbuek, at October Term, 1901, of tbe Superior Court of StoKes County. Tbe cases were consolidated, and from tbe judgment for tbe plaintiffs in- tbe first action and tbe defendants in tbe second action, defendants in tbe first action and plaintiffs in tbe second appealed.

Glenn, Manly & Eendren¡, J. T. Morehead and E. L. Gaither, for tbe appellants.

Watson, Buxton & Watson, for tbe appellees.

Furches, C. J.

Tbis is an action of ejectment and bas been bere before — reported in 126 N. C., 347, as Lewis v. Overby. When bere before a new trial was awarded tbe defendant, wbicb resulted in a judgment for tbe plaintiff, and tbe defendant again appealed. Tbe case, by consent, was referred to commissioners, and was tried upon their report and exceptions thereto. When tbe case was bere before, a new *542trial was granted because it was beld below*, that the defendant’s possession and that of those under whom he claimed must have been continuous in order to take the title out of the State. After the opinion of this Court was certified to the Court below the case was recommitted to the same referees, and they filed another report, which was again excepted to by the defendant. But the Court overruled the exceptions, adopted the findings of fact by the referees, and also adopted the rulings of the commissioners upon the questions of law arising upon the facts so' found. The exceptions of the defendant to the findings of fact by the referees are, that said findings are contrary to the weight of evidence, or that they are not sup>ported by the evidence. But none of the exceptions are put upon the ground that there was no evidence to support them. And this being so, we have no right to review them, and must take them as found by the referees and the presiding Judge. Gudger v. Baird, 66 N. C., 438; Battle v. Mayo, 102 N. C., 413.

In 1795 Gotlieb Shober obtained two' grants from the State, one for 1,280 acres and the other for 1,920 acres. These lands he sold to “Tim” Pickering, and afterwards, in 1815, they were sold by Banner, Sheriff, for taxes and bought by A. D. Murphy. The deed from Banner, Sheriff, to Murphy, contained but one boundary, and included a large quantity of land not included in either of the grants from the State to Shober. The plaintiff contends that the land in controversy had never been granted until December, 1888, when it was granted to him. The commissioners find that the defendant has acquired the title conveyed by Banner, Sheriff, to Murphy; that the deed from'Banner to Murphy and the mesne conveyances from Murphy to the defendant over the land in controversy. But the grant for 1,280 acres covers no part of the land in controversy, and the 1,920-acre grant covers only a very small border oni one side of the land in controversy. They *543further find that the defendant and those under whom he claims have had actual possession of the lands included in the 1,280-acre grant for more than twenty-one years. But they have not had actual possession of any part of the land contained in the Banner deed to Murphy outside of the two grants to Shober, for as much as twenty years, and that the plaintiff’s grant of 1888 covers the land in dispute. Erom these facts they conclude as a matter of law that the plaintiff is entitled to recover.

The defendant contends that there is error in the finding that the plaintiff and those under whom he claims have not had the actual possession of the land in controversy for more than twenty years, under the rule laid down by this Court; and that this error appears from the findings of fact No. 9, which is as follows: “That the defendants and those under whom they claim have had adverse possession for more than twenty-one years of the lands embraced in the 1,280-acre grant to Gotlieb Shober.” And defendant claims that the land in controversy and the 1,280-acre grant to Shober are both within the boundary of the Banner deed and the other deeds of mesne conveyances to him; that the possession of any part of the land included within the boundary of the Banner deed is the possession of the whole. And, therefore, while the commissioners say they find that he has not been in! possession of the land in controversy for as much as twenty years, the facts they find show that he and those under whom he claims have been in actual possession for twenty-one years.

In this contention the defendant is in error. If the defendant had had no title, except that derived from the Sheriff’s deed, his contention would have been correct; but the trouble is he had a good title to that part of the boundary of which he had the actual possession. And the rule is> to ripen a color-able title into a good title, there must be such possession and acts of dominion by the colorable claimant as will make him *544liable to an action of ejectment. This is said to be the test. Everett v. Newton, 117 N. C., 919; Osborne v. Johnson, 65 N. C., 22; Worth v. Simmons, 121 N. C., 357. Suppose the defendant bad been sued for the possession of tbe land in dispute, the action would have failed; as it would -have been necessary to sbow that the defendant was in possession of the land sued for, and this could not be done, as the defendant was in possession of land to which he had a good title. Suppose the complaint had included the whole boundary embraced by the defendant’s deeds from Sheriff Banner, and the plaintiff had shown that the defendant was living on the 1,280-acre Shober grant, the action would have again failed, for the reason that the defendant was the rightful owner of this grant, and had the right to occupy and use the same. The State is in legal contemplation in possession of all ungranted lands, not in the actual possession of some one.

It is, therefore, seen that the defendant has never been exposed to an action of ejectment, which is laid down as the test. And singular as it may appear to' laymen, it seems that the defendant would have been better off if he had not had a good title to the 1,280 acres and the 1,920 acres granted to' Shober, or any of the land he claims, than he is. Or, to express it in other words, he did not become the owner of the land in controversy, because he was the owner of the other two tracts.

There is no error and the judgment is

Affirmed.