#### G. T. TUTTLE v. SALLIE WARREN and FRANK HILL.

(Filed 17 November, 1910.)

1. Deeds and Conveyances — Title—Adverse Possession — Possession of Another — Priority—Partition—“Color”—Evidence.

In his' action for possession of lands, plaintiff, in deraigning his title, introduced a deed to W., a mortgage from R., the son and heir of W., to secure a debt to L., the land described in the mortgage being a 77-acre tract adjoining the locus in quo and the undivided interest of the son in his father’s land; also, a contract from L. to R. agreeing to sell him the tract containing the 77 acres and another tract of 16 acres. There was evidence of the partition of the lands of L. among his heirs at law, a part thereof, including the locus in quo, being assigned to his daughter, G. There was no sufficient evidence of adverse possession to ripen title to the locus in quo in G-., or that L. was the owner of the land, but evidence tending to show the possession of R. thereof for sixteen years, and of a part thereof for thirty years. Held, (1) For the plaintiff to avail himself of the contract between L. and R. as evidence tending to show that the former claimed by virtue of his contract with the latter, there must be some evidence of privity between these two, of which the contract, failing to describe the locus in quo, is none; (2) the possession of R. cannot enure to the plaintiff’s benefit in claiming under G. as one of the heirs at law of L.; (3) G. had color of title to the lands under the division in partition proceedings by the heirs at law of L., but this cannot enure to plaintiff’s benefit for failure to show her possession thereunder; (4) evidence of possession of R., one of the heirs at law of W., under parol partition proceedings is irrelevant, and fails to show the character of the possession of R. as being adverse and under a claim of right; (5) there being no evidence tending to show the legal right of the plaintiff to claim under R. or sufficient to give him the benefit of the latter’s possession of the locus in quo, a judgment as of nonsuit upon the evidence was properly allowed.

2. Judgments — Nonsuit—Another Action.

Upon a judgment of nonsuit upon the evidence, the plaintiff may bring another action and supply the deficiency in the evidence, if so advised.

Appeat^ by plaintiff from Long, J., at tbe May Term, 1910, of Stokes.

Tbe facts are sufficiently stated in tbe opinion of tbe Court.

*460 N. 0. Petree and J. D. Humphreys for plaintiff.

Watson, Buxton & Watson and J. W. Hall for defendant.

"Walker, J.

This is an action for tbe possession of land, tbe title to wbicb was admitted to be out of tbe State. Plaintiff introduced a deed fpr tbe land from Hulet Blackburn to J ames Warren, dated 21 December, 1839, and a mortgage from Reuben Warren, son and heir of James Warren, to-Edward H. Young, trustee, to secure a debt for $536.49 due to William A. Lasb, dated 25 October, 1866, tbe land described therein being a tract of 77 acres adjoining tbe locus in quo, and tbe undivided interest of Reuben Warren in tbe land of bis father. He then introduced a contract dated in 1873, between William A. Lasb and Reuben Warren, by wbicb Lasb agreed to sell to Warren for $509.14 tbe tract containing 11 acres and another tract of 16 acres. There was evidence tending to show a partition of lands among tbe heirs of W. A. Lasb, and that Lot No. 3 assigned to Laura Gilmer, one of tbe heirs, included tbe locus in quo and was conveyed to tbe plaintiff on 19 March, 1908. No possession of that lot by Mrs. Gilmer, or those claiming under her, sufficient to ripen her title, was shown, nor does it appear that W. A. Lasb was tbe owner of tbe land divided among bis heirs in tbe partition proceedings. Tbe plaintiffs contend, though, that W. A. Lasb claimed tbe land under Reuben Warren by virtue of tbe contract of 1873, but we have been unable to find any sufficient proof to the effect that tbe land therein described embraced tbe locus in quo, and that contract is tbe only evidence tending to show any connection or privity between Reuben Warren and W. A. Lasb. It is true that evidence was introduced to show that Reuben Warren bad possession of tbe entire locus in quo for sixteen years or more prior to bis death, wbicb, it is stated, occurred seven years ago, and possession of a part of tbe locus in quo for thirty years, but bis possession cannot enure to tbe benefit of tbe plaintiff, claiming under Mrs. Gilmer as one of tbe heirs of W. A. Lasb, unless some privity between tbe latter and Reuben Warren bad been established. In this view of tbe case, tbe evidence wbicb was offered by tbe plaintiff and excluded by tbe court, that there bad been a parol partition among *461tbe beirs of James Warren, wbo took possession of their respective parts, was irrelevant. If the plaintiff had offered to show that Eeuben Warren went into possession of what is called “his share,” and continued in possession thereof, and that it included the locus in quo, and it had further appeared that there was such privity between him and W. A. Lash as would entitle the latter or his heirs to claim the benefit of the possession of Eeuben Warren, if it was sufficient in itself, or by tacking it to the possession of W. A. Lash held for him by Eeuben Warren under the contract of 1873, to confer title, the evidence might have been competent and relevant, although the oral partition was invalid, to show the character of the possession of Eeuben Warren, as being adverse and under a claim of right. Rhea v. Craig, 141 N. C., 603. But the plaintiff, we think, has failed in his proof at the vital point of the case. He has shown no legal right to claim under Eeuben Warren, or to avail himself of his possession of the locus in quo. In this respect, the evidence is wholly lacking, and some of the other evidence is of an indefinite nature. The allotment to Mrs. Gilmer in the partition proceedings constituted color of title (Bynum v. Thompson, 25 N. C., 578; Smith v. Tew, 127 N. C., 299), which could be ripened into a good title by adverse possession, but there is no evidence of such possession.

In the absence of the essential proof, we must sustain the judgment of nonsuit, but this does not prevent the plaintiff from bringing another action (Tussey v. Owen, 147 N. C., 335) and supplying the present deficiency in the evidence, if he is able to do so.

No error.