#### NATHAN SIMMONS v. DEFIANCE BOX COMPANY.

(Filed 19 October, 1910.)

1. Deeds and Conveyances — “Color”—Adverse Possession — Period of — Termination.

When title is out of the State, one who enters upon a tract of land asserting ownership under a deed sufficiently defining its boundaries and constituting color of title, and continues in the *258exclusive possession for seven consecutive years, acquires the title, and it is not necessary that such claim and possession should have been next preceding institution of a suit.

2. Deeds and Conveyances — “Color”—Adverse Possession — Outer Boundaries.

One in adverse possession of lands, asserting ownership under a deed, having a house thereon and cultivating a small field within the boundaries of his deed under which he holds color of title, holds adverse possession of the lands described in his-deed to its outer boundaries.

3. Same — Ripening Title.

When one enters under a deed, constituting color of title to a tract of land contained within the boundaries of a valid grant, or coterminous with it, and occupies any portion of the tract, asserting ownership of the whole, there being no adverse occupation of any part, the force and effect of such occupation is extended to the outer boundaries of his deed, and, if exclusive and continuous for seven consecutive years, will ripen into an unimpeachable title to the entire tract.

4. Same — Senior Grantee.

When the junior grantee claims title against the senior grantee of lands embraced in a “lappage” caused by the description in their grants by reason of adverse possession under “color,” and has introduced evidence tending to show possession on the lap-page, his possession, by construction of law, extends to the boun-. daries of his deed or grant upon which he relies, and is not confined to so much thereof as may have been in his occupation, if the senior grantee had no actual possession of the “lappage.”

5. Deeds and Conveyances — Possession — Trespasser — Right of Action.

One in the exclusive possession of a tract of land can maintain trespass guare clasum fregit against the casual entry of a mere wrongdoer, even before his title matures.

6. Deeds and Conveyances — “Color”—True Title — Adverse Possession — Lappage—Inferior Title.

The principle of constructive possession operates only in favor of the true title, and such possession is not interrupted or impaired because of a deed of some adjoining claimant, under an inferior title, extending its description so as to overlap the lands thus held.

Appeal from Peebles, J., at tbe February Term, 1910, of ObAVEN.

*259Civil action to recover damages for wrongfully cutting timber on lands of plaintiff.

At tbe close of plaintiff’s testimony and of tbe entire testimony there was motion by defendant to nonsuit plaintiff under statute; motion overruled and defendant excepted.

Tbe court charged tbe jury, and on issues submitted tbe following verdict was rendered:

1. Is plaintiff entitled to recover of tbe defendant damages for tbe trespass alleged in tbe complaint ? Ans., Yes.

2. If so, what amount ? Ans., $522.

Judgment on tbe verdict for plaintiff, and defendant excepted and appealed.

W. D. Mclver, JR. A. Nunn for plaintiff.

Simmons, Ward & Allen, IS. L. Gibbs for defendants.

Hoke, J.

Tbe objection urged for error to tbe validity of this trial was to tbe refusal of tbe court below to nonsuit tbe plaintiff, and this chiefly on tbe ground that plaintiff bad failed to offer evidence sufficient to establish title to tbe locus in quo, but we are of opinion that tbe objection cannot be sustained. Tbe plaintiff introduced a grant from tbe State to one Francis Hill bearing date 25 July, 1716, and’proved that this grant conveyed tbe land in controversy and all tbe land embraced and described in plaintiff’s deed. Plaintiff further introduced deeds covering tbe land in controversy, and as set forth in tbe complaint, one from Leander Gilbert to Miles Jones, bearing date 1 August, 1893, and tbe second from Miles Jones to plaintiff, bearing date 27 December, 1897, and offered evidence tending to show that plaintiff, and those under whom be claimed, bad been in tbe possession of a portion of this land, asserting ownership of tbe entire tract under these deeds for seven consecutive years prior to tbe institution of this suit and prior to tbe trespass complained of, tbe actual occupation having been of about 20 acres of cleared land and seemingly a tenement bouse within tbe boundaries of plaintiff’s deed, as some of tbe witnesses speak of tbe claimants having lived on tbe land. Plaintiff further proved that about 1906 defendant company bad entered upon tbe land and cut and carried away tbe timber from about 87 1-2 acres of *260tbe land and offered evidence to prove tbe amount of damages sustained by reason of tbe alleged trespass.

Defendant introduced in evidence a grant to John Gray Blount for about 7,000 acres of land, purporting to be in Carteret County, bearing date in 1795, and a line of mesne conveyances from tbe beirs of John Gray Blount to defendant company, and proved that tbe descriptive lines of these deeds covered tbe 87 1-2 acres of land where tbe cutting was done, and that there bad never been any actual occupation on this portion of tbe land by plaintiff or those under whom be claimed. There was no evidence of any entry or possession of tbe defendant or any of its grantors upon tbe 87 1-2 acres prior to tbe time of tbe cutting complained of. Nor do we find any available testimony of such entry or possession within tbe boundaries of tbe John Gray Blount grant prior to that time, certainly none prior to 1904, “when L. M. Baltes, superintendent of defendant company, called as a witness for plaintiff, testified on cross-examination that tbe first time be went on tbe company’s land was in 1904.” Upon this state of facts, we think that tbe trial judge properly refused to nonsuit plaintiff and correctly charged tbe jury as be did in substance on tbe question of title, “That if tbe jury were satisfied by tbe greater weight» of tbe evidence, that plaintiff Nathan Simmons and those under whom be claimed were in possession of tbe land, asserting ownership under these deeds for seven consecutive years prior to defendant’s entry, such occupation would mature title to tbe land contained in said deeds. That if such occupation and possession was for seven years or more continuously — not just before suit was brought, but continuously one after another for a period of seven years — it would mature title. And further, that if tbe jury find that plaintiff was in possession of any part of this land by having a bouse on it and cultivating that little field, that such occupation and possession would extend bis claim to tbe outer boundaries of bis deed, etc.”

It is well established with us that when title is out of tbe State, one who enters upon a tract of land asserting ownership under a deed sufficiently defining its boundaries and constituting color of title, and continues in tbe exclusive possession for seven consecutive years, acquires tbe title, and it is not.necessary that such *261claim and possession should have been next preceding institution of a suit. Gilchrist v. Middleton, 107 N. C., p. 663: Christenburg v. King, 85 N. C., p. 230. Our decisions are also to the effect that “where one enters under a deed, constituting color of title to a tract of land contained within the boundaries of a valid grant, or coterminous with it, and occupies any portion of the tract asserting ownership of the whole, there being no adverse occupation of any part, the force and effect of such occupation is extending to the outer boundaries of his deed, and if exclusive and continuous for seven consecutive years, will ripen into an unimpeachable title to the entire tract.” The case suggested constitutes a lappage on the owner to the entire extent of the claimant’s deed and brings the ease under the principle so clearly stated by Associate Justice Walker, in Currie v. Gilchrist, 147 N. C., p. 648, and in which it was held: “When the junior grantee claims title against the senior grantee of lands embraced in the dappage’ caused by the description in their grants by reason of adverse possession under 'color’ and has introduced evidence tending to show possession, his possession, by construction of law, extends to the boundaries of his deed or grant upon which he1 relies, and is not confined to so much thereof as may have been in his actual occupation and possession, if the senior grantee had no actual possession of the ‘lap-page.’ ” And the position is sustained and illustrated by many other decisions of the Court on the subject, as Boomer v. Gibbs, 114 N. C., p. 76, and others.

The principle stated is not affected by the casual entry of a mere wrongdoer. Our eases hold that one in the exclusive possession of a tract of land under color can maintain trespass quare clausum fregit against such a person even before title matures. Myrick v. Bishop, 8 N. C., p. 485: Osborne v. Ballew, 34 N. C., 373. In Myrick’s case, supra, Taylor, Chief Justice, said: “The plaintiff having a deed covering the land where the trespass was committed and being in possession of a part within the boundaries of his deed, was in the actual possession of the whole.” And in Osborne v. Ballew, supra, it was held: “That an entry under a deed into a part of a tract of land shall as against a mere wrongdoer be considered as an entry into the *262whole, it not appearing that any one else has possession of any part.” Nor is its operation interrupted or impaired because the deeds of some adjoining claimant, under an inferior title, may extend their description, also, over a portion of the lappage, there being, as stated, no adverse occupation of any part of the lappage on the part of such a claimant. The principle of constructive possession is never allowed to operate except in favor of the true title, and in the case of McLean v. Murchison, 53 N. C., p. 38, to which reference was made as supporting defendant’s position, it will be noted that the John Gray Blount grant, which was allowed the effect of confining the adversary claimant to his actual occupation, constituted the older and true title, and the ruling was made because such claimant did not show any occupation of the lappage on the true title. In the case at bar the John Gray Blount grant bore date in 1795 and the superior title was that under Francis Hill, whose grant was dated in 1716. Under a charge, free from error and in substantial accord with the decisions referred to, the jury have found that plaintiff and those under whom he claims had an unimpeachable title by reason of open and exclusive possession under color and actual occupation of lappage on the true title for seven consecutive years, and that such title had ripened to the outer boundaries of plaintiff’s deed covering the locus in quo before any entry by defendants or those under whom they claim on any part of the interference. There is no error and the judgment for plaintiff is therefore affirmed.

No error.