#### R. W. PHEENY and Wife v. JOHNSON HUGHES.

(Filed 3 April, 1912.)

Deeds and Conveyances — Boundaries — Constructive Possession— Limitation of Actions.

"When both parties claim lands from a common source of title, and one of them has shown actual possession on the west side of a certain creek under a deed which includes in its boundaries the locus in quo lying on the east side of the creek, also within the description of the deed of the adverse party, but of which neither party has had actual possession, the constructive possession of *464the former will extend to the eastern boundaries of his deed, and will ripen title to the lands therein embraced after the lapse of the statutory period of time.

Appeal by defendant from Ferguson, J., at September Term, 1911, of Moore.

Tbe facts are sufficiently stated in tbe opinion of tbe Court by Mr. .Chief Justice darle.

H. F. Seawell for plaintiff.

R. L. Bums and C. M. Muse for defendant.

Clare, C. J.

Tbis is an action by plaintiffs to quiet tbeir title to a 48-acre tract of land. Tbey claim title under a deed by G. C. Graves, mortgagee, 14 December, 1898, wbicb recites tbe execution of a mortgage to bim by Richardson, sale thereunder and purchase by tbe plaintiffs. The losé of tbe mortgage was shown. Title out of tbe State was shown by possession under tbe Richardsons since 1857. Tbe defendant claims under a deed from G. C. Graves, 9 June, 1908, and a conveyance of 93% acres, 14 June, 1898. Both parties claim under G. 0. Graves and within tbe Richardson boundaries of a 175-acre tract acquired by tbe Richardsons in 1857. Neither party showed actual possession of that part of tbe '48-acre tract wbicb lies east of tbe creek and wbicb is also within tbe bounds of tbe defendant’s deed.

Tbe judge properly refused tbe motion to' nonsuit and charged that tbe plaintiffs having shown color of title and actual possession within tbe bounds thereof for seven years, were entitled to recover unless tbe defendant bad shown possession by Graves or himself for seven years subsequent to tbe date of tbe deed from Graves to tbe plaintiffs.

Tbis is not tbe case where there is a lappage under distinct lines of title and no one is in actual possession thereof. In such ease, each party having constructive possession under bis deed up to tbe boundaries thereof, tbe law carries tbe possession to tbe party having tbe oldest title. . But here tbe plaintiffs’ entire tract was within tbe limits of tbe Richardson boundary, and tbe plaintiffs having actual possession on said tract west of tbe creek, tbeir constructive possession extended to tbe boundary of *465said tract on the east side of the creek. Having been exposed for more than seven years to action, they have acquired title by possession under, their color for the entire tract covered by their deed. Currie v. Gilchrist, 147 N. C., 649; Simmons v. Box Co., 153 N. C., 261.

The motion for nonsuit was properly denied. It is unnecessary to consider the other exceptions.

No error.