#### CALDWELL LAND AND LUMBER COMPANY v. W. H. CLOYD and D. C. COFFEE.

(Filed 13 May, 1914.)

1. Deeds and Conveyances — Color of Title — Trials'—Evidence—Adverse Possession.

Where a deed to lands is put in evidence without showing paper'title in the grantor or connecting this deed with any other title, it can have no legal effect except as color of title, making it necessary for the party claiming it to establish such adverse possession of the lands, and for such a iieriod of time, as will ripen his possession into an absolute title under the statute; and while building a house on the lands and marking its boundaries are some evidence of possession, it is not conclusive.

*5962. Same — Leases—Admissions.

Where. the plaintiff relies on adverse possession to ripen his disputed title to lands, evidence is competent as a circumstance to show adverse possession and as an admission by the defendant that, at one time, the latter had leased the lands from the former.

Appeal by plaintiff from. Webb, Jat November Term, 1913, of Caldwell.

This is an action to try the title to land.

The plaintiff introduced grants from the State to Gr. N. Folk of date 16 December, 1874, and mesne conveyances from said Polk to the plaintiff. It also introduced evidence tending to prove that the grants and mesne conveyances covered the land in controversy.

The defendant introduced a deed from Jesse Coffey to "William Coffey, ancestor of the defendant, of'date of 1833, and evidence that it covered the land in .controversy, and that the defendant and those under whom he claims had been in adverse possession of the land for more than thirty years.

The deed from Jesse Coffey to William Coffey was objected to upon the ground that it was fraudulent upon its face; and upon the objection béing overruled, the defendant excepted.

In rebuttal of the evidence of adverse possession by the defendant, the plaintiff offered in evidence a lease from the plaintiff to the defendant of date 11 June, 1897, covering a part of the lands in controversy. The lease was exéluded, and the plaintiff .excepted.

His Honor charged the jury, among other things, as follows: “If you find by the greater weight of the testimony that Silas Coffey built his house oil the land in controversy in 1858 or 1859, and find by the greater weight of the testimony that he, or some one else for him, ran around this tract of land, that he laid it out, that he ran the lines of it, and that he put such lines around that tract of land in controversy that were known and visible lines, the court charges you that would put title in him and that it would be his property, and when he died it would descend to his children^” and the plaintiff excepted.

There was a verdict and judgment for the defendant, and the plaintiff appealed.

*597 Edmund J ones and W. G. Newland for plaintiff.

J. W. Whisnant and Lawrence Walcefield for defendant.'

AlleN, J.

Tbe introduction of tbe grants from tbe State and tbe mesne conveyances to tbe plaintiff, witb evidence tending to prove that tbe grants and conveyances covered tbe land in controversy, made out a prima facie title in fav.or of tbe plaintiff (Mobley v. Griffin, 104 N. C., 112), and to meet tbis case of tbe plaintiff tbe defendant relied, among other things, upon an adverse possession under color of title.

Tbe deed of 1833, under which tbe defendant claims, is not, in our opinion, fraudulent upon its face, and was properly admitted in evidence, but there is no evidence of title, in tbe grantor in that deed, and nothing connecting tbe deed witb any other title,- and it could therefore have no legal effect except as color of title. <

A deed which is merely color, of title professes to pass tbe title, but does not do so ( Williams v. Scott, 122 N. C., 550), and can only become effective as title when there is an adverse possession under it for tbe period prescribed by statute, under some conditions seven years, and others twenty-one years. Hamilton v. Icard, 114 N. C., 536.

Applying these principles, which are too well settled to require tbe citation of authority in their support, tbe charge of bis Honor is clearly erroneous, because of bis failure to incorporate in tbe instruction tbe necessary element of an adverse possession.

He, .in effect, charged tbe jury that if Silas Coffey, a son of 'William Coffey, built on tbe land in 1858 or 1859, and bad tbe 'lines run and marked, that tbis would'put tbe title in him, which would descend to bis children; and tbis is not true, unless there was an adverse possession for tbe time required by statute.

If tbe bouse was built, and tbe lines marked, these would be circumstances tending to prove adverse possession, but not conclusive evidence of tbe fact, nor that tbe possession continued during tbe statutory period.

Tbe whole charge, of bis Honor is not in tbe record, and we cannot see that tbis error was corrected, and it is upon tbe most material question before tbe jury. .

*598Ve are also of opinion that the lease from the plaintiff to the defendant is competent as an admission of his title, and a circumstance tending to rébut the claim of adverse possession.

New trial.