#### JAMES H. PADGETT v. S. ANNIE McKOY.

(Filed 16 December, 1914.)

1. Deeds and Conveyances — Color—Adverse Possession — Wire Fence — Evidence — Trials—Instructions—Limitations of Actions.

The plaintiff in this action claims title to the land in dispute by adverse possession under color, and there is evidence on defendant’s part that her agent entered, upon the land, being on the east side of a certain wire fence, and cut timber therefrom in 1908, and the plaintiff, in response to his request, pointed out the wire fence as the dividing line between the lands. There was also evidence of plaintiff’s adverse possession of the land on the east of this fence prior to 1908, sufficient to ripen his title. The court charged the jury, according to defendant’s request for special instruction, in substance, that if the plaintiff pointed out the wire fence'as the dividing line “and stated that the lands on the east thereof belonged to defendant, and the wire fence was constructed by permission of the defendant,” that would be a recognition of the owner*505ship of the defendant of the lands on the east side of the fence, and the possession of these lands by plaintiff thereafter would not be hostile, etc.: Held, it was not error for the court to modify this instruction by charging this would be so unless the plaintiff’s title had ripened by adverse possession before 1908; and if it had, occurrences or conversations thereafter had between the parties could-not divest it; and it is Further held, that construing the charge as a whole, the principles of law were clearly and correctly charged upon this phase of the controversy and the jury could not have been misled or confused in their deliberations to the defendant’s prejudice.

2. New Trial — Newly Discovered Evidence — Motions.

A motion for a new trial for newly discovered evidence is denied. Johnson v. B. B., 163 N. C., 453.

Appeal by defendant from Justice, J., at February Term, 1914, of BUNCOMBE.

This action involves tbe title to the land indicated on the diagram filed in the record, by the letters A, D, E, F, Gr, H, and back to A, they being the yellow lines on the map. The grant of the State to one Cath-cart was introduced by the plaintiffs, but they did not connect themselves with it by mesne conveyances, but relied on adverse possession of the land under color, which was a deed from W. B. Smith to their ancestor, James Padgett, dated 18 November, 1882. Defendant also claimed title to the locus in quo by adverse possession under color, which consisted of deeds from Rebecca Freeman to A. J. Mangum, dated 10 July, 1884, for the locus in quo•; a deed from W. B. Smith to A. J. Mangum, dated 12 February, 1883, for the part of the Cathcart land east of the line A, D, and a deed from A. J. Mangum to Mrs. Annie McCoy, dated 14 April, 1885, for the entire Cathcart tract, including the locus in quo. Each of the parties offered evidence of possession. There also was evidence that there was a wire fence on the land, extending from the point indicated on the map by the letter E towards the point indicated by the letter G-, and a short distance east of the line E, F.

'With reference to the fence, the defendant requested the court to give this instruction to the jury;

“If the jury find from the evidence that in the year 1908 the defendant, through her agent, Ed. Stepp, entered upon the lands in dispute and cut timber therefrom, and if at that time said agent asked the plaintiff to point out to him the line of the defendant, and said plaintiff did point out said line at a point west of the wire fence and as claimed by the defendant, and stated that the lands east thereof belonged to the defendant, and the wire fence was constructed by permission of the defendant, then this would be a recognition of the ownership of the defendant, and the possession of the plaintiff thereafter would not be hostile, under claim of right, and .adverse.”

*506Tbe court gave tbe instruction witb tbe following modification: “Tbis would be so unless tbe plaintiff obtained bis title before 1908. If be bad obtained bis title before tbat date, then no language could divest bim of it.” But tbe court, after correctly defining adverse possession, also charged tbe jury, in tbis connection: “Tbe plaintiff contends tbat be did not bave it cultivated until it was worn out, and then he put it in pasture; tbat be cultivated and pastured for forty years, and tbat at tbe time be was bolding it adversely, under bis deed, and tbat it was in bis possession under tbis character of bolding. Now, if be did tbat, seven years would put bis title indefeasibly in bim. And after be ripened bis title, if be did, then no language of bis, mere talk, could divest it. And if be bad tbe title in bim, it would require a deed to take it out of bim, or something as solemn as a deed. Now, it is in evidence, and tbe defendant claims, tbat at some time after be built tbe wire fence, or at tbe time be was building tbe wire fence, be got permission from tbe McRoys to build tbe wire fence, and at tbat time be was not claiming tbe land at all. Tbe plaintiff says tbat he bad ripened bis title already, and tbat for a long time there bad been a rail fence; and tbat be bad ripened bis title and bad a good and indefeasible title at tbe time tbat wire fence was put there. If you find that be bad ripened bis title, then tbe mere permission would amount to nothing; and if be said tbat be did not own tbe land, tbat Would not take tbe title out of bim, if be bad it in bim. So tbe question is restricted to the time' tbat tbis wire fence was built. One inquiry for you to make is, Had be bad seven years possession before tbat time % He claims tbat be bad. Tbe defendant contends tbat tbe plaintiff went to bim and asked bis permission to put a wire fence on bis land. He said, U did; but I intended at tbat time to put it (farther) over, but I did not bave tbe money to buy tbe wire to put it tbat far.’ ”

The court again charged tbe jury fully and correctly as to what would constitute adverse possession sufficient in law to ripen tbe title of the parties under their color. 'With reference to tbe defendant’s possession, be told tbe jury tbat occasional acts of trespass would not be sufficient for tbat purpose, but tbe.possession must be notorious and continuous, indicating that tbe party claimed tbe land and was. using it as owner. He also stated that if tbe plaintiff bad cultivated tbe land* beyond tbe line E, E, tbat is, east of it, accidentally or inadvertently and not intending to claim it, but under a mistake as to tbe true location of it, bis possession would not be adverse. There was a verdict for tbe plaintiff, and from tbe judgment thereon defendant appealed.

Mark K. Brown for plaintiff.

.Garland A. Thomasson, Zebulon Weaver, and Wells & Swain for defendant.

*507Walker, J.,

after stating tbe case: Tbe defendant reserved several exceptions to tbe rulings of tbe court and tbe charge, but we are of tbe opinion that there is but one which we need consider, and that is, whether tbe court should have modified tbe instruction which defendant requested and above set forth. "We do not understand the defendant’s counsel to contend that if the title of the plaintiff had already ripened under their color, that anything said to Ed. Stepp, agent of defendant, after its ripening, as to the fence or the true line dividing their lands, would be evidence against the plaintiff, but his position is that the added words of the judge were calculated to mislead the jury or confuse them as to whether they could consider that evidence in order to ascertain whether the title had vested. We think that the judge was clear enough in his statement, and that the qualification of the instruction was a proper one. It evidently meant that if, before the conversation between the witness, Ed. Stepp, and Padgett, about the fence and the line, the title had ripened by adverse possession — and we do not doubt that there was some evidence of this fact — then the declarations of Padgett, if they were made, would not affect his title, or divest him of it. And this conclusively appears to have been what was meant, if we refer to other parts of the charge which we have quoted, and the matter is left perfectly free from doubt in our minds, and also must have been, as we think, in the minds of the jurors.

We must read the charge as a whole, and construe it in the same way, as we have so often said (S. v. Exum, 138 N. C., 599; Reynolds v. Palmer, ante, 454); and when thus considered, we do not see how it could have been misunderstood by the jury. The entire charge was a very full and correct exposition of the law “arising upon the evidence.” The contention of each party was fairly stated, and defendant has no reasonable ground of complaint. It is manifest, from the evidence and the charge, as they throw light upon the verdict, that the jury have found that plaintiff held the land in adverse possession a sufficient time to ripen his color into a good title, and that defendant had no such possession, having made only occasional entries upon the land. The court gave substantially all of the instructions requested by the defendant to which she was entitled, and we can find no error in the case. The jury have really settled it against the defendant, upon the evidence, and after a correct submission of it to them.

No error.