#### S. R. FOWLE & SON v. D. C. WARREN.

(Filed 29 September, 1915.)

Deeds and Conveyances — Tax Deeds — Color of Title — Disseizin—Adverse Possession — Declarations—Evidence.

Where the grantee under a sheriff’s deed for taxes relies upon his deed as color of title, and it appears that he has lived on the lands with the original owner, since deceased, cultivating them, within the seven years period, evidence tending to show declarations of the original owner, made since the tax deed, to the effect that the lands belonged to the grantee therein, who was permitting him to remain there until his death, and that he could not sell the timber growing thereon for that reason, is sufficient to show disseizin of the original owner of the tax title, presenting a question for the determination of the jury; and in this case it is held that the testimony of the declarations of the original owner was sufficient evidence of acknowledgment of the tax title from the date of the tax deed.

Appeal by defendant from Justice, Jat tbe February Term, 1915, of Beaufort.

Action to remove a cloud from title. In 1898 Isaiah. Rowe was the owner in fee of the land in controversy. On 1 May, 1898, the land was sold for taxes and on 3 March, 1899, the sheriff executed a deed therefor to the defendant Warren. Warren failed to make the affidavit and to give the notice required by sections 64 and 65, chapter 169, *525Laws of 1897. "Warren was tbe nepbew of Eowe, and Eowe continued to live on tbe land until a short time before bis death in July, 1901, and this action was commenced in January, 1907.

Tbe defendant relied upon tbe tax deed as a valid conveyance of tbe land, and, if not valid, contended that it was color of title, and that be bad held adversely under it for more than seven years.

Tbe plaintiff claims tbe land under conveyances from tbe heirs of Eowe.

Tbe defendant offered evidence tending to prove that be entered into possession of tbe land as soon as be got tbe tax deed; that be commenced farming on it, cutting rail timber, and cultivating it.and using it like any other property.

At tbe conclusion of tbe evidence bis Honor instructed tbe jury if they believed tbe evidence to answer tbe first issue, as to tbe ownership of tbe land, in favor of tbe plaintiff, and tbe defendant excepted.

There was a verdict and judgment in favor of tbe plaintiff, and tbe defendant appealed.

Ward & Grimes for plaintiff.

Small, MacLean, Bragaw & Rodman for defendant.

AlleN, J.

It was held, upon tbe former appeal in this action (166 N. C., 446), that tbe tax deed under which the defendant claims was color of title, and' it was said in tbe opinion: “Tbe tax title being merely color of title, for tbe reason above given tbe burden was on Warren to show that be acquired tbe adverse possession prior to tbe death of Isaiah Eowe. It is true, be testified that be ‘entered into possession of the land,’ but bis evidence is that Isaiah Eowe was then living on tbe land, as be bad been for many years previous, and that be continued there until a very few days of bis death. Warren did not show any act or assertion of adverse possession to Eowe, who remained on the land, and there is no evidence that be paid rent or otherwise acknowledged tbe title and possession of D. C. Warren. There is no act of disseizin shown. From all that appears, both continued to live on tbe land as prior to said sale, without any change in tbe attitude of tbe parties to tbe possession. There is no evidence of tbe exclusive possession of Warren or any acknowledgment on tbe part of Eowe.”

Adhering to this statement of tbe law, it follows that tbe charge of bis Honor is erroneous, if there is evidence in this record that Eowe remained in possession of tbe land by permission of tbe defendant Warren, and acknowledged bis title and possession.

A. H. Pippin, a witness for tbe defendant, testified on tbe second trial: “I live near Core Point. I knew Isaiah Eowe; did not know all of tbe Eowe land in controversy. I know tbe piece of land. I know *526about the fact of its being sold for taxes and Mr. Warren buying it. After he got the deed he cut timber off it and cultivated the land. It was part cleared and part woods. There was a small piece cleared up, about five or six aeres. I had a conversation with Mr. Rowe about it, went to him one time to rent his timber, and he told me he could not rent it, it belonged to Mr. Warren; and I told him it looked like he was living on the place, and I thought it belonged to him, and he told me Mr. Warren had bought it for taxes, and that it belonged to him; and I spoke to him about his living on the place, and he told me Mr. Warren was letting him stay there his lifetime without objection. He lived there in the house until a right short time before his death.”

This evidence was not in the record on the former appeal..

It is true, the witness Pippin does not state the exact time when he had the conversation with Rowe, but his evidence is susceptible of the construction that Rowe acknowledged the title of Warren from the date of the purchase at the tax sale, and the defendant was entitled to have it considered by the jury.

New trial.