#### EDITH S. VANDERBILT v. S. F. CHAPMAN et al.

(Filed 22 December, 1917.)

1. Adverse Possession — Color—Admission of Title — Boundaries—Burden of Proof — Ejectment—Statutes.

Where defendant in ejectment admits plaintiff’s paper title to a 465 acre tract of land, but claims title to 169 acres thereof under color, and adverse possession of a few acres with constructive possession to the outer boundaries of his deed, under which he claims as “color,” the law presumes the possession to be under the true title, and the burden of proof is on the defendant to show the contrary.

2. Adverse Possession — Intent—Title—Color—Ejectment.

Adverse possession to ripen title to lands in the claimant under “color” must be under a claim of right with intent to claim against the true owner, and if it was by mistake, or equivocal in character, or without such intent, it iá not adverse within the meaning of the law.

3. Appeal and Error — Instructions—Adverse Possession — Burden of Proof.

Where the defendant in ejectment admits the plaintiff’s paper title, but claims a part of the lands by adverse possession under “color,” a charge by the court to the jury thart the burden of proof was on the plaintiff is reversible error, though he may properly- have placed the burden in another part of his charge, but without having corrected the error; and under Such circumstances the trial judge may set aside the verdict as a matter of law.

Appeal by defendants from Lane, J., at October Term, 1917, of BuNcombe.

Tbis is an action to recover land and to remove a cloud from title.

The plaintiff alleges that she is the owner of 465 acres of land particularly described, and that the defendants are in possession of about 169 acres thereof, asserting a claim thereto.

The defendants deny that the plaintiff is the owner of the land described in the complaint, on information and belief, and allege that they are the owners of 169 acres thereof, which is particularly described.

The following issue was submitted to the jury:

1. Are the defendants the owners of the land described in the first paragraph of the answer or any part thereof? Answer:

Upon the trial of the action the defendants made the following admission of record.

“It is admitted by the defendants that State grant No. 251 to David Allison, dated 28 November, 1796, registered in Book 2, page 458, containing 250, 240 acres, covers the locus in quo and that by connected mesne conveyances passing from the State to Allison and down to the plaintiff, that the plaintiff is the owner of all of the 465 acres described in the complaint, except so much thereof as the jury may find from the evidence that the defendants have acquired title to by adverse possession under color of title for seven years or longer.”

*12Tbe defendants own a tract of land known as the Clapp place, which adjoins the 169 acres, and they offered evidence tending to prove that they had cleared five or six acres, beginning on the Clapp place, and extending over on the 169 acres to the extent of about two acres, and that they had cultivated and were in possession of this two acres under color of title for more than seven years before the commencement of the action.

The plaintiff offered evidence that the clearing on the 169 acres was small and not of sufficient size to attract attention; that it was made by mistake and not under a claim of right and with no intent upon the part of the defendants to claim'beyond their boundary.

His Honor charged the jury that the burden was on the defendants on the first issue and he then instructed the jury as follows:

“That if the defendants or those under whom they claim entered upon the land described in said deed, or any part thereof, no matter how small, within the boundaries of the land claimed by the plaintiff and remained in possession of said part of said land so entered upon openly, notoriously and continuously for seven years, then the defendant’s title ripened to the entire boundary of the hundred and sixty-nine acres described in the deed, which is the land claimed by them in their answer, and it will be your duty to answer the first issue ‘Yes,’ unless you shall find that such possession was made and held by defendants by mistake, and was so insignificant as to be insufficient to give notice of the possession. That the burden is upon the plaintiff in this case to satisfy the jury by the greater weight of the evidence that such possession was by mistake and not sufficient to give plaintiff notice.”

The jury answered the first issue “Yes,” and his Honor set aside the verdict for errors of law in the charge, and defendants excépted and appealed.

J. G. Merrimon and, Harkins & Van Winkle for plaintiff.

A. Hall Johnston for defendants.

AxxeN, J.

The admission of the defendants that the plaintiff is the owner of the 465 acres described in the complaint, except so much thereof as defendants could show title to by seven years adverse possession under color of title, placed the burden of proof on the defendants (Land Co. v. Floyd, 171 N. C., 544), and it was in recognition of this principle that the first issue was framed as it is.

The real controversy, then, between the plaintiff and the defendants on the trial was as to the extent and character of the possession by the defendants of the small part of the land cleared on the 169-acre tract.

Possession which will ripen an imperfect into a perfect title must *13not only be actual, visible, exclusive, and continued for tbe necessary period of time, but it must be under a claim of right. “It is tbe occupation witb an intent to claim against tbe true owner wbicb renders tbe entry and possession adverse” (Parker v. Banks, 19 N. C., 485; Snowden v. Bell, 159 N. C., 500), and if tbe possession is by mistake or is equivocal in character, and not witb tbe intent to claim against tbe true owner, it is not adverse. Green v. Harman, 15 N. C., 163; King v. Wells, 94 N. C., 352; Land Co. v. Floyd, 111 N. C., 546.

In tbe last case tbe Court says, “Plaintiff contends that tbe evidence shows that defendant occupied only a small strip of tbe land just across tbe line, and that possession of this small piece was not sufficient to extend tbe adverse possession by construction to tbe boundaries of tbe deed, wbicb defendant claims as color of title.

This question was discussed by Chief Justice Ruffin in Green v. Harman, 15 N. C., at p. 162, where be said: “Tbe operation of tbe statute of limitations depends upon two things: Tbe one is possession continued for seven years, and tbe other tbe character of that possession — that it should be adverse. It has never been held that tbe owner should actually know of tbe fact of possession, nor have actual knowledge of tbe nature or extent of tbe possessor’s claim. It is presumed, indeed, that be will acquire tbe knowledge, and it is intended that be should. Hence, nothing will bar him short of occupation, wbicb is a thing notorious in its very nature, and that must be continued seven years in order to affect him, not that time to bring suit for redress of a known injury, but full opportunity to discover tbe wrong. To tbe extent of tbe occupation there is prima facie, no hardship in bolding that it is on a claim of title and adverse, and that tbe owner knew of it. Every man must be considered cognizant of bis own title, tbe boundaries of bis land, and of all possessions on it, either by himself or others. Ordinarily, possession taken by one of another’s land is of a part sufficient in quantity or value to show tbe jury that tbe possession was taken adversely, and also to afford unequivocal evidence to tbe other claimant of that intention. And so far as tbe actual occupation goes, it seems to furnish such evidence in almost all cases. If,' indeed, two persons own adjoining lands, and one runs a fence so near tbe line as to induce tbe jury to believe that any slight encroachments were inadvertently made, and that it was tbe desire to run on tbe lines, tbe possession constituted by tbe inclosure might be regarded as permissive, and could not be treated as adverse, even for tbe land within tbe fence, except as it furnished evidence of tbe line in a case of disputed boundary. Tbe line being admitted, it would not make a title where a naked adverse possession will have that effect, because there was no intention to go beyond bis deed, but an intention to keep within it, wbicb by a mere mistake be has happened not to do.” We followed this view of tbe law in Currie v. Gilchrist, 147 N. C., 648.

*14It is also well established with us that every possession of laud is presumed to be under the true title, and the defendants having admitted that the plaintiff has a paper title which she traces back to a grant by the State, this presumption would impose the burden upon them of showing that the plaintiff had lost her title by an adverse possession. Monk v. Wilmington, 137 N. C., 325; Bland v. Beasley, 145 N. C., 168; Land Co. v. Floyd, 167 N. C., 687.

If, therefore, the defendants were claiming the 169 acres by adverse possession, if the burden of proving this adverse possession was on them, and if the determination of the question depended on the nature and character of the possession which they had of a small clearing on the 169 acres, it follows necessarily that the burden was on them to prove that .they held the land in the clearing. openly, continuously and adversely, and with intent to claim against the true owner, and that it was error for his Honor to charge the jury that the burden was upon the plaintiff “to satisfy the jury by the greater weight of the evidence that such possession was by mistake and not sufficient to give plaintiff notice.”

The defendants say, however, that this instruction could not have misled the jury because his Honor charged the jury more than once that the burden of the first issue was upon the defendants, and they invoke the rule to which we adhere, that a charge must be considered as a whole.

It does appear from the record that his Honor charged the jury several times that the burden of proving adverse possession was on the defendants, but at no time that they must show that the land within the clearing was not occupied by mistake, but dealing with the charge in the aspect most favorable to the defendants, it presents the case of instructions upon a vital question that are inconsistent with each other, and if so, a new trial was properly ordered, as the Court cannot know which instructions a jury followed..

It is said in Raines v. R. R., 169 N. C., 193, “An error in the charge must be eliminated by a retraction of it or a proper explanation which will remove a wrong impression made by it, and the giving ,of another correct but conflicting instruction does not answer the purpose as it does not produce desired results,” and again, in Horton v. R. R., 162 N. C., 455, “In any view of the charge of the court, there are conflicting instructions on material points and under such circumstances this Court should. direct another trial. Williams v. Haid, 118, N. C., 481; Edwards v. R. R., 129 N. C., 78; Westbrook v. Wilson, 135 N. C., 402.”

We aré therefore of opinion that his Honor properly set aside the verdict on account of the error in his charge.

Affirmed.