#### J. H. SIMMONS et al. v. GOLDSBORO LUMBER COMPANY, W. A. WIMSATT et al.

(Filed 20 March, 1918.)

Instructions — Deeds and Conveyances — Title—Adverse Possession.

In an action to recover land where there is evidence that defendant had been in adverse possession under color of title for a sufficient time and the jury has so found under proper instructions from the court, it is not error by the judge to treat as invalid a deed with which the defendant has not connected his paper title.

Appeal by plaintiffs from Stacy, J., at April Term, 1917, of JoNes.

W. B. Mclver and B. A. Nunn for plaintiffs.

A. B. Ward, Thomas B. Warren, J. K. Warren, and A. B. MacLean for defendants.

ClabK, C. J.

The complaint alleges title to seven adjoining tracts of land, numbered from 1 to 7. The plaintiffs claim under Thomas Hall and attempted to deraign title by introducing certain grants to Kedar Knight and deeds to Thomas Hall and also some of the deeds in Wim-satt’s title to prove the common source. The plaintiff White testified that he was one of the heirs of Thomas Hall, had lived in Jones County all of his life and that so far as he knew none of the heirs of Hall had ever had possession of the land, or paid taxes on it, or asserted any other right to it, in consequence of which he and his associate Simmons had obtained a deed from the other heirs in 1913 for $50, although the land was worth at least a hundred times that sum. All the evidence corroborated these particulars.

No question of boundary is involved and the correct location of each tract by the court surveyor as shown on his maps is admitted. There are seven tracts shown on the map, numbered 1 to 7, inclusive, but adjoining No. 3 is a triangle of 30 acres at its southwest corner which is separated from No. 3, thus making eight tracts in all. These tracts may be grouped in two, according to their source of title, i. e., tracts 1, 2, the triangle to 3, 5, 6, and 7 are known as the “Williamson” or “Whit-ford” land, and tracts 4 and 3 (except the 30-acre triangle adjoining No. 3) as the “Eoy” land.

As to the above tracts known as the Williamson or Whitford land, the defendants’ record of title is based on a deed from Brown to Williamson in 1853, and descent from Williamson to his two daughters who married John N. and Hardy Whitford, the division between Hardy Whitford and the children of John N. in which this land was allotted to them and his widow, who in 1893 conveyed to Smith and Moore, who *233in 1902 conveyed tbe same to defendant Wimsatt. As to tract 4, tbe ■defendants’ record of title is based on deeds from Hatch, Sheriff, under ■execution against John Simmons to Stanley in 1824, Stanley to Jarman in 1825, Jarman to Erees in 1826, which tract was conveyed by Clerk and Master in Equity to Eoscue in 1860, Eoscue to Eoy in 1862, who •conveyed to Wimsatt in 1902.

Tract No. 3, except the triangular piece, was devised to John Eoy in 1803 and passed by a succession of mesne conveyances to the defendant "Wimsatt in 1903. The above chains of title are set out in the record, and so far as they fall short of a perfect paper title, the defendants rely 'upon color and possession, of which the proof is sufficient and conclusive, :and the court would have been warranted in instructing the jury to find for the defendants. The only doubt as to sufficiency of possession is as to 'Tract No. 1, and there trees were worked for turpentine. However, the issue, “Are plaintiffs the owners of any part of the land described in 'the complaint, and if so, what part?” was submitted under instructions presenting fully and fairly every phase of the evidence to the jury, who returned their verdict in favor of the defendants.

Upon examination of the exceptions, we find nothing requiring discussion except it may be exceptions 17 and 27, to the court’s > refusal to • charge, “The deed of Lemuel Hatch, Sheriff, to John Simmons, dated 2 January, 1820, is void on its face.” The plaintiffs claim that this •deed purports to be made by authority of a fieri facias bearing test second Monday in September, 1819, and returnable to the next term on sec- • ond Monday in December, while the deed recites that the sale was made 31 December, which was more than six days after the second Monday in December and therefore after the adjournment of that term.

The defendants, however, do not connect themselves with this deed, -and it is immaterial whether it be color of title or not. The court did not refer to this deed in its charge, but treated it as invalid by instructing the jury that they should find that the plaintiffs were the owners of 'the land unless defendants established title by color and possession. The .jury so found, and that necessarily disposes of exceptions 17 and 27.

After examination in detail of all the assignments of error, we find .'nothing of which the plaintiffs can complain. There has been, as found by the jury under a very careful and full instruction from the court, pos- . session by the defendants of each of the tracts under color of title for .more than the statutory period.

No error.