#### JAMES SHULER et al. v. BURNHARDT LUMBER COMPANY.

(Filed 24 December, 1920.)

1. Limitation oí Actions — Judgments—Estoppel—Adverse Possession.

A judgment in. an action involving tbe disputed title of land will not estop tbe losing party from showing his title by twenty years adverse possession since the rendition of the judgment, under known and visible metes and bounds.

2. Same — Evidence—Questions íor Jury — Trials.

Evidence that the loous in quo had been in the possession of a party, claiming title by adverse possession, and that he had used the lands for the purposes to which they were adapted, for more than twenty years, *649under known and visible metes and bounds, and, in tbis case, that be bad cleared and cultivated some of it every year, and bad continuously for tbe required period, taken from tbe tract rail timber, board timber, locust pins, and tan bark, is sufficient to take tbe case to tbe jury; and a motion for a judgment as of nonsuit upon tbe evidence will not be sustained.

Appeal by plaintiff from Bryson, J., at June Term, 1920, of G-raham.

Tbis is an action to recover damages for a trespass on lands embraced in grant No. 10391, entry No. 1178, as shown on tbe court map. Tbe grant was issued to J. B. Caringer and W. T. Shuler on 12 December, 1890. Plaintiffs are tbe heirs at law of W. T. Shuler.

At date of tbis grant, and up to bis death, W. T. Shuler, father of plaintiffs, and his wife, Eachel Shuler, were living on tracts 1058 and 4559 (Whitaker land), adjoining the above mentioned grant. All of the above lands were covered by grant No. 3140, entry 3029, issued to A. T. Davidson, dated 3 February, 1868, and under which the defendants claim. At November Term, 1895, of the Graham Superior Court, a judgment was rendered in a suit pending between A. T. Davidson and the heirs of W. T. Shuler, present plaintiffs, adjudging that Davidson was the owner of grant No. 3140, located as shown on the Crisp plat. There was evidence tending to show that at that date the plaintiffs had one field, which lapped over on entry No. 1178, 'shown on the map as field No. 1, and since that date have kept said field in cultivation and enlarged same, and have made two other fields on the said entry, to wit, Nos. 2 and 3. Field No. 3 has been cultivated for about 23 years by the Shulers, they claiming all the land as their own, and that the plaintiffs had claimed the same up to known and visible lines and bounds, using same adversely, for 23 years.

The court was of the opinion that the plaintiffs were estopped by the judgment of 1895, and therefore could not claim the land. Judgment of nonsuit was entered accordingly, and plaintiffs appealed.

T. M. J enhins and B. L. Phillips for plaintiffs.

W. M. Bell and T. A. Morphew for defendants.

Walker, J.,

after stating the case: The first question presented is, ‘Did the judgment in favor of A. T. Davidson, entered November, 1895, estop the defendants there (plaintiffs here) from acquiring title by adverse possession? We are of the opinion that the following cases are clear authority against this position: Wilson v. Brown, 134 N. C., 400; Reynolds v. Cathens, 50 N. C., 438; Eddleman v. Carpenter, 52 N. C., 617, Scarboro v. Scarboro, 122 N. C., 234. The Court, in Reynolds v. Cathens, supra, held that the possession of a grantor in a deed, who" holds over, after his deed was delivered, may be adverse. Judge *650 Pearson in bis opinion, said: “In respect to tbe possession of Sarab Wilkie tbe vendor, under whom botb parties claim, we are unable to see any principle of law wbicb prevents it from being adverse to tbe lessor of tbe plaintiff. Sbe was not bis tenant for years, at will or at sufferance, nor did sbe enter under or obtain possession from bim. As far as tbe case disclosed, sbe continued in possession without any understanding or permission on tbe part of tbe plaintiff’s lessor, notwithstanding tbe deed sbe bad executed, tbe legal effect of wbicb was to give plaintiff’s lessor right of possession, but in defiance of wbicb sbe maintained and continued her possession. It would, consequently, seem that this possession was adverse.” In Johnston v. Farlow, 35 N. C., 84, it was held that tbe old deed was not color, but that case recognizes that tbe possession can be adverse even after tbe deed was made. Of course, if after tbe execution of a deed with covenants a man can acquire title by adverse possession, be certainly can after a judgment wbicb gives tbe right to a writ of possession. It was held in Wilson v. Brown, supra, that tbe possession of a person, wbicb continues after bis land is sold under execution and deed made to tbe purchaser, is adverse to tbe purchaser, but tbe original deed to bim is not color of title after tbe sale.

These plaintiffs claim title by adverse possession under known and visible lines and bounds for twenty years, 'since tbe rendition of tbe Davidson judgment. Bev., 384.

Tbe second question is, Was tbe evidence of tbe plaintiffs, taken in its strongest light for them, sufficient to justify a finding by tbe jury that they bad held open, notorious, continuous, and adverse possession, under known and visible lines and bounds, for twenty years, since tbe date of tbe judgment, November, 1895?

An examination of tbe testimony of James Crisp, surveyor, shows that this tract of land is a well marked tract. Tbe evidence of James Crisp, Ed. Shuler, and James Shuler all shows that these plaintiffs bad used these lands for tbe purposes to wbicb they were adopted, from tbe date of tbe judgment down to tbe bringing of tbe action on 15 January, 1920. Some of tbe acres bad been cleared and cultivated every year, rail timber, board timber, locust pins, and tan bark bad been taken from tbe land all these years.

It is admitted in defendants’ brief that there was evidence to establish tbe contentions of plaintiffs, as to adverse possession, and we are of tbe opinion that there was sufficient evidence to fairly raise a controverted question for tbe jury, and therefore it was error to grant tbe nonsuit. Pláintiffs were claiming 20 years adverse possession, and not under color.

New trial.