#### C. T. ROANE and F. L. SILER v. JULIUS McCOY and M. M. McCOY.

(Filed 21 December, 1921.)

1. Evidence — Surveys—Maps.

Where the. plaintiffs and defendants claim title to the same lands by prior and junior grants from the State, respectively, the latter under color, and the ownership of the locus in quo depends upon the lappage of the plaintiffs’ lands upon that of the defendant, it is competent for one who has surveyed a part of the lands to locate on his map the remaining part from a map that had been since made by another, properly in evidence, as illustrating his own survey, and to testify that the defendants, taking the other evidence as true, had cut timber from the plaintiff’s land if the map made by the second survey was correct as to certain lines marked as boundaries.

3. Evidence — Grants—Maps.

Where the plaintiff claims title to the locus m quo under a grant from the State, testimony of a witness upon the question as to whether he knew the location of the grant was properly excluded when the grant had pot been introduced in evidence.

*728S. Appeal and Error — Harmless Error — Evidence—Subsequent Admissions of Evidence.

Excluded evidence afterwards admitted on tire trial is not reversible error, and evidence relating to tbe rights of an interpleader and tbe defendant between themselves becomes immaterial when tbe verdict is rendered in tbe plaintiff’s favor.

4. Instructions — Deeds and Conveyances — Adverse Possession — Coloi’— Boundaries — State Grants.

Where tbe title to tbe locus m quo is dependent upon tbe allegation in tbe answer tbat tbe lands under tbe plaintiff’s grant from tbe State overlapped tbe land claimed by adverse possession under color, and this is the only disputed fact, an instruction to tbe jury tbat defendant’s possession, outside of tbe plaintiffs’ boundaries, would not be extended to defeat the latter’s title, and putting the burden on tbe plaintiff to show bis title, and on tbe defendant to show tbe lappage upon bis own land, is not reversible error.

Appeal by defendant from Long, J., at tbe Spring Term, 1921, of MacoN.

Civil action to recover damages for trespass on land.

Plaintiffs claimed title under a grant from tbe State to themselves, No. 16,105, dated 31 December, 1903, and registered 27 January, 1904.

Tbe defendants alleged tbat on 20 May, 1864, tbe State issued grant No. 2,924 to II. H. P. McCoy; tbat in 1875, or prior thereto, H. H. P. McCoy sold tbe land described in this grant to D. McDowell McCoy, bis brother, and executed a deed in fee, which bad been lost; tbat H. H. P. McCoy bad delivered to D. McDowell McCoy grant No. 2,924, after making the. following endorsement, which was signed also by bis wife: “I, II. P. McCoy, do assign tbe within land to D. McDowell McCoy to have and to bold forever. This 14 January, 1875”; tbat D. McDowell McCoy bad died intestate without issue, and bis real estate bad descended to bis brothers, who bad agreed to a verbal division of tbe land; tbat grant No. 2,924 bad been allotted to J. J. W. McCoy, and tbat be bad entered into possession; tbat thereafter, on or about 3 April, 1895, deeds bad been mutually executed by J. J. W. McCoy and W. L. McCoy, by which J. J. W. McCoy bad conveyed all bis interest in tbe estate of D. McDowell McCoy east of a certain described line, and W. L. McCoy bad conveyed to J. J. ~W. McCoy all tbe land described in grant No. 2,924, which lies to tbe west of tbe line referred to; tbat J. J. W. McCoy bad conveyed this land to tbe defendant M. M. McCoy, and tbat said McCoy has been in tbe adverse possession under color and title more than twenty-one years.

Tbe heirs at law of H. H. P. McCoy bad previously been allowed to interplead and file a complaint alleging tbat they were tbe owners of tbe land in grant No. 2,924.

*729There seems to have been no serious controversy as to the location of grant No. 16,108; but the interpleaders and the defendants, claiming 'respectively to be tbe owners of tbe land in grant No. 2,924, contended that the junior grant lapped upon or was embraced in the senior grant. The-controversy turned upon the location of grant No. 2,924; for if this grant and grant No. 16,105 did not interfere, there was no ground for denying that the plaintiffs were the owners of the land described in their grant. The interpleaders alleged that neither the plaintiffs nor defendants had title, and alleged that the interpleaders were the sole owners.

The issues and the answers were as follows:

“1. Are the plaintiffs, Siler and Eoane, the owners of the lands described in the complaint, and within the red lines on the map, designated by the red letters and lines from red A to B, C, D, E, F, Gr, and back to red A? Answer: ‘Yes.’

“2. Have the defendants, Mrs. M. M. McCoy and Julius McCoy, un-. lawfully trespassed upon the lands referred to in the first issue, as alleged in the complaint? A. ‘Yes.’ '

“3. If the defendants have so wrongfully trespassed, what damages, if any, are the plaintiffs entitled to recover of the defendants, Mrs. M. M. McCoy and Julius McCoy? A. ‘$10.’

“4. Is the defendant Mrs. M. M. McCoy the owner of the lands embraced under State grant 2,924 ? Answer:.

“5. Does State grant No. 2,924, under which Mrs. M. M. McCoy and the heirs at law of H. H. P. McCoy claim, include any portion of the lands included in grant 16,105; and if so, what portion thereof as represented on the map ? Answer: ..

“6. Are the defendants, the heirs at law of II. H. P. McCoy, the owners of the lands embraced under State grant No. 2,924, as alleged by them in their interplea ? Answer: .

“7. What damages, if any, is Mrs. M. M. McCoy entitled to recover •of the plaintiffs? Answer: .”

Judgment was entered for the plaintiffs, and the defendants appealed.

T. J. Johnston and R. D. Sislc for plaintiffs.

Henry Or. Robertson for appellants.

Adams, J.

The first five exceptions must be overruled. John H. Dalton, a witness for the plaintiff, testified that he had surveyed all the lines of the grant under which the plaintiffs claimed title, except the last three; that he had prepared the plat; that the last three lines followed the courses and distances called for; and that the red lines represented the land embraced in the grant issued to the plaintiffs. The witness was *730then permitted to testify, over the defendants’ objection, that the line from E to F “will run north of some cut timber.” A. T. Siler, a witness for plaintiffs, testified that he surveyed the boundaries of the plaintiffs’ grant in 1893 and in 1894; that he had a record of his surveys, showing that his plat corresponded with Dalton’s; that he could indicate on Dalton’s map the survey he had made; and that he had found an oak at one of the corners. To all this evidence the defendants excepted.

The former witness described the lines he had actually surveyed and the others, which he said indicated the last three calls in the grant, and testified in effect that if these lines represented the true location of the grant, timber had been cut inside the boundaries; and the examination of the latter witness was so carefully limited by the court that it could have been understood only as illustrating the testimony of the witness as to the surveys he had previously made.

The plaintiffs called as a witness Julius McCoy, one of the defendants, to prove the alleged trespass. On cross-examination counsel for the defendants asked the witness if he knew the location of the grant under which the defendants claimed title. The grant had not then been offered in evidence, and the answer was properly excluded. His Honor, however, explicitly stated that the witness might be examined as to the location, in case the grant should afterwards be introduced by the defendants.

The excluded evidence, which is the subject of the ninth exception, was afterwards admitted; and exceptions eight, ten, eleven, twelve, and seventeen were relevant only to the controversy between the interpleaders and the defendants, and upon return of the verdict for the plaintiffs became immaterial.

His Honor instructed the jury that unless the defendants and the interpleaders had shown by the greater weight of the evidence that the lines of the plaintiffs’ grant lapped upon the grant under which the defendants claimed, the possession of the defendants or interpleaders, or of those under whom they claimed, outside the boundaries of the plaintiffs’ grant would not be extended so as to defeat or affect the title of the plaintiffs. The instruction must be considered as a part of the entire charge, and in connection with the admissions in the pleadings. His Honor had previously told the jury that upon the plaintiffs rested the burden of establishing their title by the greater weight of the evidence. In their answer the defendants did not expressly deny the plaintiffs’ title, but only denied that the plaintiffs were the owners of such part of grant No. 16,105 as may lap upon grant No. 2,924. It will be observed that the defendants attempted to defeat the plaintiffs’ recovery by showing an interference of the two grants. Under these circumstances the charge of his Honor as to the burden of proof and as to possession under grant No. 2,924 is free from error; and the instruction as *731to tbe measure of damages is a substantial compliance witb tbe rule stated in Whitfield v. Lumber Co., 152 N. C., 214.

Tbe remaining exceptions have received full consideration, and must be disallowed. . Tbe controversy between tbe parties was reduced almost entirely to questions of fact pertaining to tbe location of tbe grant under wbicb tbe defendants claimed, and tbe jury adopted tbe contentions of tbe plaintiff. ¥e find in tbe record no sufficient cause for disturbing tbe verdict or tbe judgment.

No error.