#### ANNIE CLEMMONS v. MALISSA JACKSON et al.

(Filed 19 April, 1922.)

1. Trespass — Damages—Equity—Cloud on Title — Actions—Costs—Trials.

In an action for trespass and for damages the plaintiff, after trial of issues as to trespass, etc., may not abandon these contentions upon the trial, and have the court consider the action as an equitable one to remove a cloud upon the title, and so avoid the payment of the full amount of the costs incident to the litigated issues.

2. Same — Pleadings—Issues—Appeal and Error.

Where, in an action for trespass and for damages, the plaintiff alleged title to the locus m quo under his deed, and the defendant, admitting this paper title, alleged ownership in a part thereof by adverse possession: Eel&, upon the withdrawal of all claims of trespass and the consequent damages, it was error to the defendant’s prejudice for the trial judge to regard the action as a suit to remove a cloud upon the plaintiff’s title, ignore the issues raised by the pleadings, and tax each party with one-half of the costs.

3. Costs — Equity—Cloud on Title — Statutes.

Where the defendant disclaims title to lands in a suit to remove a cloud thereon, the plaintiff is chargeable with the costs under the express provisions of our statute, C. S., 1743.

Appeal by defendant from Gonnor, Jat tbe Fall Term, 1921, of BeuNswioe:.

Tbe court entered judgment as follows:

“This cause, coming on to be beard before George W. Connor, judge presiding, and plaintiff having in open court announced that she would *383not ask tbat an issue as to trespass upon tbe lands described in tbe complaint, nor as to damages, be submitted to tbe jury, and baying moved for judgment upon tbe pleadings tbat sbe be decreed tbe owner of tbe land described in tbe complaint, and tbe court being of tbe opinion tbat tbe allegation of ownership is not denied in tbe answer:

“It is, therefore, upon motion of Emmett Bellamy, Esq., and Lorenzo Medlin, Esq., attorneys for plaintiff, ordered, considered, adjudged, and decreed tbat tbe plaintiff is tbe owner and is in possession of tbe land described in tbe complaint.

“Tbe court further finds tbat tbe action as now presented is one for removal of cloud on title, and tbat defendant now disclaims title to tbe land described in tbe complaint; tbat at a former term of court an order of survey was made without objection, and tbat said survey was made; tbat at a subsequent term this cause was tried by a jury, a verdict rendered, and same was set aside by tbe judge presiding, and a new trial ordered.

“It is now ordered by tbe court tbat tbe costs of this action be paid, one-balf by plaintiff and one-balf by defendant.”

Defendant excepts and appeals.

Emmitt Bellamy and Lorenzo Medlin for plaintiff. .

Robert W. Davis and S. L. Dosher for defendants.

HoKE, J.

We are unable to find anything in this record to uphold a judgment against defendant for tbe costs, or any part of it. It appears from a perusal of tbe pleadings tbat plaintiff filed bis complaint alleging ownership of a specified tract of land, describing same by metes and bounds; tbat defendants bad wrongfully entered on same and cut and removed therefrom timber and timber trees, and were wrongfully attempting to farm said lands to plaintiff’s damage $50; tbat defendants were insolvent, and unless restrained plaintiff’s loss would be irreparable; and asked judgment tbat plaintiff be declared tbe owner, for $50 damages, and tbat tbe defendants be restrained.

Defendants answered, admitting tbat plaintiff bad a deed for “certain lands” from one J. "W. .Brooks, and denying each and all allegations of wrong and trespass alleged against them, and denying tbat defendants are insolvent. Defendants further answered and alleged ownership and occupation under claim of right for thirty years of certain described lands, and tbat defendants lay no claim to any part of tbe land alleged to belong to plaintiff, except so much thereof as may be included in tbe deeds under which defendants claim and occupy, as stated.

Upon tbe issues thus made, and apparently at a former term, a survey was bad by order of court, and tbe issues arising on tbe pleadings having *384been submitted to and determined by tbe jury, tbe verdict was set aside by tbe court and a new trial ordered. In tbis condition of tbe record tbe cause coming on for further bearing at tbe present term, and plaintiff, as appears from bis Honor’s judgment, having stated tbat sbe would not insist on an issue as to trespass or damages, upon such statement bis Honor, treating tbe action as one to remove a cloud from plaintiff’s title, entered judgment of ownership in her favor, and tbat “each party pay one-balf of tbe costs.”

Having thus far presented and maintained tbe position tbat defendants bad wrongfully trespassed upon her property and caused tbe accrual of tbe incidental cost in investigation and trial of these litigated issues, plaintiff should not now be allowed to abandon tbis position and tax tbe cost incurred to defendants’ prejudice without having it in some way properly determined tbat these defendants have wrongfully resisted her claim. Starr v. O’Quinn, 180 N. C., 92; Brown v. Chemical Co., 165 N. C., 421.

It would seem to be a fair interpretation of these pleadings as a whole tbat defendant avers and intends to aver ownership of so much of plaintiff’s claim as may be included in tbe deeds and occupation of defendants, and disclaims as to tbe remainder, and on tbat interpretation an issue is raised as to whether tbe lands contained in plaintiff’s deed cover any of tbe lands claimed and owned by defendant as set up and described in tbe answer. If plaintiff desires to suffer a nonsuit on such an issue, sbe may do so, but in tbat case sbe must submit to a judgment of tbe costs incurred in tbe action.

Even on tbe theory tbat tbe action may now be properly construed as one to remove a cloud from title, if defendant’s answer is to be dealt with as a disclaimer of ownership, and tbe judgment of bis Honor so treats it, in tbat case tbe statute applicable, C. S., 1743, expressly provides tbat tbe defendant shall not be subjected to costs.

There is error, and tbis will be certified tbat tbe judgment be set aside and tbe cause further considered.

Error.