#### Z. V. BERRY and S. A. MORRIS v. RICHMOND CEDAR WORKS.

(Filed 11 October, 1922.)

1. Evidence — Grants—Deeds and Conveyances — Boundaries—Location of Lands — Substantive Facts — Questions for Jury — Trials.

Where, in an action of trespass, a surveyor has testified that be knows the boundaries of the land in dispute as described in the complaint, he may testify that they are within the natural boundaries set out in a grant from the State, upon which the plaintiff relies, and such evidence, being of a substantive fact, is not objectionable as involving a vital matter on which the parties were at issue, or that it assumed to determine an essential element of the verdict for the jury to decide.

3.Trespass — Evidence •— Title — Color—Adverse Possession — Statutes— Principal and Agent.

In an action of trespass involving title to lands, the plaintiff relied on adverse possession under color, and the defendant also upon such possession. Both parties relied upon the possession of their respective agents occupying camps on the land about fifty yards apart. Evidence held competent, in plaintiff’s behalf, to show that defendant’s agent had offered money to plaintiff’s agent to quit possession, during such occupancy, as a part of the res gestee, and also competent under the circumstances of the case, as tending to show the defendant’s agent afterwards acquired the possession of the land with the defendant’s approval, and for the purpose of evicting the plaintiff’s watchman peaceably, if possible, and forcibly, if necessary.

3. Evidence — Deeds and Conveyances — Color — Adverse Possession— Fraud.

A.deed in the chain of title of a party in an action of trespass does not lose its character as color under which sufficient adverse possession will ripen his title, by reason of fraud in a prior grantor, the deed being valid until set aside by a court of equity.

4. Instructions — Adverse Possession — Deeds and Conveyances — Color— Boundaries — Appeal and Error.

Where a party to an action of trespass claims title under color by adverse possession, a requested prayer for instruction that disregards the essential element of possession up to known and visible lines and boundaries is properly refused.

5. Limitation of Actions — Statutes—Adverse Possession — Posting Lands —Title.

The posting of land, without possession, is not equivalent to the pos-sessio peáis against the owner, or more than a notice of a claim, and is not such adverse possession as will ripen the title to the claimant.

6. Deeds and Conveyances — Formal Parts — Interpretation—Grantor and Grantee.

The formal parts of a deed are construed together to ascertain the intent of the grantor, and though it is necessary that there should be á grantor and a grantee, it is not required that their names should appear *188in any particular part of tlie deed, where there is no repugnancy, if the deed is signed properly by those assuming to convey, and it elsewhere appears that the grantor and grantee are mentioned sufficiently clear to designate them as the respective necessary parties.

Appeal by plaintiff from Daniels, J., at January Term, 1922, of TYRRELL.

Civil action. Tbe issues were answered as follows:

“1. Are plaintiffs owners and entitled to possession of tbe lands described in tbe complaint? Answer: ‘Yes.’

“2. Did defendant Richmond Cedar Works wrongfully and unlawfully trespass upon same? Answer: ‘Yes.’

“3. What damage, if any, has plaintiff sustained? Answer: ‘One cent.’ ”

Judgment for plaintiffs; appeal by defendant.

Aydlett & Simpson for plaintiffs.

T. H. Woodley and Thompson & Wilson for defendant.

AdaMS, J.

Tbe action was brought to recover damages for alleged trespass, but as tbe defendant admitted possession and tbe removal of timber, tbe controversy was practically confined to tbe first issue. Tbe plaintiffs introduced a grant to Josiab Collins, dated 9 July, 1796, a deed from W. E. and H. L. Coboon to E. N. Hussey, dated 28 November, 1883, and mesne conveyances to tbe plaintiffs. Failing to exhibit a connected chain of title from tbe State, tbe plaintiffs undertook to establish their right to recover by showing adverse possession for seven years under known and visible lines and boundaries and under colorable title. Tbe defendant contended that even if those under whom tbe plaintiffs claim bad thus acquired title, it was divested by tbe defendant’s subsequent adverse possession, under color for tbe statutory period. Tbe action was brought prior to 1 May, 1917. C. S., 426, 427, 428.

Several of tbe exceptions entered of record were abandoned on tbe argument; those brought forward and relied on have received our careful consideration, but some of them are so obviously untenable as to require no discussion.

Exception 2: T. B. Shallington, a surveyor, testified for tbe plaintiffs that tbe land described in tbe complaint lies within tbe boundaries of tbe Collins grant, and tbe defendant excepted on tbe ground that tbe question involved one of tbe vital matters on which tbe parties were at issue, and that tbe answer assumed to determine an essential element of tbe verdict. In tbe complaint tbe land is not described by course and distance, but by reference to natural objects; and, after testifying without objection that be knew tbe Collins grant and tbe boundaries of tbe *189land in controversy, tbe witness said tbat tbe locus in quo is situated witbin tbe lines of tbe grant, or, in substance, tbat inside tbe grant are tbe natural objects called for as tbe boundaries of tbe locus in quo. Tbis was evidence of a substantive fact, wbicb, in view of tbe preceding evidence, was not incompetent on tbe ground tbat tbe witness invaded tbe province of tbe jury. Tbis exception is without merit. Indeed, a witness for tbe defendant afterward testified to identically tbe same thing.

Exceptions 17, 18, 35, 36: Tbe plaintiffs offered evidence tending to show tbat before bringing suit they built a camp on tbe land in controversy and put in charge of it a watchman named Sykes; tbat tbe defendant built another about fifty yards away, wbicb was occupied by Bose Owens; and tbat on one occasion Abner Bryant acted as watchman in tbe absence of Sykes. Tbe court permitted both Bryant, and Sykes to testify tbat while they were serving in tbe capacity of watchmen for tbe plaintiffs, Bose Owens offered them $10 as a consideration for their surrendering possession of tbe land to him. To tbis evidence tbe defendant excepted on tbe ground tbat Owens was not authorized by tbe defendant to make such offer. It is well settled tbat tbe declarations of an agent wbicb are made after tbe transaction, and are not a part of tbe res gestee, áre incompetent, and tbat what an agent says witbin tbe scope of bis agency, characterizing or qualifying bis act, is admissible as a part of tbe res gestee. Branch v. R. R., 88 N. C., 575; Southerland v. R. R., 106 N. C., 104; Hamrick v. Tel. Co., 140 N. C., 151. Direct testimony of tbe agent’s authority was not necessary. Tbe evidence relating to tbis subject, considered in its entirety, and particularly with reference to tbe circumstances under wbicb Owens subsequently took possession of tbe camp and tbe defendant’s evident approval thereof, admits of tbe construction tbat Owens, at tbe time of tbe alleged conversations, was acting in furtherance of tbe defendant’s purpose to evict tbe plaintiffs’ watchmen, peaceably if possible, .and forcibly if necessary; and being susceptible of tbis interpretation, tbe evidence was properly submitted to tbe jury.

Exceptions 44, 45, 46, 47: Tbe defendant introduced tbe deposition of H. L. Oohoon, and excepted to tbe exclusion of certain portions thereof tending to show tbat E. N. Hussey, in 1883, bad procured tbe execution of tbe Oohoon deed by fraud. Tbe exceptions are based upon tbe two propositions: (1) tbat tbe Ooboons never bad title to tbe land, and their possession was not colorable; and (2) tbat Hussey’s fraud, in any event, vitiated tbe Coboon deed as color of title.

In Tate v. Southard, 10 N. C., 121, Judge Henderson defined color of title as a “writing upon its face professing to pass title, but wbicb does not do it, either from a want of title in tbe person making it or tbe *190defective mode of conveyance that is used”; and his definition has been repeatedly accepted and approved. It is therefore utterly immaterial whether or not the Oohoons had title, for they executed and delivered to E. N. Hussey a deed which unquestionably constituted color in their grantee. Likewise, the second proposition must be resolved against the defendant. In Seals v. Seals, 165 N. C., 409, one of the questions was whether a deed procured by the grantee’s fraud is color of title, and the Court held, Walleer, J., writing the opinion, that the deed was valid until set aside for fraud; that it was merely voidable at the instance of the grantor; and that the intervention of a court of equity was required to declare it invalid. In the instant case, if the excluded evidence had been admitted and the jury had found as a fact that Hussey fraudulently induced the execution of the Cohoon deed, its quality as color of title would not thereby have been destroyed.

Exceptions 50, 51: The requested instructions, which are the subject of- these exceptions, are defective in that they disregard the essential element of possession up to known and visible lines and boundaries under colorable title.-

Exception 52: The court declined the prayer for instruction that keeping the land continuously and conspicuously posted for seven years was such adverse possession as would ripen the defendant’s title, no one else being in the actual occupation. Admitting as a general proposition that the posting of land does not constitute sufficient adverse possession, the defendant contends that the locus is swamp land, uninhabitable, unfit for cultivation, and not susceptible of such actual possession as is usually available. It may be observed that the prayer contains no suggestion of the number of the notices or the places at which they were posted.

It is very generally held that the prevention of a trespass, whether by a written notice or by the employment of agents for the purpose, is not such actual possession as is necessary to mature title to real property. The act of posting land is not equivalent to the possessio pedis, and as against the owner is nothing more than notice of a claim. To hold that title to land may be defeated, when the owner has only constructive possession, by the claimant’s posting of notices which may never come to the owner’s knowledge, would amount to a ruling sanctioned neither by reason nor by established precedent. Lynde v. Williams, 68 Mo., 360; Lumber Co. v. Hughes, 38 S. R. (Miss.), 769; Cedar Works v. Stringfellow, 236 Fed., 264.

Exceptions 34, 37, 48: These are exceptions to his Honor’s denial of the defendant’s motion to dismiss the action as in case of nonsuit. The ground of these exceptions, as stated in the defendant’s brief, is the alleged invalidity of the deed from George A. Hussey to the plaintiff Z. Y. Berry, and from Berry to his coplaintiff, S. A. Morris. In the *191first of these deeds George A. Hussey and his wife are designated as parties of the first part, and Z. Y. Berry as party of the second part. Following a recital of the consideration, without further mention of the names of the alleged grantors, are the words “and by these presents do bargain, sell, and convey, with general warranty unto the said Z. Y. Berry and heirs and assigns.” The habendum is “to the said G. A. Hussey, his heirs and assigns forever.”

The deed was as signed by Hussey and his wife and duly probated and registered. Their names, it is true, are not in the granting clause, but they are in the premises; and it appears from the entire instrument that it was the intention of “the parties of the first part” to convey to the-grantee the land described in their deed. 18 O. J., 172, sec. 54, and cases cited. We are also of opinion that the recital in the habendum is not a fatal defect. Certainly there must be a grantor, a grantee, and a thing granted, and when a person undertakes to convey his land there must be another to whom he may convey it, for he cannot convey it to himself. Dupree v. Dupree, 45 N. C., 166. The question presented here is adverted to in Hafner v. Irwin, 20 N. C., 570. There the grantee in the premises was Alfred Hafner, and in the habendum, M. W. Curry. Daniel, J., said: “Dwight, in the premises of the deed, bargained and sold the property to the plaintiff, his heirs, executors, etc. However, in the same deed the habendum is to M. W. Curry, his heirs and assigns in trust, etc. All the parts of a deed which precede the habendum, taken together, are called the premises; of which it is said, the office is rightly to name the grantor and grantee, and to comprehend the certainty of the thing granted. But though the grantee should first be named in the habendum, the grant to him will yet be good, provided there was not another grantee named in the premises .(Co. Lit., 26 b, note), or if there were, provided the estate given by. the habendum to the new grantee was not immediate, but by way of remainder. The habendum part of a deed was originally used to determine the interest granted, or to lessen, enlarge, explain, or qualify the premises. But it cannot perform the office of divesting an estate already vested by the deed; for it is void if it be repugnant to the estate granted in the premises.” 2 Bla. Com., 298; Goodtitle v. Gibbs, 5 Barn. & Cress., 709; 4 Kent’s Com., 468.

The application of these principles sustains also the validity of the deed from Berry to his coplaintiff. The habendum is substantially identical with that in the Hussey deed, and the only difference as to the parties is this: in the Berry deed the grantee is not named in the first clause of the deed as party of the second part, but is so designated in the granting clause. In this jurisdiction it is held that a deed of conveyances shall be considered in its entirety when the question of its legal sufficiency or of the intention of the parties is to be determined. The *192principle is reiterated in Triplett v. Williams, 149 N. C., 396. There-Brown, J., ver y pertinently said: “We concede all that is contended for as to the common-law rule of construction, and that it has been followed in this State. But this doctrine, which regarded the granting clause and the hahendum and tenendum as separate and independent portions of the same instrument, each with its especial function, is becoming obsolete in this country, and a more liberal and enlightened rule of construction obtains, which looks at the whole instrument without reference to formal divisions, in order to ascertain the intention of the parties, and does not permit antiquated technicalities to override the plainly expressed intention of the grantor, and does not regard as very material the part of the deed in which such intention is manifested.” Blackwell v. Blackwell, 124 N. C., 270; Rowland v. Rowland, 93 N. C., 214

Upon inspection of the record, we find

No error.