#### O. E. HATLEY et al. v. W. C. HAMMER et al.

(Filed 28 March, 1928.)

Trial — Directed Verdict — Directed Verdict Erroneous on Conflicting Evidence.

A directed verdict to an issue is erroneous when the evidence thereon is conflicting.

Appeal by defendants from Grady, J., at August Term, 1927, of Chatham.

Action for tbe recovery of land and damages for cutting timber. Tbe jury were instructed to answer tbe first issue “Yes” if they found tbe facts to be as testified to by all tbe witnesses. Tbe following verdict was returned:

1. Are tbe plaintiffs tbe owners and entitled to tbe possession of tbe tract of land described in tbe complaint? Answer: Yes.

2. If so, have tbe defendants wrongfully entered upon said lands and cut timber thereon as alleged in tbe complaint? Answer: Yes.

3. Is tbe plaintiff’s cause of action barred by either of tbe several statutes of limitations pleaded in tbe answer? Answer: No.

4. What damages are tbe plaintiffs entitled to recover of tbe defendants, if anything, for such wrongful acts ? Answer: $120.

Judgment for tbe plaintiffs and appeal by defendants upon assigned error.

Seawell & McPherson for plaintiffs.

Siler & Barber and W. B. Brock for defendants.

Pee Curiam.

On 12 April, 1884,. Joseph Riddle and bis wife executed a mortgage to John Williams conveying tbe land in controversy. Tbe mortgage was registered 7 May, 1884, and some time after Christmas, 1889, tbe land was sold under tbe power conferred by tbe mortgagors. J. J. Hatley became tbe bigbest bidder, but Jobn Williams took tbe land and went into possession. There was evidence for tbe plaintiffs tending to show continuous possession by themselves and those under *866whom they claim title until 1897, and afterwards in 1901 and 1902. There was other evidence also; but on behalf of the defendants there was at least some evidence in contradiction, the probative force of which was a matter for the jury. Under these circumstances a directed verdict was improper, and for this reason the defendants are entitled to a

New trial.