#### WOODLEY TILGHMAN v. H. S. HANCOCK and GEORGE PATE.

(Filed 27 March, 1929.)

1. Adverse Possession — Actions—Deeds as Evidenced

Where the defendant relies upon his open, continuous, and adverse possession of timber lands for twenty years or more to establish his title, and not upon color of title, it is not error for the trial court to admit in evidence his deed to the land from the one under whom he claims as a circumstance in connection with the other and sufficient evidence, and when the evidence is conflicting the issue is for the jury to determine.

2. Adverse Possession — Nature and Requisites — Possession—Deeds— Presumptions.

There is no presumption of law that a claimant to land enters into possession under his deed thereto, and a deed alone is insufficient evidence of possession under claim of twenty years adverse possession.

Civil action-, before Grady, J., at November Term, 1928, of Lenoik.

Tbe plaintiff alleged that be was tbe owner of tbe land in controversy, and that'tbe defendant, Hancock, was committing a trespass tbereon by cutting timber. Plaintiff sought to establish title by proof of adverse possession for tbe statutory period. Tbe evidence tended to show that tbe grandfather and tbe father of tbe plaintiff bad been in possession of tbe property for more than twenty years prior to tbe commencement of tbe action. Tbe land in dispute was woodland, and tbe plaintiff further offered evidence tending to show that bis father bad cut and sold cross-ties, posts, piling and wood, and bad also taken for bis own use various quantities of ligbtwood for a period of years. A brother of plaintiff testified that “we went in there three or four dozen times each winter.” There was further evidence that tbe grandfather of plaintiff bad sold timber from tbe land in 1890 or 1891.

Tbe issue was as follows: “Have tbe plaintiff and those under whom be claims title, been in open, notorious, hostile and continuous possession of tbe land in controversy, under known and visible boundaries, twenty years prior to tbe commencement of this action?” Tbe jury answered tbe issue “Yes,” and judgment was rendered for tbe plaintiff, from which judgment defendant appe'aled.

Bouse & Bouse for plaintiff.

Cowper,.Whitaker & Allen and Thomas J. White, Jr., for defendants.

Bbogden, J.

Tbe plaintiff offered in evidence a deed from bis father and mother to himself, dated 21 April, 1920, and duly recorded 15 May, 1920, purporting to cover tbe land in controversy. This action was *781brought about 21 April, 1925. A map referred to in tbe deed was also offered in evidence. Tbe court instructed tbe jury tbat tbe deed was “not in itself evidence of title, but is allowed to be considered in connection witb other evidence.” Tbe defendant objected to tbe introduction of this evidence.

It is apparent tbat neither tbe map nor tbe deed was offered as substantive evidence. Tbe plaintiff did not claim tbat tbe deed was color' of title as contemplated by tbe law, but asserted tbat tbe deed was a circumstance tending to show tbe good faith of bis claim. There is no presumption of law tbat a purchaser takes possession under a deed. Prevatt v. Harrelson, 132 N. C., 250, 43 S. E., 800. Therefore, tbe deed of itself was not sufficient evidence of possession. As tbe deed was made before tbe controversy arose, tbe execution and recording thereof would be a relevant fact in connection witb other sufficient evidence tending to show a claim of title and adverse possession. Though not sufficient of itself for tbat purpose, under tbe circumstances the deed would be analogous in probative weight to tbe .listing of land and tbe payment of taxes thereon. Austin v. King, 97 N. C., 339, 2 S. E., 678; R. R. v. Land Co., 137 N. C., 330; 49 S. E., 350; Christman v. Hilliard, 167 N. C., 4, 82 S. E., 949.

Tbe general rule witb respect to tbe character of possession in such cases is thus stated in Gross v. R. R., 172 N. C., 119, 90 S. E., 14: “This possession need not be unceasing, but tbe evidence should be such as to warrant tbe inference tbat tbe actual use and occupation have extended over tbe required period, and tbat during it tbe claimant has from time to time continuously subjected some portion of tbe disputed land to tbe only use of which it was susceptible.” Tbe plaintiff offered sufficient evidence to bring tbe case within tbe rule. Tbe defendants offered evidence to tbe contrary, but tbe weight of tbe evidence was for tbe jury.

Exception was taken by tbe defendants to certain testimony of a surveyor, but tbe record discloses tbat testimony of tbe same nature as tbat objected to was given by tbe witness without objection in other portions of tbe testimony. Hence this exception cannot be sustained.

There are other exceptions in tbe record, but we do not think any of them warrant a new trial.

Upon tbe whole, tbe case presents disputed facts, and tbe jury has found those facts in favor of tbe plaintiff.

No error.