#### I. P. SHELLY and W. H. SHELLY v. GARFIELD GRAINGER and Wife, SALLIE GRAINGER.

(Filed 5 April, 1933.)

1. Ejectment C lb—

Plaintiff in ejectment lias the burden of proving by tlie greater weight of evidence his good title against the world or against the defendant by estoppel.

*4893.Same — Evidence of plaintiff's title by adverse user held sufficient to be submitted to the jury.

Where in an action in ejectment involving a dispute in the boundary between the parties as called for in their deeds, the plaintiff introduces evidence tending to establish the line claimed by him by agreement, acquiescence and adverse user, and the defendant introduces evidence tending to establish the line as claimed by him, the conflicting evidence is properly submitted to the jury under correct instructions from the court as to burden of proof.

3. Ejectment D b — Instruction to jury in this action in ejectment held to be free from reversible error.

In this action in ejectment the charge of the court to the jury in respect to adverse possession, lappage and constructive possession to the outermost boundaries of the deeds of the parties, and the statement of the respective contentions of the parties in respect to the evidence, is held to be free from reversible error.

4. Appeal and Error J e — Admission of evidence in this case held harmless in view of the whole record.

In this action in ejectment there was plenary evidence tending to support the line between the parties as claimed by the plaintiff and the admission in evidence of a deed to defendant’s predecessor in title tending to establish the line as claimed by plaintiff is held harmless on the present record.

5. Appeal and Error J d—

The burden is on appellant to show prejudicial error, the presumption being against him.

Appeal by defendants from Devin, J., and a jury, at November Term, 1932, of Columbus.

No error.

This is a civil action in ejectment, brought by the plaintiffs against the defendants to recover lands described in the complaint, as follows: “Farms Nos. 1, 2 and 7 on plat of land formerly belonging to R.'J. 0. Ward, plat of which is on record in Columbus County, register of deeds office in Book D-3, page 600. . . . All three tracts containing 76.68 acres, more or less.”

The answer denied plaintiffs’ title, set up ownership in fee simple to part of the land, and pleaded the 7-, 21- and 30-year statute of limitations in bar of any recovery. Only lot 1 was in dispute at the trial.

The issues submitted to the jury and their answer thereto, was as follows : “Are the plaintiffs owners and entitled to the possession of the land in controversy, designated on the court map by the letters and figures A, B, C, D, E, 4 and A? Answer: Yes.”

This was shown on the court map as Lot 1. The court below signed judgment in accordance with the verdict. Defendants made numerous *490exceptions and assignments of error and to tbe judgment as signed, and appealed to tbe Supreme Court. Tbe material ones and necessary facts will be set forth in tbe opinion.

Tucker & Proctor for plaintiffs.

P¡. M. Toon and B. G. Grady for defendants.

ClarksoN, J.

Tbe defendants made motions for judgment as of non-suit at tbe close of plaintiffs’ evidence and at tbe close of all tbe evidence. C. S., 567. Tbe court below overruled these motions and in this we can see no error.

Tbe defendants claim that tbe burden was on plaintiff to show adverse possession and there was no sufficient evidence to be submitted to tbe jury on this aspect, therefore plaintiffs ought to have been nonsuited. We cannot so bold.

It is well settled in this jurisdiction that in an action of ejectment, plaintiff must recover, if at all, on tbe strength of bis own title, and not on tbe weakness of bis adversary. Plaintiff in ejectment must show title good against tbe world or good against defendant by estoppel, weakness or defendant’s title making no difference.

Tbe evidence on tbe part of plaintiffs was to tbe effect that “A” to “B” which was a road, was tbe well defined boundary of Lot 1, in dispute, and defendant Garfield Grainger, and those through whom be claimed, so recognized this as tbe dividing line by agreement, acquiescence and conduct. That their deed called for 76.68 acres and it was a body of farm and timber land, and tbe line in controversy in tbe deed called for from “A” to “B,” was tbe true dividing line. That defendants did not know where tbe Carteret line was when Grainger purchased tbe land, that defendants’ deed covered about 30 acres, that “A” to “B” was tbe dividing line and if tbe Carteret line as contended by defendants was from “E” to “4” tbe defendants would have some 60 acres instead of 30 acres of land — bis deed called for about 30 acres.

On tbe other band tbe evidence on tbe part of defendants was to tbe effect that tbe line from “E” to “4” was tbe Carteret line and tbe true line called for in bis deed. Tbe plaintiffs’ evidence was to tbe effect that at numerous times and periods much timber bad been cut on tbe 30-acre tract (No. 1) and some near defendants’ home, without objection at any time and within 4 feet of tbe road “A” to “B.” On tbe other band, defendants’ evidence was to tbe effect that north of tbe line from “A” to “B” from “E” to “4” was tbe true dividing line — the Carteret line; Garfield Grainger, defendant, testified, in part, that “In tbe fall of 1931, after I got moved there, I put three buildings on tbe *491disputed land; two automobile sbeds, a shelter and a barn for peas and plunder. I built it especially to put peas in. I have had hog pens and hog lots on this disputed land since I have been there. I have continued to use the disputed land. I have cut wood on it and cross ties, and did not hear no dispute until Mr. Shelly bought it. I have cleared about three-quarters of an acre, or something like that, north of the cart path in front of the house and had it in cultivation.”

The evidence of both plaintiffs and defendants in regard to the true dividing line, were questions of fact for the jury to determine.

The court below charged fully as to the burden of proof being on plaintiffs to establish title by the greater weight of the evidence. The court also.charged fully the law as to the several ways of establishing title in this State. The court charged: “I used the phrase ‘adverse possession,’ and it is necessary for you to understand what that means. The best definition I have seen is given by our Supreme Court in the case of Locklear v. Savage, in 15.9 N. C., 236 (at pp. 237-8) in which the Court uses this language: Adverse possession ‘consists in actual possession, with an intent to hold solely for the possessor to the exclusion of others, and is denoted by the exercise of acts of dominion over the land, in making the ordinary use and taking the ordinary profits of which it is susceptible in its present state, such acts to be so repeated as to show that they are done in the character of owner, in opposition to right or claim of any other person, and not merely as an occasional trespasser. It must be decided and notorious as the nature of the land will permit, affording unequivocal indication to all persons that he is exercising thereon the dominion of owner. . . . The possession must of course be not only adverse, as we have defined it, but open, notorious and continuous, and the extent of it must be shown by known and visible boundaries.”

In Locklear v. Savage, supra, it is further said, at p. 239 : “It is true that in proving continuous adverse possession under color of title nothing must be left to mere conjecture. The testimony must tend to prove the continuity of possession for the statutory period, either in plain terms or by ‘necessary implication.’ ”

The court below further charged: “So, where a person offers a deed or paper-writing purporting to convey title setting out metes and bounds and enters into the actual occupancy of a portion thereof, and holds it continuously for seven years, the law extends the possession to the outermost bounds set out in his deed; where there are known and visible lines and boundaries. There is this rule of law; that where contesting claimants have deeds both of which cover the same land, and where each claimant is in the adverse possession of a portion of the land, then that *492invokes tbe rule of law with respect to lappage, wbicb bas been very succinctly expressed by our Court in tbe case of Penny v. Battle, in 191 N. C., 220 (at p. 224, quoting from McLean v. Smith, 106 N. C., at p. 116), in wbicb tbis language is used, and wbicb I charge tbe jury is law witb respect to tbat feature: 'It is settled tbat where tbe title deeds of two rival claimants to lands lap upon each other, and neither is in tbe actual possession of any of tbe land covered by both deeds, the law adjudges tbe possession of tbe lappage to be in him who bas tbe better title. If one be seated on tbe lappage and tbe other not, tbe possession of tbe whole interference is in tbe former. . . . But if both have actual possession of tbe lappage, tbe possession of the true owner, by virtue of bis older title, extends to all not actually occupied by tbe other.’ ”

Tbe court then applied tbe principle tó tbe evidence adduced by plaintiffs, defendants excepted and assigned error. We do not think tbis exception and assignment of error can be sustained. When tbe court came to consider tbe evidence adduced by defendants, it applied tbe same principle of law as to defendants’ evidence: “The defendants contend you ought to find from tbe testimony of Long and others that tbe land line E-4 is tbe Carteret line referred to in tbe pleadings, and tbat be bas shown possession of a portion of tbe land, that should, carry his possession to the outermost bounds of his deed, and that he is entitled to extend that ¡possession to that line; tbat be bas been cutting timber and gathering wood and straw and exercising possession upon tbe lands in dispute, building a garage, barn and bog pen, and tbat be bas raised tobacco and potatoes, and tbat even if tbe plaintiffs’ deed covers it, that his deed covers it also, and there is a lappage, and that he is seated on the lappage, and that you should answer this issue No, tbe plaintiffs are not entitled to it, and tbat you should not find from tbe greater weight of tbe evidence tbat tbe plaintiffs have made out their title by tbe greater weight of tbe evidence.” Defendants’ contention cannot be sustained.

Conceding, but not deciding, tbat tbe charge was error in regard to constructive possession, although tbe plaintiffs’ evidence was to tbe effect tbat it was purchased as a whole, 76.68 acres, and a deed made to it as a whole. Basnight v. Meekins, 121 N. C., 23; Mintz v. Russ, 161 N. C., 538; Lumber Co. v. Cedar Works, 168 N. C., 344. línder tbe evidence and tbe facts and circumstances of tbis case,.it was not prejudicial or reversible error as the plaintiffs’ evidence was to the effect tbat “A” to “B,” the road, was tbe established line between plaintiffs and defendants. Tbe evidence of defendants was to tbe contrary. In tbe charge both were “fed out of tbe same spoon.” Then, outside of tbis charge, *493on constructive possession, there was sufficient competent evidence on the part of plaintiffs that “A” to “B” was long recognized as tbe true dividing line between plaintiffs and those through whom they claimed and defendants. In fact, this evidence on the part of plaintiffs was sufficient to indicate an estoppel to claim north of the road from “A” to “R.” On plaintiffs’ evidence the use of a small portion of an acre by defendants was negligible.

The defendants’ exception and assignment of error to the following portion of the charge of the court below, cannot be sustained: “The plaintiff also offers in evidence deed of Todd and wife to Jesse Hinson, dated 16 November, from whom Joshua Norris acquired the Grainger land, which calls for a boundary from the Bull Hole back to the point designated by the letter “A.” Upon this testimony the plaintiffs contend that their allegations have been made good and that they have shown the true location of the line to be from ‘A’ to ‘B’; that there had been agreement forty years or more ago, in which the agreed line was established from “A” to “B,” and that both sides occupied and possessed the land up to that line, and if Mr. Grainger and those under whom he claims have crossed that line, it was merely as an occasional trespasser, and that there were no acts of possession, nor any attempt to possess until Mr. Grainger cultivated a fraction of an acre beyond the line “A” to “B,” and that was beyond the bounds of the Grainger deed, and his possession there was not open sufficiently to ripen.”

If the introduction of the Todd deed was error, we think it harmless on this record. There was much evidence on the part of plaintiff that the agreed line between the lands in controversy was the road between “A” and “B.”

From a careful reading of the record, it seems that the able and learned judge in the court below tried this case with care, plumbing the law as laid down by this Court applicable to the facts. Ve have examined the well prepared briefs of both sides of this controversy. The question to be decided was mainly one of fact for the jury to determine. It has been long settled in this jurisdiction that the presumption as to error is against appellant and that error must be affirmatively established. The burden of showing error and that it is material is on appellant. In re Ross, 182 N. C., at p. 478. "We see in law, on the record, no prejudicial or reversible error.

No error.