#### JOHN STONE, JR., Substituted Plaintiff for MOSES GRIMES, v. CICERO GUION, AMELIA GUION and BUDDY GUION.

(Filed 8 January, 1943.)

1. Appeal and Error § 49a—

In a civil action to recover land, defendant claimed title by answer, alleging a parol contract with the plaintiff, to which a demurrer was sustained and affirmed on appeal to the Supreme Court. It appeared thereafter to the court that the locus in quo had, pending this action, been conveyed to another, who was thereupon substituted as plaintiff and defendant allowed to amend answer, which defendant did by setting up the identical defense already disposed of by demurrer on the former appeal. Sold: Defense property stricken out.

2. Evidence § 42c—

Where, in an action to recover lands and rents therefor-, defendant in her answer admits her possession of the lands described in the complaint, refers to the same deeds and plot as alleged in the complaint and offered in evidence, admits that the description covers the lands in question, her assignment of error, based on plaintiff’s failure to sufficiently describe the land, cannot be sustained.

3. Evidence § 43a—

The declarations of parties to suits are always admissible against, though not for, them.

4. Ejectment § 15: Evidence § 42a—

In an action to recover land, where plaintiff offered a chain of title to himself, and his predecessors in title, from a common source from which defendant asserts title, by deeds recorded and set out in his complaint, containing the same description of the locus in quo as is admitted in defendant’s answer, a prima facie case for plaintiff is made out and defendant’s motion to nonsuit was property overruled. O. S., 567.

Appeal by defendant Amelia Union from Bone, J., at June Term, 1942, of RobesoN.

With. John Stone, Jr., substituted as plaintiff for Moses G-rimes, tbis is tbe same action as was before us at the Fall Term, 1941, Grimes v. Guión, 220 N. C., 676, 18 S. E. (2d), 170.

This is a civil action to recover land and rents therefor and damages for waste committed thereon.

*549Tbe plaintiff in bis complaint alleges inter alia that he is the owner and entitled to the possession of a certain tract of land in Robeson County described in a deed from L. E. Whaley and wife to Cornelia Merrick Smith, and in a deed from Simon Peter Dunham and others, the children and heirs at law of Cornelia Merrick Smith, to Moses Grimes, and a deed from Moses Grimes to the plaintiff, John Stone, Jr.

This action was originally instituted by Moses Grimes and during the pendency thereof John Stone, Jr., was substituted as plaintiff upon it being made to appear to the court that Moses Grimes had conveyed the locus in quo to John Stone, Jr.

By the same order making John Stone, Jr., plaintiff, the defendant Amelia Guión was allowed to file amended answer. Amelia Guión filed answer and alleged that she was the owner of the locus in quo by reason of a parol contract between her and the original owner thereof, Cornelia Merrick Smith. This was the identical defense made and dismissed upon demurrer when the case was first before us. Grimes v. Guión, supra. Upon motion of the plaintiff this defense was stricken from the •answer.

At the close of the evidence a judgment as in case of nonsuit was entered as to the defendants other than Amelia Guión.

The case was submitted to the jury upon the following issues: “1. Is the plaintiff John Stone, Jr., the owner and entitled to the immediate possession of the tract of land described in the complaint filed herein?” and “2. Is the defendant Amelia Guión in the unlawful possession of said tract of land?” Both issues were answered in the affirmative, and from judgment predicated on the verdict the defendant Amelia Guión appealed, assigning errors.

F. D. Haclcett for plaintiff, appellee.

L. J. Britt and McLean & Stacy for defendant, appellant.

Schenck, J.

The first exceptive assignment of error is to the court’s striking out the defendant’s alleged defense of a parol contract existing between the original owner, Cornelia Merrick Smith, and the defendant Amelia Guión, to convey the locus in quo to her. John Stone, Jr., having received a deed for the locus in quo from the original plaintiff, Moses Grimes, during the pendency of the suit, took such title thereto as Moses Grimes possessed, and with the knowledge that the defense sought to be interposed had been adjudicated adversely to the defendant. The issue raised by the filing of this defense having been adjudicated in the former appeal, the defense was very properly stricken out when attempted to be set up a second time.

The exceptive assignments of error based upon the contention that the plaintiff has failed to show sufficient description of the land which he *550seeks to recover cannot be sustained, in view of tbe fact tbat tbe defendant in ber original, and in ber amended, answer admits tbat sbe entered into tbe possession of tbe lands described in tbe complaint and is in tbe possession of tbe same. Tbe complaint contains tbe same description as is contained in tbe deeds to wbicb these assignments of error are addressed, and refer to tbe same plat wbicb is recorded in tbe office of tbe Register of Deeds of Robeson County. Tbe defendant by reference in ber pleadings to tbe description as contained in tbe complaint wbicb is tbe same as tbe description contained in tbe deeds and plat offered in evidence admits tbat sucb description covers tbe lands wbicb are tbe subject of tbis action.

Tbe exceptive assignments of error based upon tbe admission in evidence of certain allegations contained in tbe defendant’s original answer filed in tbis cause are untenable. “ ‘Tbe declarations of parties to suits are always admissible evidence against, tbougb not for, them.’ ” Byrd v. Spruce Co., 170 N. C., 429, 87 S. E., 241.

Tbe appealing defendant’s demurrer to tbe evidence and motion for judgment as in case of nonsuit, C. S., 567, was properly overruled. Tbe plaintiff offered a chain of title to himself and bis predecessors in title from a common source from wbicb tbe defendant asserts title, namely, Cornelia Merrick Smith. Tbis chain of title consisted of a deed to John Stone, Jr., from Moses Grimes, the original plaintiff, a deed to Moses Grimes from Simon Peter Dunham and others, tbe children and tbe heirs at law of Cornelia Merrick Smith, deceased, and a deed to Cornelia Merrick Smith from L. E. Whaley and wife, all of wbicb deeds were duly recorded in tbe registry of Robeson County and contained tbe same description as tbat contained in tbe complaint, and was the same description as tbat of tbe land of which tbe defendant admits in ber answers she entered into tbe possession and remained therein. These deeds made out at least a prima facie case sufficient to be submitted to tbe jury, and, in tbe absence of any evidence to tbe contrary introduced by tbe defendant or otherwise, entitled tbe plaintiff to an instruction to tbe effect tbat if they found tbe facts to be as all of tbe evidence tended to show, or if they believed tbe evidence, they would answer tbe issues in favor of tbe plaintiff. Roberts v. Dale, 171 N. C. 466, 88 S. E., 778, and cases there cited.

If there was a conflict, and therefore error, in tbe first instruction of tbe court tbat tbe evidence of tbe plaintiff made out a prima facie case in bis favor, and the subsequent instruction to tbe jury tbat “if you believe tbe evidence and find tbe facts to be as it tends to show, I instruct you to answer tbe issue, Yes,” tbe error was harmless.

In tbe trial below we find

No error.