Wilmington,

May Term, 1799.

Alfred Moore, John Haywood. 2,1 cr 'udges*

#### - vs. Ashe.

■pjECTlSIENT. Walker had sold the father, and had given bond to execute and the father by deed declared that these land to the plaintiff’s a title at a future day, lands were purchased *104for the plaintiff, ike. In the time of the late war, the commissi* oners of the confiscated property, sold the land as a part of the estate of the father to the defendant, who took possession in 1786, and continued that possession to the present time: his grant from the state was procured about two years ago, and in 3 798, a short time before the institution oi this action, Walker executed a deed to the plaintiff.

Haywood, Judge.

-The defendant has bad a seven years pos* session, but without any colour of title for a great part o f the time, and therefore his possession will avail him nothing : But then Walker executed this deed to the plaintiff, when the defendant was in possession, claiming the land adversely, and Walker had no means to recover the possession but by action ; and therefore could not legalty execute a deed so as to transfer his right of entry to the plaintiff.

Verdict and judgment for the defendant.