From the manner of stating the case on appeal, (256) it is apparent, we think, that the new trial was given to the defendants, in the court below, not as a matter of discretion on the part of the judge, but because it was thought that, in law, they were entitled to it; and that his Honor anticipated, and intended that the correctness of his action in that particular, should become the subject of *Page 210 review in this court, as a question of law. So understanding it, we have considered the question, which otherwise we should not have assumed to do.
As to the remark made to counsel by the judge, at the moment of excluding the deed offered in evidence by the plaintiffs, we do not perceive how it can be legitimately complained of. It surely was no intimation of any opinion on his part whether any fact was fully or sufficiently proved; nor was there anything in its nature that could possibly influence the jury and incline their minds for or against either party. So far as appears from the statement of the case, it was simply an act of complaisance to counsel, intended to lighten the effect of the disappointment, which the rejection of the testimony had produced. The position of a judge would be rendered intolerable, if every word uttered during the progress of a trial could be thus wrested, and made the subject of an exception; and especially should this not be permitted when a party takes his chances for a verdict, and only urges an objection when the opportunity for correction has passed away.
Upon other grounds, however, we are of opinion that a new trial was properly awarded to the defendants. It is not necessary that we should consider them all, for if any one of the exceptions taken was, in fact, well taken, it is the same, in its consequences, as if all were so, since it is impossible to know certainly upon which of the several phases of the case the jury acted in determining their verdict.
As we understand a portion of the charge to the jury, it (257) was in effect, to tell them, that notwithstanding the guardian of Alexander Malloy, jun., may not, upon the death of the father in 1846, have taken actual possession of the land unaffected by the grandmother's dower, and his whole management thereof consisted in merely listing it for taxation, and paying the taxes thereon, still if they believed that the grandmother recognized her grandson's title, and consented to hold under him, then her possession became his, and would ripen his title under color into a perfect title. Thus interpreted, we conceive it to be unsupported by authority, or any just reason.
Although the guardian, when examined as a witness, made a general statement that at the death of Alexander Malloy, sen., in 1846, he took the management for his ward, of so much of the land as was not covered by the dower of the widow of Archibald Fairley, it clearly appears, when taken in connection with other parts of his testimony, that such management was confined to his having listed the land and paid the taxes due thereon, and that there was no such actual occupation of the land by him, or any one for him, as would give notice to the true owner, Mrs. Mary Ann Malloy, and put in motion the *Page 211 statute of limitations against her. To have that effect, it was not sufficient to assert a mere claim of title, but there must have been some actual, open and visible occupation of the land, or some part thereof, begun and continued under a claim of right. "The principle on which the statute of limitations is predicated," says Angell on Limitations, Sec. 390, "is not that the party in whose favor it is invoked, has set up an adverse claim for the period specified in the statute, but that such adverse claim is accompanied by such invasion of the rights of another as to give him a cause of action, which, having failed to prosecute within the limited time, he is presumed to have surrendered." A mere claim of title of itself gives no right of action to the owner, and there can be no adverse possession against which the true owner cannot have an action to recover the (258) possession.
Nor is it possible that the want of such notoriety and openness of hostile possession, could be remedied by any concessions that might be made to the ward's title by the tenant of the dower. Upon the decease of the ancestor, Archibald Fairley, the title and the possession of the land, subject to his widow's right to dower, was cast upon his daughter, Mary Ann, as his only heir; and upon the assignment of her dower the widow took possession, not adversely to the heir, but in subserviency to her title, and so continued to hold; and neither she, herself, nor any one claiming under her, could acquire any right against the heir by virtue of the statute of limitations, at least not without some open positive change of possession, accompanied with some manifestation of an unequivocal purpose to hold adversely to her, such as would have subjected the party coming in under such change of possession to an action at the instance of the heir. There is no pretence in the case that anything occurred to disturb the relations established by law, between the dower tenant and the heir, or which could possibly justify an action on the part of the latter against the former. Upon the termination of the dower estate by death in 1857, the guardian took actual possession for his ward, and then it was, and not until then, that adverse possession, visible and exclusive, and such as challenged the owner to an action, commenced for the first time; and it was the duty of his Honor so to have instructed the jury, and his failure to do so amounted to an error, such as entitled the defendants to have the verdict against them set aside, and a new trial given them.
And even if his Honor had fixed that period as the one at which the adverse possession was first taken as against the owner, (then Mr. Patterson,) there was still another error committed, of which the defendants might justly have complained. It is not denied that the actual possession of the guardian, after having continued (259) *Page 212 from 1857 to 1863, was then interrupted and abandoned during the year 1864-65 — no one occupying the land, throughout the whole of those two years, in any way that could possibly put the owner to bringing a possessory action for it; and according to all the authorities this hiatus occurring in actual occupation of the land, put a stop to the statute then running against the owner. Ang. on Lim., Sec. 413. Holdfast v. Shepard,28 N.C. 361.
At all times there is a presumption in favor of the true owner and he is deemed by law to have possession coextensive with his title, unless actually ousted by the personal occupation of another; and so too whenever that occupation by another ceases, the title again draws to it the possession, and the seisin of the owner is restored; and a subsequent entry, even by the same wrongdoer and under the same claim of title, constitutes a new disseisin, from the date of which the statute takes a fresh start.
The fact that such an interruption occurred during the interval between 1861 and 1870, when the statute of limitations was suspended, cannot affect the case. In contemplation of law, it was a fact accomplished that in 1864-65 the owner made entry upon the land, and thereby destroyed the effect of all prior adverse possession; and as a thing done, it must be attended with all the consequences as if done at any other time.
We take it that it would hardly be disputed that the acknowledgment of a debt, as still subsisting made in 1865 by a bond debtor, could be given in evidence against him, in an action brought upon the bond in 1870, and thereby repel the presumption of payment, and if so, why not the fact that, by entry, the owner of land had broken that continuity of possession upon which the bar of the statute depended?
(260) It must be apparent from the foregoing considerations, that the new trial was properly awarded the defendants, and we need not therefore consider the other points made in the case.
As to the suggestion made here, that the plaintiffs were entitled to recover of the oldest defendant, since as to her the statute prevailed, even if it commenced to run in 1870, it is sufficient to say, that no such judgment was asked for. So far as the case discloses, a judgment as to all the defendants was insisted on; and even if satisfied therefore that they had established their case as to that one (which, however, is far from being so,) we could not say that the court erred in not granting them that which they failed to ask for.
The judgment of the court below in granting the new trial is affirmed.
No error. Affirmed. *Page 213 Cited: S. v. Brown, 100 N.C. 524; Brinkley v. Smith, 131 N.C. 133;Woodlief v. Wester, 136 N.C. 164; Monk v. Wilmington, 137 N.C. 324;Graves v. Causey, 170 N.C. 176, 177; Clendenin v. Clendenin, 181 N.C. 473;Forbes v. Long, 184 N.C. 40; Freeman v. Ramsey, 189 N.C. 796; Rookv. Horton, 190 N.C. 183; Perry v. Alford, 225 N.C. 147; Newkirk v.Porter, 237 N.C. 119.