This is an action of trespass q. c. fregit. The pleas are"liberum tenementum" and "not guilty." The first plea admits the fact that the plaintiff was in possession of the close described in the declaration, and that the defendant did the acts complained of, raising only the question whether the close described was the defendant's (311) freehold or not. 2 Greenleaf Ev., sec. 626. But under the plea of "not guilty" the defendant may give in evidence any matters which go to show that he never did the acts complained of; for example, that he did not enter the plaintiff's close; so he may show that the freehold and immediate right of possession are in himself, or in one under whom he claims title; thus disproving the plaintiff's allegation that the right of possession is in him. 2 Greenleaf, 513. Under the first plea, if it stood alone, the plaintiff would have had to prove nothing but the amount of damages he had sustained; and the burden of proving that the freehold was in the defendant (if the fact was so) lay upon him. Under the other plea,not guilty (the defendant may plead double), the plaintiff was driven to the necessity of sustaining by proof the affirmative allegation in his declaration, that the defendant broke and entered his close and built thereon his stables.
The eastern abuttal of the close, as described in the plaintiff's declaration, is Watson's line. The plaintiff, to show his constructive possession of the place when the defendant entered and built his stables, began his evidence by exhibiting a grant made to John McFarland for 150 acres of land and dated 18 August, 1787. The first line of the patent ran to Smiley's corner (Gulledge's grant of 1774, or 5), then with and beyond his line south 60 east 180 poles to a stake among three pines on Watson'sline; then with and beyond it south 35 west 125 poles; then north 67 west 184 poles to the beginning. The plaintiff then introduced a *Page 220 deed, dated 30 December, 1816, from A. Nicholson to Angus Gilchrist, for the same land and described by the same boundaries. He then proved that A. Gilchrist entered and possessed the said lands up to his death, in 1834, when he devised it to his son James Gilchrist, who took it in possession. James Gilchrist conveyed the same land to the (312) plaintiff, John Gilchrist, by deed dated 20 January, 1840, who entered and possessed it up to the commencement of this action.
The distance called for in the plaintiff's second line gives out before it reaches Watson's line as contended by the plaintiff; he, however, insisted that he had a right to go to the Watson line called for in his title deeds; and he offered witnesses to prove that it had been so reputed and understood for a long time. The defendant objected to parol evidence as inadmissible to establish where Watson's line ran, before the plaintiff had laid a foundation for such evidence by showing some written document that Watson ever had a line for any land in that neighborhood, and he insisted that the plaintiff should be nonsuited in case of his inability to produce some written document to that effect. The court, however, refused to nonsuit the plaintiff, and let in the parol evidence. We think that the defendant has no right to complaint of this, because, independent of the plaintiff's right to prove a line of Watson by reputation, the court had no right to nonsuit if the plaintiff was willing to risk a verdict against him. The defendant did not, however, rely upon an error in that decision and stop his case. He proceeded and exhibited a grant for a 100-acre tract of land to one Thomas Gaddy, dated in 1773, and a deed for the same lands from T. Gaddy to Alexander Watson, dated in 1776, and thus, himself, showed a line of Watson as called for. Both parties then admitted that the call for Watson's line in the plaintiff's title deeds must be the western boundary line of the Gaddy grant. And where that western line ran, or lay, was the bone of contention between the parties.
The plaintiff insisted that the red dotted line designated as X. N.Y. was the true Watson line; and the defendant (who had married Watson's daughter, and had purchased of him the two tracts of land (313) mentioned on the plat, to wit, the Gaddy grant of 100 acres and the Alexander Watson grant of 250 acres) insisted that the black line, designated as running from black L. to 2, was the eastern boundary of the John McFarland grant, and was the western line called for in the plaintiff's deeds. If his position was true, the locus in quo would be the defendant's freehold. The land had been granted, and if the stables were within the boundaries of the plaintiff's title deeds, then the long-continued adverse possession of the John McFarland land, from 1816 to 1843, under color of title, would bar McFarland and his heirs, and give a good title to the plaintiff. The plaintiff proved that he had cleared a *Page 221 field of 30 or 40 acres soon after he purchased the land in 1840, up to within 80 yards of the stables, and they were built by the defendant in 1843. The defendant then proved that he had a field, and had continued in possession of it, claiming under the color of title he derived from Watson, for more than seven years.
He proved that his field extended west of the red dotted line N. Y. To repel the force of this testimony, the plaintiff offered the record of an action of ejectment which had been brought by Angus Gilchrist, as lessor of the plaintiff, against the defendant, in 1819 or 1820, in consequence of a controversy that then arose between them about the said boundary line, in which there was a verdict and judgment for the plaintiff. This evidence was objected to by the defendant, but was admitted by the court. We think that the judge did right in admitting the evidence for the purpose for which it was offered in this case. The land was described in the declaration in that suit in the same manner as it is in the present declaration, and in the grant to McFarland; and on the recovery by Angus Gilchrist, the present defendant abandoned the land on the western side of the line N. Y. as having been recovered in that suit, upon the ground that N. Y. was the boundary between the parties, or, at least, the plaintiff so contended, and it was a (314) proper question for the jury whether the defendant had so abandoned, and, if so, for what reason; for it would be an argument for the plaintiff upon the question of boundary if the defendant had admitted as far back as twenty-five years that the boundary was in truth as the plaintiff now claims. Now, to that end it was material to give in evidence the record of the former suit, in order to show for what land and by what boundaries the recovery there was, and thus satisfy the jury of the defendant's reasons, immediately after that trial, for removing his fence and placing it where he did.
The defendant contended that the plaintiff could not maintain this action, though he had established his title up to the red dotted line X.Y., because he had not gained possession of the locus in quo at the date of his writ. The court said that this action might be maintained for the first entry if the plaintiff had a constructive possession of the locus at the time the wrongful entry of the defendant was made, although he had not regained possession at the date of the writ. We concur in this opinion, and have given our reasons in Smith v. Ingram, ante, 175. The defendant also insisted that at the time the act complained of was committed he was as much in possession as the plaintiff. The court charged the jury that if the defendant, when he removed his fence, after the trial in the ejectment, intended to place it on the red line X. Y., so as not to inclose any land west of that line, but did by mistake place it so as to include a part of the land west of that line, it would not avail to *Page 222 give him possession up to the line H. I., even if that was the boundary of the Watson grant of 250 acres. We see no error in this part of the charge of his Honor. Where the tenant claims by a disseizin ripened into a good title by lapse of time, he must show an actual, open, and exclusive possession and use of the land as his own adversely to the (315) title of the defendant. It must be known to the adverse claimant or be accompanied by circumstances of notoriety. 2 Greenleaf, 5, 557. If the defendant intended to place his fence on the line and to abandon all the land west of that line (which was a question proper for the jury), then the accidental circumstance that the laborers in erecting the fence placed a small part of it west of the line would not satisfy the requirements of the law that the defendants's possession west of that line must be adverse to the title of Gilchrist. Green v. Harman, 15 N.C. 158. The defendant insisted that the plaintiff must stop at the termination of his distance, and then his eastern line must be the black line L, 2, as there was no evidence of a Watson line in 1787 or at any period anterior thereto. Where another known line is called for, and the distance gives out before reaching the line called for, the distance is to be disregarded. The defendant is mistaken when he says there is no evidence of a Watson line in 1787 or before; for Watson purchased the Gaddy tract of land in 1776; and the lines of that tract after that date were called Watson's lines, as we learn from Watson himself, in his survey of his grant for 250 acres, surveyed 10 November, 1785. In that survey the lines of the Gaddy land are called Watson's lines; and whether this evidence was furnished on the trial by the plaintiff or the defendant is quite immaterial. The defendant insisted that the line H. I. was the western line of the Watson grant of 250 acres, and that he had been in possession for more than seven years of the lapped part before the plaintiff took possession in 1840; and he contended that his seven years possession under Watson's grant gave him a better title to the locus in quo than the plaintiff.
The answer to this portion of the defense is that the seven years possession by the defendant of the lapped part could not be made out without resorting to the possession of the very small part of the (316) land that was by mistake included within the defendant's fence when he in fact intended, as the jury had found, to place it on the red line. That possession of the land by the defendant inside of the fence west of the red line was not an adverse possession, in the opinion of the judge and jury; and a seven years possession (not adverse) never ripens the tenant's title into a perfect title; for an adverse possession is one taken exclusively and upon a claim to hold as his own against the true owner.
We cannot discover any error in the decisions of the judge, unless it *Page 223 may be the admission in evidence of the judgment and execution against John McFarland; if, indeed, that be an error. The title deeds exhibited by the plaintiff, beginning with that from Nicholson, and the evidence of the continued possession from 1816 up to this time, gave him just as good a title without the judgment and execution as with them. They, therefore, were immaterial to the plaintiff's right to recover in this action; and, being so, it is not necessary that we should decide on their validity, as their admission in evidence by the judge was immaterial, and, therefore, founds no ground for a new trial.
PER CURIAM. No error.
Cited: Loftin v. Cobb, 46 N.C. 412; Rogers v. Ratcliff, 48 N.C. 238;Mode v. Long, 64 N.C. 435; Maxwell v. Jones, 90 N.C. 327; Smith v.Headrick, 93 N.C. 213; King v. Wells, 94 N.C. 352; McLean v. Smith,106 N.C. 179; Hill v. Dalton, 140 N.C. 13; Locklear v. Savage, 159 N.C. 238;Belk v. Vance, 165 N.C. 675; McCaskill v. Lumber Co., 169 N.C. 26.
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