It is conceded that the land in controversy belongs to the plaintiff by virtue of the deeds under which he claims, unless the title thereto has been divested and transferred to the defendant Lorena Ramsay, of whom the other defendants are tenants, by virtue of possession accompanied with color of title for the prescribed period of time. To sustain the defence, it was shown that Jacob Ramsay resided on land adjoining that in dispute, just south of the line 7, 8, 6, marked on the plat, until his death in 1844, since which his son William Ramsay continued the possession during his life and at his death devised the same, in 1863, to said Lorena, his surviving wife, designating it in the will as "all that part and parcel of land on which I now live, known and described as the Jacob Ramsay farm."
The defendants also introduced a deed executed in October, 1870, and having the signatures of eleven grantors, of whom five are the wives of five others so signing, in which their respective interests in the land therein described by marks and bounds are conveyed to the said Lorena Ramsay. In 1862 the tract was claimed by William Ramsay, and at his instance was surveyed and the lines run by Blackstock, and the course and distance as ascertained from his field notes are pursued in describing the land in the deed, and include that in dispute, with the other that had been in the occupancy of the Ramsays, father and son. The divisional line is designated in the plat as 6, B, A, J, I, H, G, F, E, D. The deed was proved to have been executed by all whose names are attached, except the fivefemes covert, and upon this probate admitted to registration in March, 1880.
It was in proof that Jacob Ramsay cleared and enclosed several acres north of the line 8, C, on which he built a stable, and these were used and cultivated by both himself and his son during their respective lives, a period of more than forty years. The devisee Lorena, has since her husband's death, continued to cultivate and raise crops on the enclosed territory, enlarging it by clearing other contiguous land, until at the commencement of the suit there were from ten to fifteen acres under fence and in use. *Page 647 During her residence on the devised tract, she has taken from the disputed part, outside of the enclosure, whatever and whenever required for use on the plantation, without hinderance from any one, timber for wood, rails, boards, and saw logs, and this up to the controverted boundary. If any adverse claimant removed any timber therefrom the fact was not known to her.
On the other hand, there was proof offered by the plaintiff, that a witness now forty-four years of age, when a boy, with others acting under the directions of his father, a mill owner, got material for the repair of the mill, when repairs were needed, from land south of the ridge-field at the asserted divisional line. That a former owner in 1868 got saw stocks on lands south of the ridge-field fence, and that the plaintiff after his contract of purchase in 1876 got wood and timber occasionally thereon, and directed his tenants to continue to get it after they had been notified not to do so. The disputed territory outside of that under fence is woodland, and if cleared, fit for agricultural uses.
The court instructed the jury upon the matter covered by the instructions asked, which are not necessary to be set out, as follows:
"The defendant admits that the plaintiff is the owner of the land in dispute, unless she has shown that she is the owner by color of title and adverse possession. Possession under color of title, to divest the estate of the owner, must be adverse, open and continuous, and without interruption from the owner. If the jury believe, from the evidence, that the plaintiff, and those under whom he claims, did continuously enter upon the woodland of the disputed territory, outside of the defendant's actual possession on said disputed territory, and get and remove the timber therefrom at his pleasure, and that he and those under whom he claims, continuously did these acts between the date when defendant's actualpossession under color of title shown by her began and the commencement of this action, and that the plaintiff and those under whom he claims did these acts under claim of title, then each was an entry under a claim of title, and *Page 648 an assertion of ownership, and if the jury shall believe that such acts were done without interference from defendant, they had the effect to break the continuity of the constructive possession of defendant, outside of her actual possession, and to defeat her claim to all the disputed territory of which she did not have the actual possession, if the jury shall believe there was such portion. The repeated exercise of ownership, in using the trees for their own purposes by the plaintiff and those under whom he claims, if the jury shall find from the evidence, that there were such acts of ownership, and the abstaining of defendants from any interference, if the jury shall find that the defendant did abstain from any interference, certainly must have the effect of preserving the plaintiff's title to all of that portion of the disputed territory of which the defendant did not have the actual possession, if there was such portion." Defendant excepted.
The judge, in charging the jury, read over the testimony of the witnesses as he had understood it and written it down, but he told the jury that he had only written it as he understood it, and that they were not bound by his recollection of it, but must be the sole judges themselves as to what the witnesses had sworn to.
The jury, in response to the issues submitted to them, returned their verdict in these words: "We give the defendant all the land she has under fence. We give to the plaintiff all the rest of the disputed land and no damages." And the court rendered judgment accordingly for the plaintiff. From the judgment the defendant appealed. Assuming the acts of ownership exercised upon and over the disputed territory outside of the enclosure and up to her claimed northern boundary, as run and marked by Blackstock, to have been so numerous and *Page 649 frequent and for so long a period, as to constitute a possession, as defined in the opinion in Staton v. Mullis, ante, 623, it is manifest that such possession to be followed by the legal consequences attributed to it, must not have been interrupted during the prescribed time by the entry of the true owner, as of right, upon the premises, and his exercising similar authority. We have reference to land outside the enclosure, since title to that within seems from the long actual occupation by the defendant and her predecessors in interest, even without any written instrument, to be beyond dispute in the defendant. This does not aid the possession set up to that in controversy, covered by the conflicting claims. If the real owner does enter upon this outside space, the possession at once follows the title, and both title and possession are then in him; so that the continuity of the other possession being broken, when resumed as a new starting point, it must extend over seven years to produce the required result, as if there had been none before. The instruction to the jury was as favorable to the case of the defendant as she could reasonably require; for the entry necessary to interrupt her possession, according to the charge, must have been under a claim of superior title, which admits of an interpretation that more is required than the entry itself and the acts done upon the land, such as an assertion of a right thereto at the time of entering. If this be the meaning, the charge is open to complaint from the plaintiff, for an entry of an owner of land, as of right and not by permission, is itself an assertion of claim and recovery of possession of all that is not in the actual, as distinguished from the constructive, possession of the wrongful occupant.
In the expressive language of the Court, which we have quoted in Gaylordv. Respass, ante, 553, in the opinion delivered in Daniel v. Woodruff, 10 M. W., (Ex.) 631, "when a party having right of entry enters, it is not competent for him to repudiate any rights he may possess, and to say he has entered as a trespasser, or by some other than his real title. As soon as he has entered he is possessed, whether he will or no, by virtue *Page 650 of every title which he had in him and could assert by entry." These remarks, of course, have reference to an entry made in the exercise of aright, which, however misconceived and not within the declared or unexpressed intent, annexes the recovered possession to the title which is in the party. A possession thus acquired by the owner who may enter upon a mistaken and erroneous claim, nevertheless, is supplied by the legal estate, and the owner, in law, retains by virtue of his real, and not misapprehended right. Such re-entry puts an end to the constructive possession, and defeats its operation as a bar thereto. It is enough that the owner goes upon his own land as an assertion of his right as the owner, and it is not necessary to expel the occupant of the portion which is in his actual possession. Howell v. McCracken, 87 N.C. 399.
We must understand there was evidence of interrupting entries made upon the land, to have the effect ascribed to them in the charge, in the absence of any exception based upon the absence of evidence, and especially since the instruction asked was that no such continuous acts of the plaintiff, showing a claim of ownership, had been proved "to break the continuity of the defendant's constructive possession," not that no successive entries by the plaintiff were in proof.
It must be declared there is no error in the record and the judgment must be affirmed.
No error. Affirmed. *Page 651