This is an action of ejectment and has been here before — reported in 126 N.C. 347, as Lewis v. Overby. When here before a new trial was awarded the defendant, which resulted in a *Page 372 judgment for the plaintiff, and the defendant again appealed. The case, by consent, was referred to commissioners, and was tried upon their report and exceptions thereto. When the case was here before a (542) new trial was granted because it was held below that the defendant's possession and that of those under whom he claimed must have been continuous in order to take the title out of the State. After the opinion of this Court was certified to the court below the case was recommitted to the same referees, and they filed another report, which was again excepted to by the defendant. But the court overruled the exceptions, adopted the findings of fact by the referees, and also adopted the rulings of the commissioners upon the questions of law arising upon the facts so found. The exceptions of the defendant to the findings of fact by the referees are, that said findings are contrary to the weight of evidence, or that they are not supported by the evidence. But none of the exceptions are put upon the ground that there was no evidence to support them. And this being so, we have no right to review them, and must take them as found by the referees and the presiding judge. Gudger v. Baird, 66 N.C. 438;Battle v. Mayo, 102 N.C. 413.
In 1795 Gotlieb Shober obtained two grants from the State, one for 1,280 acres and the other for 1,920 acres. These lands he sold to "Tim" Pickering, and afterwards, in 1815, they were sold by Banner, sheriff, for taxes and bought by A. D. Murphy. The deed from Banner, sheriff, to Murphy, contained but one boundary, and included a large quantity of land not included in either of the grants from the State to Shober. The plaintiff contends that the land in controversy had never been granted until December, 1888, when it was granted to him. The commissioners find that the defendant has acquired the title conveyed by Banner, sheriff, to Murphy; that the deed from Banner to Murphy and the mesne conveyances from Murphy to the defendant cover the land in controversy. But the grant for 1,280 acres covers no part of the land in controversy, and the 1,920-acre grant covers only a very small border on one side of the land in controversy. They further find that the (543) defendant and those under whom he claims have had actual possession of the lands included in the 1,280-acre grant for more than twenty-one years. But they have not had actual possession of any part of the land contained in the Banner deed to Murphy, outside of the two grants to Shober, for as much as twenty years, and that the plaintiff's grant of 1888 covers the land in dispute. From these facts they conclude as a matter of law that the plaintiff is entitled to recover.
The defendant contends that there is error in the finding; that the plaintiff and those under whom he claims have not had the actual possession of the land in controversy for more than twenty years, under the rule laid down by this Court; and that this error appears from the *Page 373 finding of fact No. 9, which is as follows: "That the defendants and those under whom they claim have had adverse possession for more than twenty-one years of the lands embraced in the 1,280-acre grant to Gotlieb Shober." And defendant claims that the land in controversy and the 1,280-acre grant to Shober are both within the boundary of the Banner deed and the other deeds of mesne conveyances to him; that the possession of any part of the land included within the boundary of the Banner deed is the possession of the whole. And, therefore, while the commissioners say they find that he has not been in possession of the land in controversy for as much as twenty years, the facts they find show that he and those under whom he claims have been in actual possession for twenty-one years.
In this contention the defendant is in error. If the defendant had had no title, except that derived from the sheriff's deed, his contention would have been correct; but the trouble is he had a good title to that part of the boundary of which he had the actual possession. And the rule is, to ripen a colorable title into a good title, there must be such possession and acts of dominion by the colorable claimant as will make him liable to an action of ejectment. This is said to be the test. (544)Everett v. Newton, 118 N.C. 919; Osborne v. Johnson,65 N.C. 22; Worth v. Simmons, 121 N.C. 357. Suppose the defendant had been sued for the possession of the land in dispute, the action would have failed, as it would have been necessary to show that the defendant was in possession of the land sued for, and this could not be done, as the defendant was in possession of land to which he had a good title. Suppose the complaint had included the whole boundary embraced by the defendant's deeds from Sheriff Banner, and the plaintiff had shown that the defendant was living on the 1,280-acre Shober grant, the action would have again failed, for the reason that the defendant was the rightful owner of this grant and had the right to occupy and use the same. The State is in legal contemplation in possession of all ungranted lands, not in the actual possession of some one.
It is, therefore, seen that the defendant has never been exposed to an action of ejectment, which is laid down as the test. And, singular as it may appear to laymen, it seems that the defendant would have been better off if he had not had a good title to the 1,280 acres and the 1,920 acres granted to Shober, or any of the land he claims, than he is. Or, to express it in other words, he did not become the owner of the land in controversy because he was the owner of the other two tracts.
There is no error and the judgment is
Affirmed.
Cited: Dargan v. R. R., 131 N.C. 634; Williams v. Hyman, 153 N.C. 167;Jeffords v. Waterworks Co., 157 N.C. 13; Elliott v. R. R., 169 N.C. 396. *Page 374
(545)