
    JOSEPH Y. BRYSON vs. CHARLES SLAGLE, et al.
    
    If two grants lap, and while neither grantee is settled upon the lapped part, the junior enter upon the lappage and clear, enclose and cultivate a field upon it for seven years, he will acquire a title to it. But if, at the time he encloses his field, it he with the permission of the elder grantee, upon his agreeing to set his fence hack whenever it appears hy a survey that it is over the line of the older grant, his possession of the field will not prevent the elder grantee, or one claiming under him, from having his lines run according to the calls of his grant.
    An agreement made hy a junior grantee, in relation to his possession of a part of his land covered hy an older grant, with the widow of the elder grantee who continued in possession after the death of her husband, is evidence that she had an interest in the land, and had, therefore, the right to make the agreement: and at all events, the junior grantee, and those claiming under him, are estopped from calling that matter in question.
    This was a proceeding by the plaintiff to have his land processioned according to the provisions of the 91st ch. of the Revised Statutes, as follows: — At March Term, 1849, of the County Court of Uenderson, George Orr, the processioner of that county, made a report, wherein he stated, that at the instance of the plaintiff he proceeded, on the 13th day of January, to procession the lands of the plaintiff, (it appearing that due notice had been given to the adjoining proprietors) as follows, to wit: Beginning at a post oak on the side of a hill on the west side of French Broad river, as called for in the grant bearing date the 6th day of December, 1799, No. 740, and granted to James Bryson <fc John Davis, and runs west eighty poles to a stake, (the old corner black oak not found,) thence north thirty poles to a stake, thence west one hundred and forty poles to a stake, thence south, intending to run to a white oak as called for in the grant, and claimed by said plaintiff as being the corner, one hundred aud thirty-six poles. At the point D. Charles Slagle, the guardian of the minor heirs of Isaac Ledbetter, deceased, forbade him to proceed further in running and marking the said line, claiming under a grant from the State to Samuel King, bearing date the 17th December, 1799, and by possession with known boundaries under said title, of the part marked A.-, and by actual possession under the same title of the part marked B., all which is shown in the annexed plat, whereupon he desisted. The report further’ set forth that the plaintiff claimed title under the grant above mentioned to James Bryson & John Davis, a conveyance from said Bryson & Davis to William Bryson, sen., and under the will of the said William Bryson, and regular conveyances from his devi-sees, and under known and visible boundaries from the date of the grant, to the part designated by the letter A.; and to the part designated by the letter B. by virtue of an agreement with Isaac Ledbetter, the ancestor of the infant defendants, that if the fence was not on the line, it should be removed at any time to the proper place. Annexed to the report as a part thereof, was the following plat:
    
      
    
    
      This report was confirmed by the Court, and thereupon five persons were appointed commissioners to settle the said disputed line or lines, who, together with the said processioner, made their reports to the Court at tire following June Term, in which they set forth in full what they had done, of which it is only necessary to state that they decided that the plaintiff was entitled to have his south line run to the white oak and his other lines so run as to include the part marked A., but to exclude the part marked B., which wag within the enclosed field of the defendants. The testimony of one witness only was set out in the report, which was, that at the time Ledbetter enclosed the field, it was agreed be tween him and Elizabeth Bryson (who was the widow of William Bryson, and who continued in possession of the land until her death,) that he might put his fence there, doth the undestand-ing that whenever it appeared by a survey that the fence was over the Bryson line, he would set it back. To these reports the defendants excepted ; first, because they were not sufficiently certain and specific ; secondly, because the commissioners rejected and refused to hear and consider competent evidence material for the defendants to establish their title to the locus in quo ; thirdly, because they disregarded a continued adverse possession of more than seven years of the locus in quo by the defendants, under color of title, and under known and visible boundaries.
    The exceptions were all overruled, and a judgment given for the plaintiff, from which the defendants appealed to the Superior Court, in which, at Spring Term, 1852, before his Honor Judge Manly, the judgment of the County Court was affirmed, and the defendants appealed to the Supreme Court.
    ' J. Baxter, for the defendants.
    
      N. W. Wood/in, for the plaintiff.
   Peaeson, J.

Had the defendants a right to stop the plaintiff,when, in running the South line, they came to the line of the grant under which the defendants claimed ? Or had the plaintiff a right to cross that line and go on to the white oak, which was a comer of the grant under which he claimed? The plaintiff’s grant is dated on the 6th, and the defendants’ on the 17th December, 1799. The grants lap. The defendants insist that their title to the lappage has ripened and become the better title, by reason of an adverse possession for more than seven years; and they prove that their ancestor, Isaac Ledbetter, enclosed a field within the lappage, and cultivated it for more than seven years, and insist that the possession of this part gave possession of the whole, inasmuch as the plaintiff had no possession within the lappage.

The position of the defendants is sustained by a well settled rule of law, and the only question is, does the proof offered by the plaintiff prevent the application of this rule, by showing that Ledbetter had no possession outside of his fence, or that his possession was not adverse? A witness called by the plaintiff testified that at the time Ledbetter enclosed the field, it was agreed between him and Elizabeth Bryson, the widow of William Bry-son, under whom the plaintiff claims, that he might put his fence there, with the understanding that whenever it appeared by a survey that the fence was over the Bryson line, he would set it back.

The field enclosed by the fence was in the south-east part of ■the Bryson grant; the white oak is the southwest corner. So, admitting that the defendants had acquired the title by adverse possession under color, of the land enclosed by the fence, it remains a question whether they had acquired title to all the lands within the lappage, outside of the fence. The commissioners were of opinion that the defendants had acquired title to the land enclosed by the fence, and after going to the white oalc, ran the plaintiff’s line so as to exclude the field. With this decision the defendants have no right to complain ; for it might have been urged with much force on the part of the plaintiff, that the possession of the field was not adverse, by reason of the agreement in regard to the location of the fence, which screened the ancestor of the defendants from any liability to an action, either of trespass or ejectment, until the Bryson line was ascertained by a survey, and put him on the footing of one who enters and holds by the consent of the owner, and is termed a tenant at will, as distinguished from a trespasser, not liable to an action until the relation is put an end to, and consequently not at liberty to set up his possession as adverse. It would be monstrous if one who enters by my consent could, after being permitted to continue in possession more than seven years, turn upon me, and say I have now the better title by reason of my possession, and will disregard the agreement under which you permitted me to take possession. ’ ’

As the commissioners have allowed the defendants the benefit of the possession, so as to give them the field, and the plaintiff does not complain, yet we will not put our decision upon that point, because obviously, the plaintiff had a right to run to the white oak, either upon the ground that the possession of the field was not adverse by reason of the agreement, or upon the ground that by the terms of the agreement, Ledbetter, the ancestor of the defendants, disclaimed all right to any land outside of his fence, the legal effect of the agreement being, Ledbetter sets up no claim outside of his fence, but thinks that he has a right to put the fence at a certain place ; to which Elizabeth Bryson consents, with the express understanding that Ledbetter would set back his fence, whenever it appears by a survey that it is over the line of the Bryson grant.

We are of opinion with the Judge below, that supposing the defendants to have acquired title to the land enclosed by the fence, the agreement certainly rebutted the idea of any possession by construction outside of the fence. Consequently the plaintiff had a right to cross the line of the defendants’ grant, and go to the white oak, and the defendants had no right to stop the proces-sioner at the line of their grant — which is the matter in controversy :—

Our difficulty in coming to a conclusion, grew out of the fact that it did not appear affirmatively that Elizabeth Bryson, who made the agreement in reference to the fence, had an estate in the land, by which she was authorised to make the agreement. She was the widow of William Bryson who was the owner of the land, and she continued to live upon it for many years'after his death, and up to the time of her own death. This, we think, is affirmative evidence of the fact that she had a life estate, either under her husband’s will or as dower. But we are of opinion that Ledbetter, the defendants’ ancestor, having made the agreement with her as the owner of the estate, or at ail events as one having a right to act for the owner, those claiming under Ledbetter are estopped, and cannot even call that matter in question.

The exception that, the commissioners rejected competent evidence offered by the defendants is not presented, because it is not stated what ihe evidence was. So, this Court has no means of deciding upon its competency or materiality. The judgment below is affirmed.

Pee. Cueiam. Judgment affirmed.  