
    DAVID F. EDDLEMAN v. ANDREW CARPENTER.
    Where A conveyed to B a parcel of land, to which he had no title, but after-wards obtained a deed in fee for the same, and took actual possession of it which he held adversely to all the world for seven years, it was Held that the right which B had by estoppel to enter, was tolled by this long- possession of it under color of title.
    This was an action of trespass, Q. C. F., tried before Manly, J., at the Fall Term, 1858, of Gaston Superior Court.
    Peter Eddleman was the owner of a parcel of land on the west side of Leeper’s creek, (see diagram) which he, in 1832, conveyed to Jacob Forney, and he, in 1835, to the defendant, Carpenter. These conveyances described the boundaries of the land as beginning at a point on the creek, marked A, then running around and back .to the creek at T, “thence to the beginning.” At the time of these conveyances, in 1832, and 1835, Peter Eddleman was not the owner of any portion of the land on the east side of Leeper’s creek, but in 1838, he acquired from one Abernathy a title to the whole of that represented by the figure A, K, L, I, G.
    
      
    
    It was proved that after the titles to Forney and Carpenter, in 1832 and 1835, they respectively claimed and used the land only on the west side of the creek, and that Peter Eddleman and the plaintiff, who claimed under him, as heir-at-law, had claimed and used the land on the east side of Leeper’s creek, from the date of the deed in 1838, until 1856, when Carpenter entered and cut a ditch from A to L, for which this suit is brought. It was proved further, on the part of the plaintiff, that Peter Eddleman had actually cleared the area, A, K, L, and be and the plaintiff, claiming under him, had cultivated it, and held it adversely to all others, for more than seven years, consecutively, before the entry of Carpenter in 1856. . The defendant contended that the conveyances of 1832 and 1835, embrace all the lands on the west side of a straight line from A to T, and although, at the time, no title passed to any land on the east side of the creek, because the vendor had no title to convey, yet, upon the acquisition of title, in 1838, it inured to the defendant’s benefit as to all that part between the creek and the straight line A, T, and that Peter Eddleman, could not afterwards, by adverse possession, under said deed of 1838, obtain a title to the disputed portion.
    The Court concurred with the defendant in his view of the construction of the conveyances of 1832 and 1835; and, furthermore, was of opinion with him, that the title to the disputed land, was in the defendant by estoppel, against Peter Eddleman and his heirs, after he acquired title in 1838.
    But, his Honor was further of opinion, that if Peter Eddleman had occupied the disputed part for more than seven years, continuously, cultivating the same under a claim of right to the whole of the land on the east side, through his deed of 1838, he acquired a right by possession. Instructions to this effect were delivered to the jury, and the defendant excepted.
    Yerdict for the plaintiff. Judgment and appeal by the defendant.
    
      Boydm and Bynum, for the plaintiff.
    
      Lander and Amry, for the defendant.
   PeaesoN, C. J.

Ye concur with his Honor on both points presented:

1st. There is nothing to control the call of the deed executed by Peter Eddleman to Forney in 1832, and by Forney to Carpenter in 1835, that is, “ to a stake on the bank of the creek,” “thence to the beginning,” which is a strcdght \m&, and includes the locus vn quo, and does not run with the meanders of tbe creek; consequently, those deeds, (although such may not have been the intention of the parties,) included the bend of the creek, and made an estoppel in respect to Peter Eddleman, although in 1832, he did not own the land. Afterwards, in 1838, when he acquired title by the deed of Abernathy to him, the “ estoppel was fed,” so ashy the aet of law to vest the title in Carpenter, in the same manner as if Eddleman had owned the land in 1832.

2ndly. But there is no principle of law which prevented him from afterwards divesting the title of Carpenter, thus perfected by estoppel, in the same way that any third person could have divested it, and acquired the title, that is, by a disseisin, and twenty years adverse possession, during all which time he tvas exposed to the action of Carpenter; or, by a color of title, and seven years adverse possession, during which time he was in like manner exposed to the action of Carpenter; which, under our statute, would toll the right of entry, and ripen his color of title into a good title ; for, although he and all those claiming under him, were estopped in respect to Eorney, and all claiming under him from denying, that in 1832, he owned the land in the bend of the creek, and then passed the title to Eorney, yet, he might well be heard to say “Iadmit that I passed the land to you by my deed in 1832, but I have since acquired a new title by means of a color of title a/nd seven years adverse possession, and, although by act of law, the title which I acquired from Abernathy, in 1838, inured to your benefit, and went to feed the estoppel, still his deed to me was color of title, and my adverse possession of the land under it for more than seven years, divested your title, and gave me a new and distinct title which, then, had no existence, and which, of course, I did not profess to pass to you by my deed of 1832. So, your fight of entry has been tolled, and your title lost by matter ex post faetoP

This conclusion is fully sustained by the cases of Johnsons. RairlotolS Ired. 84; Reynolds v. Cathey, 5 Jones 437.— There is no error.

PeR CueiaM,

Judgment affirmed.  