
    MIDGETT v. MIDGETT.
    (Filed September 10, 1901.)
    1. PROCESSIONING — Title—Boundaries—Acts 189S, Oh. f&.
    
    Title to land can not be tried under Acts 1893, Ch. 22, it applying only to tbe establishment of boundary lines.
    2. EVIDENCE — Grant—Processioning—Possession—Title.
    In an action to procession land, tbe petitioner not being in possession, he may offer a grant from the state to show title, but title being out of the state at time grant was issued, the grant conveyed no title.
    ActioN by W. W. Midgett against J. D. Midgett, beard by Judge Thos. A. McNeill and a jury, at Fall Term, 1900, of I)ARE County Superior Court. From a judgment for tbe plaintiff, tbe defendant appealed.
    
      W. M. Bond and B. O. Crisp, for tbe plaintiff.
    
      B. F. Aydlett and F. H. Busbee, for tbe defendant.
   Furches, O. J.

Tbis is a proceeding commenced before tbe Clerk of Dare Superior Court, under Chapter 22, Laws 1893. Tbis act seems to have been intended as a substitute for tbe old processioning act, and it bas been so many times beld by tbis Court that it settles nothing as to title, that we are somewhat surprised to see that it should 'have been used in tbis proceeding instead of a civil action. Vandyke v. Farris, 126 N. C., 744; Williams v. Hughes, 124 N. C., 3; Wilson v. Alleghany Co., 124 N. C., 7.

But besides this, it appears to us from tbe case on appeal, tbe map exhibited (which tbe reporter will insert) and the argument of the case, that Chapter 22, Laws of 1893, has nothing to do with it. If tbe plaintiff bas any right under bis grant of 1899, it is in ejectment. There is no- evidence tending to show that the plaintiff was the owner of the land he claimed or that he was in possession, except the grant, of 1899. It was flatly denied by defendant that the plaintiff was the owner, or that he was in possession, and yet the Court refused to submit an issue as to title, or possession, or to charge the jury as to the same; but charged the jury: “That it was purely a question- of fact for them to say where the lines were and after weighing all the evidence, both for the plaintiff and defendant, and giving due weight to the same, it was for them to say how it was and to answer the issues accordingly.” This was, error.

But this appears to us to be a remarkable case. In 1858 Edward Mann made a will in which he devised this land to his four sons, as tenants in common, to- be equally divided among them “share and share alike,” designating the order in which they should take, commencing aft Oaroon’s line. This will was probated in 1861, and the plaintiff is the purchaser from one of the four devisees.

The defendant claims under á deed from Thomas R. Mann, for his interest under the will of Edward Mann, dated in April, 1884. The plaintiff claims the interest of W. K. Mann, under a deed from T. M. Gard, dated April, 1892, stating that it conveys W. K. Mann’s interest, under the will of Edward Mann, and calls for the line of the defendant as one of its boundaries.

After the plaintiff obtained his deed from Gard for W. K. Mann’s interest in the Edward Mann lands, he commenced a proceeding in the Superior Court of Dare County before the Clerk, alleging that he was a tenant in common with the other devisees of Edward Mann, and demanded a partition of the same — the defendant, John D. Midgett, being one of the defendants in that proceeding, 11'7 N. C., 8, and 120 N. C., 4. In that proceeding the defendants admitted that the plaintiff was the owner of W. K. Mann’s interest in the. Edward Mann lands, devised to W. K. Mann, but denied that they were tenants in common with him. And upon the final bearing it was field tfiat the plaintiff was sole seized and that the defendants were not tenants in common with, him, 120 N. C., 4.

The plaintiff then brought an action of trespass, but after-wards withdreAV that action. He then obtains his grant of 1899, and commences this proceeding under Chapter 22 of the Laws of 1893.

We do not see how this proceeding can be sustained. The contention of the plaintiff as shown by the map fails to show a disputed dividing line between the plaintiff and defendants; but only a dispute of title — if it shows anything. This can not be tried under the Act of 1893.

There was no- error in allowing the plaintiff to offer his grant in evidence, but if the title to the land it covered was out of the State at- the time it was issued (as it seems to have been), it conveyed no title, and it was the duty of the Court to so have instructed the jury. We do- not see how the plaintiff can proceed — certainly he can not as the case is now presented to us.

Error.  