
    JOHN D. ELLIOTT v. ROANOKE RAILROAD AND LUMBER COMPANY.
    (Filed 22 September, 1915.)
    1. Trespass — Title—Burden of Proof.
    The weakness of the defendant’s title to land will not avail the plaintiff in an action of trespass involving title, for he must recover, if at all, upon the strength of his own title.
    2. Same — State Grants — Deeds and Conveyances — Color—Plaintiff’s Evidence.
    Where the plaintiff’s own evidence, in an action of trespass on lands involving title, tends to show sufficient adverse possession of the defendant under color to take the title out of the State and ripen it in defendant, or in one under whom he claims, and the plaintiff is claiming the locus in quo by grant from the State, issued after the title had ripened, he cannot recover.
    Appeal by plaintiff from Justice, J., at February Term, 1915, of BEAUFORT.
    Civil action for trespass on land.
    
      
      
    
    
      Daniel & Warren and Bryan & Stewart for plaintiff.
    
    
      Small, McLean, Bragaw & Rodman for defendants.
    
   Walker, J.

Plaintiff alleged ownership, under a grant from the State t.o himself, of a tract of land containing 74 acres, more or less, on the north side of Pamlico Eiver and the west side of Bath Creek and designated on the court map by the figures 1, 2, 3, 4, 5, and back to 1, and on which the trespass was alleged to have been committed by cutting timber. Defendant denied plaintiff’s title upon two grounds:

1. That it had acquired title to the land under a deed of Jesse C. Bryan to Thomas D. Beasley, dated 19 March, 1846, and a deed from James E. Shepherd, commissioner to sell the lands of the said Thomas D. Beasley, who had died, dated '2 June, 1882, and adverse possession under these deeds. Plaintiff claimed that the line 2 to 5, as shown on the map, is the western boundary of the deed of Bryan to Beasley, while the defendant contended that its western boundary is the line B, 0, 3.

2. There was a dispute between the parties as to' whether the deed from Bryan to Beasley covered the locus in quo, but the defendant further contended that this was immaterial, as the plaintiff’s own testimony, which defeats his recovery, was as follows: “The Archbell land lies west of the Beasley land. John Archbell and those claiming under him have been in possession of the land adjoining the Beasley land on the west ever since I have known it — fifty years or more. Beasley and those claiming under him had been in possession of the Beasley land as long as I can recollect. John B. Eespass is the only man who has ever shown me the water oak, figuré 5, as the Windley corner. I live in about 2% miles from the land in controversy and make no claim to any part of the land in there except that little piece covered by my entry. The Kug-ler Lumber Company bought the timber on the John Arehbell land, or Stickney land, as it was called. The Archbell house stands within 100 yards of the mouth of Bath Creek. The Beasley land is one of the oldest settlements in that neighborhood. The cleared land on the William J. Archbell land is about a mile from this land.”

There was evidence as to the possession of defendant, and those under whom it claimed, of the land covered by the deeds of James E. Shepherd, commissioner, and Bryan to Beasley; but it is not necessary to set it out, in the view we take of the case. Judgment was entered for defendant, and plaintiff appealed.

It is well settled that plaintiff must recover, if at all, upon the strength of his own title, and not upon the weakness of his adversary’s title. It was said in Wicker v. Jones, 159 N. C., at p. 116: “The paintiff must recover upon the strengeth of his own title, and upon failure of proof by him the jury will find that he is not the owner of the land, although satisfied that the defendant has no title.” This is also true in an action of trespass where plaintiff relies solely upon.bis title and constructive possession, and not upon bis actual possession. Waters v. Lumber Co., 154 N. C., 232. So, in tbis case, as plaintiff by bis own evidence bas shown tbat at tbe time tbe grant issued to bim tbe State bad no title, as it had been lost by adverse possession of Archbell, which was begun and continued for tbe requisite period of time, be failed to show any title to tbe land, and, therefore, no such constructive possession thereof as would entitle bim to sue in trespass. His own testimony proves tbat tbe Beas-leys were in possession of their land for many years' — as long as be could recollect — and John Arebbell and those claiming under bim bad been in possession of tbe land adjoining tbe Beasley land on tbe west ever since he bad known it — fifty years or more. Tbis being so, it can make no difference where tbe western line of tbe Beasley tract is, tbat is, whether it is where tbe plaintiff claims it is, or where tbe defendant claims it to be.

In tbis view of tbe evidence it would be useless to discuss tbe interesting question raised by tbe plaintiff, as to whether tbe possession of tbe defendant, and those under whom it claimed, was extended to tbe boundaries of tbe Shepherd deed, without actual possession of some part of the land embraced by tbat deed, and not covered by tbe deed of Bryan to Beasley, dated 19 March, 1846. Tbe point being tbat as Thomas Beasley bad already acquired title, under tbe Bryan deed as color, by adverse possession, which afterwards passed to defendant, bis possession of tbat tract of land being rightful, would not be extended to tbe outer boundaries of tbe Shepherd deed by construction of law. Tbe gist of tbe contention is tbat it is only where tbe possession bas not ripened tbe color into a good title, and tbe occupant is still exposed to an action of trespass, tbat tbe law will extend tbe possession contructively to tbe boundaries of tbe deed under which, as color of title, tbe possession is held, citing for tbis position Lewis v. Covington, 130 N. C., 544. Nor is it needful to consider tbe status and legal effect of the grant from Rords Proprietors to Seth Sothell, dated 10 November, 1681, for tbe land in controversy. It is quite sufficient, in order to dispose fully of tbis appeal, tbat we confine ourselves to tbe single question as to tbe force and effect of tbe plaintiff’s own testimony upon bis right to recover, remarking generally, and without more particular reference thereto, tbat there are other obstructions in tbe way of plaintiff’s recovery.

There was no error in tbe proceedings above, and it will be so certified.

No error.  