
    I. H. WILSON v. JEFF WILSON.
    (Filed 12 December, 1917.)
    1. Costs — Ejectment—Possession—Admissions.
    In a possessory action to recover lands, tbe defendant is not entitled to recover costs when tbe verdict awards tbe lands to tbe defendant .that are claimed by bim and in bis possession; nor is tbe plaintiff in better position with regard to tbe costs where tbe defendant admits that tbe plaintiff is tbe owner of tbe land contained in bis larger boundaries, except tbe locus in quo.
    
    2. Appeal and Error — Judgments—Admissions—Ejectment.
    Where tbe judgment does not accord with tbe admission of tbe parties in an action for tbe possession of land, tbe judgment may be corrected on aiipeal to avoid further litigation, and thus corrected, affirmed.
    
      Appeal by plaintiff from Lane, J., at the November Term, 1916, of. Mitchell.
    This is an action to recover land covered by tbe following plat:
    
      
    
    
      Tlie plaintiff alleges in bis complaint tbat be is tbe owner of tbe land within the boundaries 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 1, and tbat tbe defendant is in tbe unlawful possession of a part thereof beginning near tbe poplar in line 9, containing about one acre.
    Tbe defendant denies tbat tbe plaintiff is tbe owner of tbe land in tbe complaint, and alleges tbat be is tbe owner of tbe part of tbe land be is in possession of. He also alleges in what"is called tbe rejoinder to tbe reply tbat heretofore there was an arbitration between tbe father of the plaintiff and the defendant, in which it was found in tbe award tbat the defendant was tbe owner of one acre of land, and tbat this is tbe acre of land in dispute in this action, being within tbe lines 25, 26, 27, 28, 29 and back to 25.
    At t-lie close of the evidence and as tbe argument was about to begin, the defendant made tbe following admissions in tbe case: “Tbe defendant admits that the plaintiff is tbe owner of all tbe land described in tbe complaint, except that part shown on tbe map S. and S. E. of the. 4-acre tract marked with NNX; and tbe defendant admits tbat if tbe line is established running from tbe water oak, passing 11 to the sourwood and west to the hickory, tbat tbe plaintiff is tbe owner of all tbe land described in tbe complaint.”
    Tbe jury returned the following verdict:
    1. Is tbe line dividing tbe lands between plaintiff and defendant á line running from A B. to a hickory, or a line running from C to tbe hickory? Answer: From 0 to hickory.
    2. Did tbe heirs at law of Isabella Wilson, to-wit, J. C. Sam and W. McWilson, by a prior contemporaneous survey preparatory to executing deeds between themselves and with tbe view thereto run tbe line from tbe ash at 1, to 9, 10, 11 and on to tbe sourwood corner? Answer: No.
    3. Is the plaintiff tbe owner of tbe land laid out on the map, 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12 and back to 1? Answer: No.
    Judgment was rendered declaring tbat defendant was not in possession of any part of the land described in tbe complaint except tbe one acre above described; that tbe plaintiff is not tbe owner of said one acre, and tbat be take nothing by bis action, and tbat tbe defendant recover of tbe plaintiff and bis surety bis costs.
    Tbe plaintiff excepted to tbe judgment for costs, and appealed.
    
      S. J. Ervin, Oharles E. Oreen, and Iludgins <& Watson for plaintiff.
    
    
      Black & Wil'son and Pless & Winborne for defendant.
    
   Allen, J.

Tbe plaintiff cannot invoke tbe principle tbat when there is no disclaimer, and tbe plaintiff recovers a part of tbe land in controversy, be is entitled to recover costs, because be has recovered nothing.

Under the first issue, which establishes the line between the plaintiff and defendant “from C to hickory” the defendant would be entitled to more land than he is claiming, and under the third issue it is found that the plaintiff is not the owner of the land described in the complaint. The plaintiff cannot, therefore, claim anything under the issues, and in the judgment “it is adjudged that the plaintiff takes nothing by this action.”

Nor is the plaintiff in any better position as to costs on account of the admission made by the defendant at the trial that the plaintiff is the owner of all the land described in the complaint, except the one acre,for the reason that the defendant has not been in possession of any other land, and when the action is possessory, and not to remove a cloud from title, it is only when the plaintiff recovers a part of the land in possession of the defendant that he can recover costs.

The action cannot be maintained except against one in possession (Doggett v. Hardin, 132 N. C., 690), and it was said in Hipp v. Forester, 52 N. C., 599: “It has been suggested that,, as the declaration included the whole tract granted to Franks, and as the defendant did not disclaim for the part of which he was not in possession, the lessor was entitled, at least, to a verdict for that part. That proposition cannot be sustained, because, as to such part, ho was already in possession, and could not, therefore, maintain ejectment against another person for it.”

This was under the old system, it is true, but it is affirmed and recognized as still existing under the Code in Cowles v. Ferguson, 90 N. C., 313.

In Atwell v. McLure, 49 N. C., 371, Pearson, J., in the opinion, for the purpose of illustration, puts this case: “Suppose the declaration is for a tract of land, setting out the metes and boundaries; the party upon whom the declaration is served makes himself defendant; on the trial it turns out that the defendant has title to so much of this tract as he is in possession of; the plaintiff has title to the remainder, but the defendant never was in possession of that part. The defendant is entitled to judgment because the plaintiff has failed to prove that he (the defendant) was in possession of any land to which the plaintiff had title.”

The admission, therefore, while sufficient as a basis for an adjudication of title does not entitle the plaintiff to recover anything of the defendant because the defendant was not in possession of any part of the land, the title to which was admitted to be in the plaintiff, and if so, he cannot recover costs.

The pleadings as well as. the admissions of the parties show clearly that the only matter in dispute is as to the ownership of the one acre, and that the defendant has no possession outside of the acre, and as the plaintiff lias lost upon the controverted question, he ought to pay the costs.

It appears, however, on the face of the record, that the judgment is not in accordance with the admissions of the parties, and to the end that further litigation may be averted it is ordered that it be modified by adjudging that the plaintiff is the owner of the land within the boundaries, 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12 and back to 1, except that part within the boundaries 25, 26, 27, 28, 29 and back to 25 and that defendant is the owner of the exception and as thus modified that it be affirmed.

Modified and affirmed.  