
    JAMES B. WEBB and WILLIAM H. PENNY v. MOURNING BATTLE.
    (Filed 17 February, 1926.)
    1. Deeds and Conveyances — Inconsistent or Vague Descriptions in Part— Reference to Former Deeds — Intent.
    Where in an action to recover lands the right of a party depends upon a deed in his chain of title wherein a vague boundary given does not include the locus in quo, but in this deed reference is made to a description in a former deed in his chain of title, which does definitely include the locus in qm, the deed with these seeming contradictions will be interpreted to ascertain the intent of the parties, and effect will be given to the reference to the former deed, in determining the question of adverse possession under seven years color from a common source.
    3. Same — Evidence—Location of Locus in Quo — Questions for Jury*
    Where a definite call in a deed renders certain another and vague call therein, it is for the jury to determine whether the locus in quo, under the evidence, falls within the lands described in the conveyance.
    3. Same — Lappage—Adverse Possession — Limitation of Actions — Superior Title — Burden of Proof.
    Where the locus in quo is contained in a lappage in the description of the deeds of rival claimants, and one of them claims title by adverse possession under color, and the other shows a superior claim under his chain of title from a common source, the possession of the former is deemed to be under the title of the latter, and the burden is upon him to show title by adverse possession as claimed by him.
    Appeal by plaintiff from Crammer, J., at October Term, 1925, of Nash.
    Tbe complaint consists of tbe usual allegations in an action to recover land. Tbe answer joins issue and sets up tbe defense of possession for thirty years under known and visible lines and boundaries and for twenty-one years and for seven years under color of title. Verdict:
    1. Are tbe plaintiffs tbe owners of and entitled to tbe possession of tbe land described in tbe complaint? Answer: No.
    2. Does tbe defendant unlawfully withhold possession of said land? Answer:.
    Judgment for tbe defendant; appeal by plaintiffs upon errors assigned.
    
      Battle & Winslow for appellants.
    
   Adams, J.

Tbe plaintiffs brought this suit to recover tbe tract represented on tbe plat by tbe letters ABXA. Tbe defendant claims to be tbe owner of tbe lot designated by tbe letters YBAXY; but tbe plaintiffs say that her boundaries are limited by YBXY. On tbe trial tbe plaintiffs offered record evidence tending to show that in 1855 'W'illiam S. Battle was the owner of a large tract of land including the locus in quo; that in 1865 he divided the tract into two parcels, conveying one part to T. H. Griffin and the other to Willie B. Ricks; that by mesne conveyance the plaintiffs acquired title under Griffin to ABXA and the defendant under Ricks to YBXY. After putting in evidence their own chain of title the plaintiffs, for the purpose of showing a common source,

introduced tbe deeds under wbicb tbe defendant claims. Tbe description in tbe defendant’s deed is as follows: “Adjoining tbe land of Will Harris and Jones Smith and others, bounded as follows: Being in tbe section of Rocky Mount, known as Little Raleigh, and beginning at a stake in tbe southern line of Grace Street, Jones Smith corner; thence in a northern direction with tbe western line of Grace Street, 64 feet to a stake, Will Harris corner; thence along Will Harris line 185 feet, more or less, to Garvey and Jones Smith corner; thence with Jones Smith’s northern line 120 feet, more or less, to the beginning, and being all of the land formerly owned by Calvin Battle, between the northern line of Jones Smith and the southern line of Will Harris, see deed from Jones Smith and wife to John Battle, Book 154, page 228, Nash Oonnty Registry.”

The defendant contends that this description embraces YBAXT and takes in the disputed land; that the deeds under which she claims are color of title; that she and her predecessors held possession under known and visible lines and boundaries and under colorable title for seven years before the institution of the action; and that the plaintiffs are thereby barred. C. S., 428. On the other hand the plaintiffs say that the defendant’s deed does not include ABXA and that the defendant could not have had color of title to this lot. These inconsistent positions require 'an interpretation of the defendant’s deed. In Quelch v. Futch, 172 N. C., 316, it is said: “We have in the deed in question a-description by metes and bounds in which the land in controversy is not conveyed, and also a description which refers to another deed duly recorded by book and page, which gives á definite description covering the land in controversy. It must be admitted that if the first or specific description entirely is eliminated from the deed, according to the evidence, the second or general description is sufficient, and covers the land described in the complaint. It matters not that the last description follows the warranty. The whole deed must be so construed as to give effect to the jffain intent of the grantor, and the parts of the deed will be transposed if necessary. Triplett v. Williams, 149 N. C., 394; 13 Cyc. 627. The entire description in a deed should be considered in determining the identity of the land conveyed. Clauses inserted in a deed should be regarded as inserted for a purpose, and should be given a meaning'that would aid the description. Every part of- a deed ought, if possible, to take effect, and every, word to operate. A reference to another deed may control a particular 'description, for the deed referred to for purposes of description becomes a part of the deed that calls for it. 13 Cyc., 632; Brown v. Richard, 107 N. C., 639; Everitt v. Thomas, 23 N. C., 252.” In the defendant’s deed the description by metes and bounds is followed by the phrase, — “being all the land formerly owned by Calvin Battle, between the northern line of Jones Smith and the southern line of Will Harris.” If as contended by the plaintiffs, Calvin Battle, before executing his deed to Jones Smith (4 August, 1906), conveyed all the land devised to him by his father except YBXY and the northern boundary of the Calvin Battle line is XB, the words “between the northern line of Jones Smith and the southern line of Will Harris” apparently would include no land north of XB. If this be admitted or established, the next question will be whether the remaining description extends the defendant’s northern line to AB. It will be observed tbat two “calls” in tbe deed are inconsistent: —“thence along Will Harris line” and “to Garvey and Jones Smith corner.” A line from B along tbe Harris line will not reach tbe Garvey and Jones Smith corner; a line from B to this corner will not run with tbe Harris line. If tbe boundaries in tbe defendant’s deed by their terms exclude tbe locus in quo tbe mistaken call for tbe Harris line would not extend them. Ferguson v. Fibre Co. 182 N. C., 731. Tbe plaintiffs insist tbat tbe defendant’s lot is enclosed by three lines and is therefore triangular. As to tbe line YB there is no controversy; tbe next extends from B to tbe Garvey-Smith corner; and tbe third is between this corner and tbe beginning. Tbe defendant’s contention tbat tbe line should be run from B to A and thence to X would convert tbe triangle into a quadrilateral and would disregard tbe Garvey-Smith corner as tbe terminus of tbe second line. Tbe more reasonable and tbe only consistent interpretation leads to tbe conclusion tbat tbe mistaken call, “along Will Harris line,” cannot control tbe more definite description in tbe deed. Tbe principle is thus stated by Chief Justice Ruffin in Proctor v. Pool, 15 N. C., 370; “It is a general rule tbat if tbe description be so vague or contradictory tbat it cannot be told what thing in particular is meant, tbe deed is void. But it is also a general rule tbat tbe deed shall be supported, if possible; and if by any means different descriptions can be reconciled, they shall be; or if they be irreconcilable, yet if one of them sufficiently points out tbe thing, so as to render it certain tbat it was tbe one intended, a false or mistaken reference to another particular shall not overrule tbat which is already rendered certain.” Tbe same writer reannounces tbe principle in Mayo v. Blount, 23 N. C., 283: “It is admitted to be a sound rule of construction tbat a perfect description, which fully ascertains tbe corpus, is not to be defeated by tbe addition of a further and false description.” See, also, Shaffer v. Hahn, 111 N. C., 1; Peebles v. Graham, 128 N. C., 222; Harper v. Anderson, 130 N. C., 538, 540; S. c., 132 N. C., 89; Hurley v. Ray, 160 N. C., 376, 379; Williams v. Bailey, 178 N. C., 630; Dill v. Lumber Co., 183 N. C., 660; Quelch v. Futch, supra.

If it is shown tbat tbe northern boundary of tbe Calvin Battle land was XB at tbe date of bis conveyance to Jones Smith, it will follow as an inference of law tbat the defendant’s lot is bounded by tbe three designated lines, tbat is (1) tbe line extending from tbe beginning corner in tbe southern line of Grace Street with tbe western line of tbe street to Will Harris’ corner; (2) tbe line running thence to tbe Garvey-Smith corner; and (3) tbe line running thence to tbe beginning — the location of course to be determined by tbe jury.

As to tbe title and tbe burden of proof tbe jury were instructed as follows: “Tbe burden is upon them (tbe plaintiffs) to show tbat they have been in possession of the land inside of the seven years, within the seven years, or that their deeds cover the land and that the defendant has not been in possession of the land within the seven years. To make it plain to you, the defendant pleads the statute of limitation and therefore the burden is upon the plaintiffs and not upon the defendant to satisfy you that they have the title to the land.”

This instruction was erroneous. “It is settled that where the title deeds of two rival claimants to land lap upon each other, and neither is in the actual possession of any of the land covered by both deeds, the law adjudges the possession of the lappage to be in him who has the better title. If one be seated on the lappage and the other not, the possession of the whole interference is in the former. Green v. Harman, 15 N. C., 158; Williams v. Miller, 29 N. C., 186; Scott v. Elkins, 83 N. C., 424; Dobbins v. Stephens, 18 N. C., 5; Smith v. Ingram, 29 N. C., 175; Kitchen v. Wilson, 80 N. C., 191. But if both have actual possession of the lappage, the possession of the true owner, by virtue of his older title, extends to all not actually occupied by the other.” McLean v. Smith, 106 N. C., 172.

The plaintiffs offered evidence tending to show a common source of title (if the defendant’s deed should include the locus in quo) and that their claim was superior to that of the defendant. Under these circumstances it was incumbent upon the defendant to show by the preponderance of the evidence that she and those under whom she claims had held adverse possession for seven years under color of title. In Land Co. v. Floyd, 171 N. C., 543, the Court said: “The statute, Revisal, sec. 386, (C. S., 432), places the burden upon the defendant to show his color and adverse possession, for otherwise his occupation shall be deemed to have been under and in subordination to the legal title.” Vanderbilt v. Chapman, 175 N. C., 11; Shermer v. Dobbins, 176 N. C., 547.

New trial.  