
    W. T. WEAVER et al. v. I. R. LOVE et al.
    (Filed 14 December, 1907).
    1. State's Lands — Junior Grant — Color of Title — Revisal, sec. 1699.
    Revisal, sec. 1699, providing that a junior grant shall not be color of title, so far as it covers land previously granted, applies by express terms only to grants issued since 6 March, 1803.
    2. Same — Protestant—Plaintiff—-Burden of Proof.
    The burden of proof is upon the plaintiff:, to attack the defendant’s grant to vacant and unappropriated State’s lands for any cause not appearing upon its face.
    3. Same — Evidence—Nonresident.
    Evidence that the defendant now lives in Tennessee is not evidence that, at the time of the issuance of his grant to the State’s vacant and unappropriated lands, lie was a “nonresident,” so that the court could thereunder so charge the jury.
    4. Same — Grantees, Tenants in Common — Nonresident—Resident— Possession.
    Where there- are two grantees of the State’s vacant and unappropriated land, they are tenants in common, and both hold possession by those in possession of the land put there by one of them, whether the tenant in common be a resident or nonresident of the State.
    5. Same — Evidence—Nonresident—Possession—Color of Title — Instructions.
    When it appears that defendant’s grant, under which he claims by adverse possession, was issued 3 February, 1891, that he now lives in Tennessee and comes here and stays on the land several months at the time, and gets timber; that he has built houses thereon, kept them continuously rented for the past ten or fifteen years, and has used the land as his own for the purposes it was good for, it is proper for the court below to refuse to instruct the jury that, according to the undisputed evidence, the defendant has been a resident of the State of Tennessee ever since his grant issued, and that the seven-year statute of limitations has not run in his favor against the plaintiff claiming under a senior grant.
    Walker and ComsroR, JJ., dissenting.
    Civil actioN, tried before Guión, J., and a jury, at June Term, 1907, of tbe Superior Court of YaNcey County.
    Judgment for defendants. Plaintiffs appealed.
    Tbe facts sufficiently appear in tbe opinion.
    
      H. B. Garter and W. JR. Whitson for plaintiffs.
    
      Adams & Adams, E. F. Watson and G. E. Gardner for defendants.
   Clark, O. J.

Action to remove cloud on title and for damages for trespass in cutting timber,, and asking an injunction. Tbe defendants plead seizin and title in themselves. The plaintiffs claim under a grant issued in 1796 and a chain of title from that source. The defendants, J. W. ITiggins and I. R. Love, claim under a grant to themselves, 3 February, 1891, and continuous adverse possession thereunder for seven years, by building bouses tbereon and cutting timber, and also by tenants occupying tbe bouses and cultivating land.

Tbe court instructed tbe jury, at plaintiffs’ request, that the cutting of timber from time to time would not constitute possession to ripen title, and that tbe statute would not bar minors and those under tbe disability of coverture. This action was begun 5 January, 1906 — less than seven years after tbe repeal or tbe suspension of tbe statute as to married women (chapter 18, Laws of 1899). Besides, tbe defendants are not appealing.

Tbe court properly refused tbe plaintiffs’ prayer, “that, according to tbe undisputed evidence, * * * tbe defendant Love has been a resident of tbe State of Tennessee (ever since the grant issued to defendants), and, therefore, tbe statute of limitations has never run against tbe plaintiffs in favor of tbe defendant Love, and be is not tbe owner of any land mentioned in tbe answer.” Tbe burden was qn tbe plaintiffs, to attach tbe grant for anything not appearing upon its face. Dosh v. Lumber Co., 128 N. C., 87. Tbe only evidence of Love’s nonresidence is bis own evidence that be lives now in Tennessee, and that, when be came over to cut, be has stayed on the land several months at a time and gotten timber. He testifies to having bouses built and bis keeping them continuously rented, and says that for tbe past ten, twelve or fifteen years be has used tbe land as bis own, and for tbe only purpose it is good for; that be has bad tenants on tbe land continuously for ten years, etc. There is no “undisputed evidence” that Love was a “nonresident” at tbe time when tbe grant issued in 1891, and tbe court could not so charge. Besides, there is no evidence whatever that Higgins is a nonresident, and tbe possession of one tenant in common is tbe possession of both. Tenants put there by Love held possession equally for Higgins. [Furthermore, tbe evidence, if believed, is that from 1891 there has been an unbroken succession of tenants living on tbe land. Tbe plaintiffs could have taken action, to turn these out, whether Love was a resident or not, and his claim of adverse possession could not have ripened into title. The grant of 1891, if covered by the grant of 1796, conveyed no titje, but it was color of title, and, the title being out of the State by plaintiffs’ grant (Gilchrist v. Middleton, 107 N. c., 679), the seven years’ notorious, open and adverse possession by the defendants ripened their color of title, except as to those of plaintiffs protected By coverture or infancy. Asbury v. Fair, 111 N. C., 251.

The defendants cannot be deprived of the protection of adverse possession and statute of limitation by the plaintiffs simply styling the proceeding an action to remove a cloud on title.

Eevisal, sec. 1699, providing that a junior grant shall not be color of title so far as it covers land previously granted, applies, by the terms of that section, only to grants issued since 6 March, 1893. The defendants’ grant was issued 3 February, 1891.

No Error.

Walker, J.,

dissenting: I am of the opinion that, upon the facts of this case, as I understand them, it being an action to remove a cloud from the title, the plaintiffs’ cause of action is not defeated by the statute of limitations or by any adverse possession sufficient to bar their right of entry. '

Justice CoNNOR concurs in this dissent.  