#### DAVID WARD v. V. E. SMITH et al.

(Filed 5 May, 1943.)

1. Adverse Possession § 2—

In actions involving title to real property, where the State is not a party, other than in trials of protested entries laid for the purpose of obtaining grants, the title is conclusively presumed to be out of the State, and neither party is required to show such fact, though either may do so. C. S„ 426.

2. Adverse Possession §§ 13b, 13c

In actions between individual litigants, when one- claims title to land by adverse possession and shows such possession (1) for seven years under color, or (2) for twenty years without color, either showing is sufficient to establish title. O. S., 428 and 430.

3. Appeal and Error § 40e: Trial § 22f—

A motion to nonsuit tests the sufficiency of the evidence to carry the case to the jury and support a recovery. The question thus presented is a question of law and is always to be decided by the court. O. S., 567.

4. Trial § 23—

Equivocations,, discrepancies, and contradictions in plaintiff’s evidence affect its credibility only and do not justify withdrawing the evidence from the jury.

Appeal by defendants from *Carr, J.,*at December Term, 1942, of Columbus.

Civil action for trespass.

Tbe plaintiff alleges that he is the owner and in possession of a 30-acre tract of land in Columbus County, described by metes and bounds in the complaint; that the defendant has trespassed thereon, after being forbidden, and that plaintiff is entitled to injunctive relief and damages for the trespass already committed.

Upon denial of liability and issues joined, the jury returned a verdict in favor of the plaintiff.

From judgment thereon, the defendants appeal, assigning as error the refusal of the court to dismiss the action as in case of nonsuit:

*Varser, McIntyre & Henry for plaintiff, appellee.*

*A. B. Brady and H. L. Lyon for defendants, appellants.*

Stagy, C. J.

The plaintiff claims title to the *locus in quo*by adverse possession for twenty years. It is in evidence that he first entered upon the land in August, 1920; that he occupied it thereafter continuously, under known and visible lines and boundaries, making such use of it *142and taking suck profits eaeb year as it was susceptible and capable of yielding at tbe time. There is no pretense that tbe plaintiff bad any paper title to tbe land. Tbe trespass of wbicb tbe plaintiff complains occurred on 11 December, 1941, when tbe defendants entered upon tbe land and plowed up about three acres of strawberries. This action was. instituted immediately thereafter.

Tbe defendants, on tbe other band, acquired a deed for tbe property in May, 1941, and they show title running back to 26 November, 1920. Tbe defendants also offered evidence tending to show possession and use' of tbe property by their predecessors in title. Tbe cross-examination of tbe plaintiff indicated some equivocation as to tbe character of bis possession and bis claim of ownership. However, tbe conflict in the-evidence has been resolved by tbe jury in favor of tbe plaintiff. It was sufficient to carry tbe case to the jury.

Indeed, tbe case is strikingly like that of *Locklear v. Savage,*159 N. C., 236, 74 S. E., 347. It was tried under tbe law as there laid down, and tbe result must be upheld on authority of that case. It is stipulated in tbe record that tbe court correctly charged tbe jury on all phases of' tbe case in compliance with C. S., 564, and that tbe issues submitted-were not objected to by tbe defendants.

It is tbe bolding with us, and tbe statute, C. S., 426, so provides, that in actions involving title to real property, where tbe State is not a party, other than in trials of protested entries laid for tbe purpose of obtaining-grants, tbe title is conclusively presumed to be out of tbe State, and neither party is required to show such fact, though either may do so. *Dill Corp. v. Downs,*195 N. C., 189, 141 S. E., 570.

In actions between individual litigants, as here, when one claims title-to land by adverse possession and shows such possession (1)- for seven years under color, or (2) for twenty years without color, either showing is sufficient to establish title in this jurisdiction. C. S., 428 and 430; *Power Co. v. Taylor,*191 N. C., 329, 131 S. E., 646; *S. c.,*194 N. C., 231, 139 S. E., 381.

Tbe motion to nonsuit tests tbe sufficiency of tbe evidence, when considered in its most favorable light for tbe plaintiff, to carry tbe case to' tbe jury and to support a recovery. Tbe question thus presented by-demurrer, whether interposed at tbe close of plaintiff’s evidence, or “upon consideration of all tbe evidence,” C. S., 567, is to be decided by tbe court as a matter of law. "Whether tbe evidence is such as to carry tbe ease to tbe jury is always for *the*court to determine. A demurrer-raises only questions of law. *Godwin v. R. R.,*220 N. C., 281, 17 S. E. (2d), 137.

We are not inadvertent to tbe equivocation in tbe plaintiff’s testimony as elicited on cross-examination. This, however, affected bis credibility *143only, and did not justify withdrawing bis evidence from the jury. Such was the holding in *Christman v. Hilliard,*167 N. C., 4, 82 S. E., 949; *Shell v. Boseman,*155 N. C., 90, 71 S. E., 86; *Gunn v. Taxi Co.,*212 N. C., 540, 193 S. E., 747. Discrepancies and contradictions, even in plaintiff’s evidence, are matters for the jury, and not for the court. *Dozier v. Wood,*208 N. C., 414, 181 S. E., 336; *Lincoln v. R. R.,*207 N. c., 787, 178 S. E., 601.

There was no error in overruling the motions to nonsuit. Hence, the validity of the trial must be upheld.

No error.