#### SARAH CLARK SMITH and Husband, LEON SMITH, v. C. L. BENSON and G. W. HESTER.

(Filed 11 December, 1946.)

1. Ejectment § 15—

Where, in an action to recover possession of real property and damages for trespass thereon, defendant denies plaintiff’s title and defendant’s trespass, nothing else appearing, plaintiff has the burden of proving title in himself and trespass by defendant.

3.Ejectment § 10—

In an action involving title to real property, the State not being a party, title is conclusively presumed out of the State without presumption in favor of either party, G. S., 1-36, and plaintiff must rely upon the strength of his own title.

3. Ejectment § 17—

Where, in an action for the recovery of real property in which defendant denies plaintiff’s title, plaintiff seeks to establish title by adverse possession under color, but fails to offer evidence fitting the description, in the deed relied on as color of title to the land in dispute, nonsuit is proper.

4. Adverse Possession § 9c—

A deed is color of title only for the land designated and described therein.

5. Ejectment § 17—

Nonsuit is properly entered in an action involving title to real property upon failure of plaintiff to establish title to the land in question, the action being unlike a processioning proceeding which may not be dismissed as in case of nonsuit.

Appeal by plaintiffs from *Williams, J.,*at April Term, 1946, of BladeN.

Civil action to recover land and for damages for trespass tbereon.

Plaintiff alleges in bis complaint that be is tbe owner in fee simple of a certain tract or parcel of land containing 101 acres, more or less, in "Whites Creek Township, Bladen County, North Carolina, specifically described, including among other calls, this one: “then with the various *57courses of the old survey as described in a deed from John McNorth to Israel Moore, Henry Spaulding and Samuel Blanks, dated February 28, 1893, and duly recorded in Book of Deeds iAA,’ pp. 109, records of Bladen County, reference to which is hereby made, and made a part hereof for a full and accurate description,” and that defendants have trespassed upon said land to the damage of plaintiff in stated amount.

Defendants, answering, deny in the main the allegations, of the complaint, and aver that if the court should find that plaintiffs own the tract of land described in the complaint, and the description therein contained covers any part of the lands of the defendants, therein described and claimed by defendants, then they deny plaintiffs’ ownership of that part thereof. And for a further answer and defense, defendants set up ownership of the lands, to which they assert claim as above stated, by reason of adverse possession particularly under the seven year statute, the twenty year statutes, and the thirty year statute.

Upon the trial plaintiff offered in evidence these exhibits: (1) A deed from A. 0. Trust and wife to A. A. Clark, dated 24 May, 1917, and registered 1 June, 1917, in Book 67 at page 502 of registry of Bladen County, purporting to convey a tract of land of same description as that set forth in the complaint herein.

(2) A deed from A. A. Clark to Sarah Clark, dated 5 March, 1937, and registered 9 March, 1937, in book 96 at page 251 of registry of Bladen County, purporting to convey “a certain tract of land containing 101 acres more or less, and being the same land conveyed by A. 0. Trust to A. A. Clark by deed dated May 24, 1917, and recorded in the office of the Register of Deeds of Bladen County in Deed Book 67, on page 502.”

(3) A survey of the disputed line, made by Bullard and Robbins, surveyors, in August, 1945.

Plaintiff also offered the testimony of A. A. Clark, who testified that he entered into possession of the land he bought from A. O. Trust at the time he bought it, at which time there were no improvements on it; that he has since cleared up probably 10 or 20 acres of the land and built a house and tobacco barn on it; that he has cut and removed timber within the past two years and before that time “wood for tobacco barns and such”; that since conveying the land to his daughter, the plaintiff, Sarah Clark Smith, he has worked the land; had it worked; that he is familiar with the lines and boundaries of the land described in the complaint and has a map of the land made by Mr. Robbins; that C. L. Benson and G-. "W. Hester entered upon the land and cut and removed some timber from the west side; that the deed referred to in the description in the Trust deed, and described in the complaint, containing the call as hereinabove set forth running “thence with the various courses, etc.,” was burned, and the record book was burned; that when Mr. Robbins and Mr. Bullard made the survey he pointed out to them the *58McNortb line and tbe beginning corners; and that “tbe disputed line is known as tbe Sam Blank’s line.”

Plaintiff further offered tbe testimony of A. A. Robbins, surveyor appointed by tbe court, whose testimony tends to show that be did not attempt to run tbe line described in tbe deed “thence with tbe various courses of tbe old survey as described in a deed from John McNortb to Israel Moore, Henry Spaulding and Samuel Blank.”

Defendants, reserving exception to refusal of tbe court to grant their motion for judgment as of nonsuit at close of plaintiff’s evidence, offered evidence in support of their contentions and claims.

And motion of defendants for judgment as of nonsuit at tbe close of all tbe evidence was allowed and judgment signed.

Plaintiffs appeal to Supreme Court and assign error.

*H. H. Clark and Edward B. Clark for plaintiffs, appellants.*

*Robert J. Hester, Jr., and McLean & Stacy for defendants, appellees.*

Winborne, J.

Is there error in tbe judgment as of nonsuit from which this appeal is taken ? This is tbe sole question for consideration,— and tbe answer is No.

Where in an action for tbe recovery of land and for trespass thereon defendant denies plaintiff’s title and defendant’s trespass, nothing else appearing, issues of fact arise both as to title of plaintiff and as to trespass by defendant, — the burden of proof as to each being on plaintiff. *Mortgage Corp. v. Barco,*218 N. C., 154, 10 S. E. (2d), 642.

In such an action plaintiff must rely upon tbe strength of bis own title. This requirement may be met by various methods which are specifically set forth in *Mobley v. Griffin,*104 N. C., 112, 10 S. E., 142; *Prevatt v. Harrelson,*132 N. C., 250, 43 S. E., 800; *Moore v. Miller,*179 N. C., 396, 102 S. E., 627, and many other decisions.

Moreover, in all actions involving title to real property title is conclusively presumed to be out of tbe State unless it be a party to tbe action, G. S., 1-36, but “there is no presumption in favor of one party or tbe other, nor is a litigant seeking to recover land otherwise relieved of tbe burden of showing title in himself.” *Moore v. Miller, supra.*

In tbe light of that presumption plaintiffs in the present action, assuming the burden of proof, elect to show title.in themselves by adverse possession, under known and visible lines and boundaries and under color of title for seven years, G. S., 1-38, which is one of the methods by which title may be shown. In pursuing this method a deed offered as color of title is such only for the land designated and described in it. *Davidson v. Arledge,*88 N. C., 326; *Smith v. Fite,*92 N. C., 319; *Barker v. R. R.,*125 N. C., 596, 34 S. E., 701; *Johnston v. Case,*133 N. C., 491, 42 S. E., 957.

*59In *Smith v. Fite, supra,*tbis beadnote epitomizes tbe opinion of *Smith, C. J.,*for tbe Court: “Where a party introduces a deed in evidence, which be intends to be used as color of title, be must prove that its boundaries cover tbe land in dispute, to give legal efficacy to bis possession.” In other words, tbe plaintiff must not only offer tbe deed upon which be relies, but be must by proof fit tbe description in tbe deed to tbe land in question.

While tbe present action is for tbe recovery of land and for trespass thereon, tbe controversy seems to binge around tbe location of tbe disputed line known as tbe Sam Blank’s line. And as to tbis, tbe testimony of tbe surveyor A. A. Eobbins, appointed by tbe court, tends to show that be did not attempt to run tbe line. Furthermore, there is no evidence in tbe record showing its location.

Tbis case is unlike processioning proceeding wherein when a *bona fide*dispute arises between landowners as to tbe true .location of tbe boundary line between them, tbe case may not be dismissed as in case of nonsuit. *Cornelison v. Hammond,*225 N. C., 535, 35 S. E. (2d), 633.

Tbe judgment below is

Affirmed.