It was held, upon tbe former appeal in this action (166 N. C., 446), that tbe tax deed under which the defendant claims was color of title, and' it was said in tbe opinion: “Tbe tax title being merely color of title, for tbe reason above given tbe burden was on Warren to show that be acquired tbe adverse possession prior to tbe death of Isaiah Eowe. It is true, be testified that be ‘entered into possession of the land,’ but bis evidence is that Isaiah Eowe was then living on tbe land, as be bad been for many years previous, and that be continued there until a very few days of bis death. Warren did not show any act or assertion of adverse possession to Eowe, who remained on the land, and there is no evidence that be paid rent or otherwise acknowledged tbe title and possession of D. C. Warren. There is no act of disseizin shown. From all that appears, both continued to live on tbe land as prior to said sale, without any change in tbe attitude of tbe parties to tbe possession. There is no evidence of tbe exclusive possession of Warren or any acknowledgment on tbe part of Eowe.”
Adhering to this statement of tbe law, it follows that tbe charge of bis Honor is erroneous, if there is evidence in this record that Eowe remained in possession of tbe land by permission of tbe defendant Warren, and acknowledged bis title and possession.
A. H. Pippin, a witness for tbe defendant, testified on tbe second trial: “I live near Core Point. I knew Isaiah Eowe; did not know all of tbe Eowe land in controversy. I know tbe piece of land. I know *526about the fact of its being sold for taxes and Mr. Warren buying it. After he got the deed he cut timber off it and cultivated the land. It was part cleared and part woods. There was a small piece cleared up, about five or six aeres. I had a conversation with Mr. Rowe about it, went to him one time to rent his timber, and he told me he could not rent it, it belonged to Mr. Warren; and I told him it looked like he was living on the place, and I thought it belonged to him, and he told me Mr. Warren had bought it for taxes, and that it belonged to him; and I spoke to him about his living on the place, and he told me Mr. Warren was letting him stay there his lifetime without objection. He lived there in the house until a right short time before his death.”
This evidence was not in the record on the former appeal..
It is true, the witness Pippin does not state the exact time when he had the conversation with Rowe, but his evidence is susceptible of the construction that Rowe acknowledged the title of Warren from the date of the purchase at the tax sale, and the defendant was entitled to have it considered by the jury.
New trial.