Alexander v. Richmond Cedar Works, 177 N.C. 137 (1919)

Feb. 19, 1919 · Supreme Court of North Carolina
177 N.C. 137


(Filed 19 February, 1919.)

1. Deeds and Conveyances — Tenants in Common — Limitation of Actions— Judicial Sales — Adverse Possession — Color of Title.

Tbe construction placed upon tbe deed of a tenant in common wbo attempts to convey .tbe entirety, that bis grantor takes only tbe interest of tbe grantor in tbe lands, and that tbe conveyance is not color of title to tbe whole tract, has not application to a deed executed under judicial proceedings which purports to sell and convey tbe entirety, and where some of tbe tenants in common bad been made parties to tbe proceedings under which tbe court ordered tbe sale; and sufficient adverse possession thereunder for seven years' or more will ripen tbe title in tbe grantee.

2. Same — Rules of Property.

Tbe rule in this State that a deed to lands held in common, made under a judicial sale, wherein some of the tenants in common have been made *138parties, will constitute color of title to the entire tract, is one of property concerning which our courts will not follow the contrary doctrine elsewhere prevailing.

3. Limitations of Actions — Adverse Possession — Title.

It is not required that adverse possession, to ripen the title to lands under “color,” should have existed during the period next preceding the commencement of the suit if such title had thereby at any time prior thereto, and this title will support a recovery unless subsequent to its vesting it had in some way been divested; nor is it necessary that such possession should have been unceasing if it is sufficient to warrant the inference that the actual use and occupation have extended over the statutory period.

4. Same — Character of Possession — Color of Title.

The character of adverse possession required to ripen title to lands under “color” of a paper-writing sufficiently describing them is the notorious, continuous and exclusive use thereof,' for the statutory period, that the land is susceptible of in its present condition; and in instances of swamp lands, which could only be used for the purpose of cutting and removing trees therefrom, the cutting and removing of the.trees with such frequency and regularity for the required period, as to give notice to the xrablic owner of the paper title, that the claimant was claiming the land as his own, and to expose him to suits by the true owner is sufficient.

5. Evidence — Judgment Roll — Deeds and Conveyances — Tenants in Common —Judicial Sales — Color of Title.

Where a deed to lands held in common, made under a judicial sale, is relied upon as color of title the judgment roll in the proceedings, disclosing of record that the petition had been filed, sale ordered and confirmed, directing the deed to be made, is sufficient evidence thereof, though some of the essentials must be inferred from the actual existence of the others, as shown in the roll and substantiated by the documents themselves and entries on the minutes of the court.

6. Evidence — Adverse Possession — Notice.

Evidence that the owners of the paper title to lands permitted the one claiming by adverse possession under “color” to use the lands under claim of ownership for seven j7ears, with both actual and constructive notice thereof, without objection, is competent as some evidence upon the question of such adverse claim.

7. Trials — Opinion of Judge — Appeal and Error — Harmless Error.

A remark of the trial judge, in the presence of the jury, upon the argument of counsel, as to the sufficiency of the evidence is not objectionable as an expression of his opinion, and if otherwise it is without prejudice when it appears that he did not finally adopt his first impression, and sufficiently instructed the jury as to the law.

8. Appeal and Error — Objections and Exceptions — Instructions.

Exception to a charge of the court which was free from error and which covered the case and was correct in principle, that it was not sufficiently full and explicit, without any special request for instructions in the respects complained of, will not be considered on appeal.

*1399. Appeal and Error — Objections and Exceptions — “Contentions.”

Objection that the trial judge did not correctly state the appellant’s contention should be made at the time, and otherwise it will not be considered on appeal.

Brown, J., not sitting.

ActioN tried before Bond, J., and a jury, at November Term, 1918, of TYRRELL.

Plaintiffs alleged and offered evidence tending to show that this land lay within the boundaries of a grant to Josiah Collins, and that a chain of title connected said Collins with Solomon Hassell; that Solomon Has-sell conveyed this land to Jesse Alexander in 1813, and that Jesse Alexander died leaving five children: (1) Abner Alexander, who died intestate without issue; (2) Joseph Alexander, ancestor in blood of some of the plaintiffs; (3) Martha Spruill, ancestor in blood of the remaining plaintiffs; (4) George Alexander, who conveyed his right in the land in controversy to Thomas Alexander; (5) Thomas Alexander, who conveyed his right and the right acquired from his brother George to one William Cahoon, whose title, plaintiffs alleged, had been acquired by defendant.

Plaintiffs further alleged that their interests, ’together, equaled one-half, and that the defendant owned the other half; that the land could not be actually divided, and that a sale for partition was necessary.

Defendant admitted that it had acquired the title of William Cahoon, but pleaded sole seisin and averred that it had acquired a good title for the entire tract by adverse possession.

Upon the trial it developed that there lay within the outer boundaries of the tract of land described in the complaint several other tracts of land, referred to upon the trial and in the first issue and in the judgment rendered as (1) A. C. Sawyer to F. C. Patrick; (2) Allen Cahoon, Nos. 1 and 2; (3) Armstrong Tract No. 1; (4) Kemp No. 1; (5) Kemp No. 2; (6) Armstrong No. 2 Swamp; (7) Armstrong (3, 4, and 5). These tracts are the ones named in red ink on the blueprints, and the correctness of their location in relation to the boundaries of the tract of land described in the petition was conceded by plaintiffs.

In order to show title in itself for these several tracts, the defendant offered grants prior to the Josiah Collins grant aforesaid, and deeds to itself foreign to the title under which the plaintiffs claimed, and evidence of possession of each of said tracts by it and its ancestors in title.

Plaintiffs finally, at the conclusion of the testimony, in open court, disclaimed title to any of the tracts referred to in the first issue and admitted that they could not and did not claim title to any of said tracts, and thereupon this phase was eliminated from the case. The court, with the consent of plaintiffs, frained two issues, the first of which *140involved the tracts of land above described, which, the court answered in accordance with plaintiffs’ admission that they had no title thereto; the second of which issues involved the title to the remainder of the land described in the petition outside of the boundaries of the above tracts.

For the purpose of showing sole title in itself for the lands referred to in the second issue (that is, that portion of the land described in the petition outside of the tracts referred to in the first issue), the defendant ■offered:

(1) Deed from George H. Alexander to Thomas H. Alexander.

(2) Deed from Thomas Alexander to "William Cahoon, in 1833, which purported to cpnvey in fee, with warranty, the entire tract of land described in the petition.

(3) Deed from William Cahoon to James S. Cahoon, in 1839, which purported to convey in fee, with warranty, a tract of land which included within its boundaries the tract described in the petition.

(4) Petition filed by Jordan L. Jones, administrator of James S. Ca-hoon, in 1849, in court of pleas and quarter sessions, asking for a sale of his intestate’s lands to make assets, with evidence of the clerk of the court that a diligent search of his office did not show any other papers in his office relative to’ said proceeding.

(5) Certain entries on the appearance docket for January Term, 1849, of court of pleas and quarter sessions of Tyrrell County.

(6) An account of the lands of Jordan L. Jones sold by his administrator.

(7) Deed from Jordan L. Jones, administrator, to Charles McCleese, which purported to convey in fee the entire tract of land described in the petition. This deed recites that it was made pursuant to a sale by virtue of a petition filed by grantor at January Term, 1849.

(8) Partition proceeding of Martha Sawyer et al. v. C. E. Tamem ■et al. The pleadings alleged that the parties to this proceedings were the owners in fee simple of the entire ¡tract of land in controversy, and the court ordered ¡the sale <of the said tract and appointed M. Majette commissioner. The sale was made and duly confirmed and Majette, commissioner, was ordered to make deed1 to C. R. Johnson, the purchaser.

(9) Evidence tending to show that the parties to said proceedings were all the heirs at law of Charles McCleese.

(10) Deed from M. Majette, commissioner, to C. R. Johnson (general manager of the Richmond Cedar Works in North Carolina), in 1893, made pursuant to the last-mentioned special proceeding and purporting to convey in fee several tracts of land, the second of which included the land now in controversy.

(11) Deed from C. R. Johnson and wife to Richmond Cedar'Works, *141in 1905, which purported to convey in fee several tracts of land, the third of which included the land now in controversy. This deed recites that this tract and one other were bought and held by said Johnson for the Richmond Oedar Works.

(12) Evidence of adverse possession set out in the record.

The principal contentions of appellants at the trial in the lower court were: (1) That they and defendant, and its ancestors in title, were tenants in common, and that, therefore, seven years adverse possession was not sufficient to bar their rights, and (2) that if seven years possession was sufficient, there was no evidence of such possession fit to be considered by the jury.

Defendant, appellee, contends, first, that it is now settled that adverse possession by defendant, or those under whom it claimed, for seven years is a complete and perfect defense to plaintiff’s action.

Assuming, as it further says, for the sake of argument, that some: eighty years ago, when Jesse Alexander died, his children became tenants in common of the land in controversy, and that the effect of the conveyance from George H. Alexander to Thomas H. Alexander was-, only to convey an undivided one-fourth interest in the locus in quo, and that the effect of the conveyance from Thomas Alexander to William Cahoon and from William Cahoon to James S. Cahoon, although they purported to convey the entire interest, was only to convey a one-half' interest to James S. Cahoon and to create him a tenant in common with the other heirs of Jesse Alexander, yet when the court, upon the petition-of the administrators of James S. Cahoon, ordered the sale of the entire-land and it was sold to Charles McCleese and deed was made to him, and when the court later, in the partition proceeding brought by the-heirs at law of Charles McCleese, purported to order the sale of the entire tract, and upon the sale being reported to it entered an order of' confirmation and directed deed to be made to the purchaser, who paid, the purchase money, either or both of these judicial proceedings and the deeds made under either or both of them, were equivalent to an actual ouster of any other tenants in common, constituted color of title to the-whole tract, and seven years adverse possession thereafter was sufficient to bar the entry of any of the plaintiffs, even admitting them to have been tenants in common.

There_were exceptions to the charge of the court which will be noticed, hereafter.

The verdict was as follows:

1. What interest, if any, do the plaintiffs J. E. Alexander and others own in that portion of the lands described in the complaint or petition in this cause covered by the various tracts platted on map used in this-trial, marked, first, A. C. Sawyer to E. G. Patrick; second, marked Allen *142Gaboon, Nos. 1 and 2; third, marked Armstrong Tract No. 1; fourth, tract marked Kemp No. 1; fifth, tract marked Kemp No. 2; sixth, marked Armstrong No. 2, swamp; seventh, tract marked Armstrong Nos. 3, 4, and 5? Answer: “None” (by consent of plaintiffs.)

2. What interest, if any, do the plaintiffs- J. E. Alexander and others own in that portion of land described in complaint or petition in this cause outside of tracts platted on map used in this trial and referred to in issue 1 by numbers, first, second, third, fourth, fifth, sixth, and seventh? Answer: “None.”

Judgment upon the verdict and plaintiffs appealed.

A. L. Whitley and Aydlett, Simpson & Sawyer for plaintiffs.

J. Crawford Biggs and Thompson & Wilson for defendant.

WaíkeR, J.,

after stating the case: We held in Roper Lumber Co. v. Richmond Cedar Works, 165 N. C., 83, that there is color of title, not where a deed is executed by one tenant in common, which purports to convey the entire interest, the grantor having less than an entirety, but where a deed is executed under a judicial proceeding which purports to sell and convey an entirety, and where some of the tenants in common had been made parties to the proceeding under which the court ordered the sale. Discussing this point, we said: “This Court has held that a deed by one tenant of the entire estate held in common is not sufficient to sever the unity of possession by which the tenants are bound together, and does not constitute color of title, as the grantee of one tenant takes only his share and 'steps into his shoes! In such case twenty years of adverse possession under a claim of sole ownership is required to bar the entry of other tenants under the presumption of an ouster from the beginning raised thereby.” Cloud v. Webb, 14 N. C., 317; Hicks v. Bullock, 96 N. C., 164; Breeden v. McLaurin, 98 N. C., 307; Bullin v. Hancock, 138 N. C., 198; Dobbins v. Dobbins, 141 N. C., 210, and cases cited.

We are not inadvertent to the fact that this State stands alone in the recognition of the principle, the others holding the contrary, that such a deed is good color of title (1 Cyc., 1078 and notes) ; but it has too long been the settled doctrine of this Court to be disturbed at this late day, as it might seriously impair vested rights to do so. It should not, though, be carried beyond the necessities of the particular class^ of eases to which it has been applied, but confined strictly within its proper limits; otherwise we may destroy titles by a too close attention to the technical considerations growing out of this particular relation of tenants in common, and more so, we think, than is required to preserve their rights. This view has within recent years been thoroughly sanctioned by the Court.

*143“Where less than the whole number of tenants join in a proceeding to sell the common estate for partition, and the same is sold, a deed made under order of the court to the purchaser is color of title, and seven years adverse possession thereafter by him under the deed will bar the cotenants who were not parties.” Amis v. Stephens, 111 N. C., 172; McCulloh v. Daniel, 102 N. C., 529; Johnson v. Parker, 79 N. C., 475.

It will be found in the case first cited that there were tenants who were not made parties to the proceeding at law, and yet they were held to be barred by the adverse possession of seven years; and this was because the Court attached importance to the fact that the deed had been made under a decree in a judicial proceeding which closely resembled one made by a stranger to the title held by the cotenants. Only a part of the estate held in common was sold for partition, but the parties to the proceeding claimed the entirety in that part, or purparty, as it is technically called. In that case the Court said: “In deciding this question, though, the proceeding at law is to be regarded as having the same force and effect as a deed of one not connected with the tenancy would have, it purports to sever the relation of all the cotenants, whether it ■does so in law or not at the time, as against those tenants not made parties to it.” And further, “The jury have found that plaintiff has had sufficient adverse possession of the land in dispute for seven years under color to -bar the defendant’s right, if they ever had any; and as the State has parted with the original title, judgment was properly entered in favor of the plaintiff upon the verdict.” This decision leaves nothing to be said in. favor of appellants’ contention upon this point.

The second position taken by the plaintiffs is that there was no evidence of adverse possession fit to be considered by the jury. This involves the inquiry as to what is adverse possession necessary to ripen title. The possession need not have been during the period next preceding the commencement of the suit; but if the title ripened by adverse imssession at any time prior thereto, it will be sufficient for a recovery, unless subsequent to its vesting it had in some way been divested. Christenbury v. King, 85 N. C., 229. The possession need not be unceasing, but the evidence should be such as to warrant the inference that the actual use and occupation have extended over the required period. Berry v. McPherson, 153 N. C., 6.

Judge Bond charged the jury that possession is the making that use of land of which it is susceptible in its present condition; for example, cutting timber from timber land, kept up with such frequency and regularity as to give notice to the public that the party cutting or having it cut is claiming the land as his own, and that it is done in such a way as to constantly expose the party to a suit by the true owner is sufficient if done for the time required by law to ripen the color into a good title. *144Occasion trespasses will not do. Tbe acts must be su,ch as at all times to subject tbe party doing tbe acts to an action at tbe instance of tbe true owner. Seven years possession under color of title before suit is begun, under known and visible lines and boundaries adversely, notoriously, continuously and exclusively, will ripen title in tbe parties having sucb possession. Plaintiffs certainly could not complain of tbis instruction, as it is sustained by all tbe authorities.

In determining tbe question of adverse possession, Mr. Wood says that tbe jury may take into consideration tbe nature and situation of tbe land, tbe using of it in tbe ordinary way by tbe grantees to whom it was conveyed, and tbe placing of tbe deeds on record, passing over tbe tract, employment of agents living in tbe neighborhood to look after it and prevent trespasses upon it, payment of taxes continuously under claim of title, and other sucb facts and circumstances may be considered by them in connection with other acts denoting a claim to it, and tbe exercise of dominion and ownership over it. Wood on Limitations, sec. 268, p. 569.

What is sufficient to constitute tbis actual possession depends upon tbe character of tbe land and also tbe circumstances of tbe case. It involves, as a general rule, tbe doing of acts of ownership on tbe land sufficiently pronounced and continuous in character to charge tbe owner with notice that an adverse claim to tbe land is asserted. Tbe question whether, in any particular case, there was an actual and adverse possession of the land is usually one of fact for tbe jury under tbe instructions of tbe court. Tiffany Eeal Property, 1007.

A standard author has said: Actual possession of land consists in exercising acts of dominion over it and in making tbe ordinary use of it, and in taking tbe profits of which it is susceptible. Tbis dominion may consist in and be shown by a great number and almost endless combination of acts, and where tbe statute of limitations has not designated certain things as requisites tbe law has prescribed no particular manner in which possession shall be maintained and made manifest. Nor, on tbe other band, has the law attempted to lay down any precise rules by which tbe sufficiency of a given set of facts to constitute possession may be determined. It is ordinarily sufficient, if the acts of ownership are of sucb nature as tbe claimant would exercise over his own property and would not exercise over another’s. Whether there has been sufficient adverse possession to ripen title is a mixed question of law and fact, and its solution must necessarily depend upon the situation of the parties, the nature of the claimant’s title, the character of land, and the purpose for which it is adapted and for which it has been used. All these circumstances must be taken into consideration by the jury, whose peculiar province it is to pass upon tbe question. ■ The only rule of general appli*145cability is that tbe acts relied upon to establish such possession must always be as distinct as tbe character of the land reasonably admits of and be exercised with sufficient continuity to acquaint the true owner with the fact that a claim of ownership, in denial of his" title, is being asserted. 1 Cyc., pp. 983, 984; 2 C. J., pp. 54, 55.

As the question still appears to be misunderstood, and is frequently the subject of contention, it may be well to state the principles settled by this Court in former cases. Says Ruffin, C. J.: I think the rule is, that exercising that dominion over the thing and taking that use and profit which it is capable of yielding in its present state is a possession. It is all that can be done until the subject itself shall be changed. It is like the case stated in the books of cutting rushes from the marsh. This is sufficient, though it might appear that dikes and banks would make the marsh arable. Simpson v. Blount, 14 N. C., 36.

And Judge Gaston: Entering upon, ditching and making roads in a cypress swamp, and working timber into shingles, was sufficient possession, if continued for the requisite time, to ripen a defective title into a perfect one. Tredwell v. Riddick, 23 N. C., 56.

And again, by Ruffin, C. J.: The occupation of the pine land by annually making turpentine on it is such an actual possession as will oust a constructive possession by one claiming merely under a superior paper title; and in this opinion the Chief Justice calls attention to the fact that making turpentine from the trees is notice to the true owner, because it is necessarily visible, and the trees are boxed and the sides of' the trees are scraped with a round hack, making the work easily visible to the eye. It was, therefore, held that occupation of pine land by annually making turpentine on it is such an actual possession which will in time mature the title against a constructive possession by one claiming merely under a superior paper title. The leading idea is that there shall be notice to the world, so that any one claiming adversely may have an opportunity to assert his title. Moore v. Thompson, 69 N. C., 121.

The Court held in Britton v. Daniels, 94 N. C., 786, that the erection of a spring-house and the use of a spring was sufficient adverse possession of a fifty-acre tract of land on which the spring was located. See, also, Staton v. Mullis, 92 N. C., 624, 631. It has further been said that the test of the sufficiency of the possession to fully mature title depends upon the question of whether a right of action had existed for the statutory period, when the suit was instituted, in favor of the parties against whom the benefit of the lapse of time is claimed. Everett v. Newton, 118 N. C., 923.

In Coxe v. Carpenter, 157 N. C., 557, the evidence tended to show that the land was only fit for use as timber land, and that Colonel Coxe *146did not clear any of the land, but be and bis tenants every year cut timber from tbe land to manufacture into lumber and also for firewood and bouse bote, roads were used and new ones laid out for tbe purpose of using tbe land in its then state and condition. In tbe opinion, tbe Court said: “There is no doubt but that tbe possession, if adverse, was open, visible, notorious and continuous, and no owner of land could have failed to take notice of it as an assertion against bis title from tbe very beginning. There was also evidence that tbe iDlaintiffs and those under whom they claimed bad possession of the land for more than seven years. We are of the opinion that there was sufficient proof of facts showing adverse possession, and tbe case was properly submitted to tbe jury for their consideration.” Tbe Court quotes from a former case to tbe effect that possession was as decided and notorious as tbe nature of tbe land would permit, and offered unequivocal indication that plaintiff and bis father were exercising tbe dominion of owners and were not pillaging as trespassers. Berry v. McPherson, 153 N. C., 4.

We held in Locklear v. Savage, 159 N. C., 238: “What is adverse possession within tbe meaning of tbe law has been well settled by our decisions. It consists in actual possession, with an intent to bold solely for tbe possessor to the exclusion of others, and is denoted by tbe exercise of acts of dominion over tbe land, in making tbe ordinary use and taking tbe ordinary profits of which it is susceptible in its present state, such acts to be so repeated as to show that they are done in tbe character of owner, in opposition to right or claim of any other person, and not merely as an occasional trespasser. It must be decided and notorious as tbe nature of tbe land will permit, affording unequivocal indication to all persons that be is exercising thereon tbe dominion of owner,” citing Loftin v. Cobb, 46 N. C., 406; Montgomery v. Wynns, 20 N. C., 527; Williams v. Buchanan, 23 N. C., 535; Burton v. Carruth, 18 N. C., 2; Gilchrist v. McLaughlin, 29 N. C., 310; Bynum v. Carter, 26 N. C., 310; Simpson v. Blount, 14 N. C., 34; Tredwell v. Reddick, 23 N. C., 56. That decision has been cited and approved in the following cases: Green v. Dunn, 162 N. C., 343; Locklear v. Paul, 163 N. C., 338; Christman v. Hilliard, 167 N. C., 7; Reynolds v. Palmer, ib., 455; Horton v. Jones, ib., 667; Lumber Co. v. McGowan, 168 N. C., 87; McCaskill v. Lumber Co., 169 N. C., 25; Stallings v. Hurdle, 171 N. C., 5; Cross v. R. R., 172 N. C., 122, 125; Holmes v. Carr, ib., 215; Kluttz v. Kluttz, ib., 623; Richmond Cedar Works v. Pinnix, 208 Fed. Rep., 785 (op. by Connor, J.), and more recently in Waldo v. Wilson, 174 N. C., 626, where Justice Brown thus applies tbe rule: “There is evidence of an actual occupancy, possessio pedis, of a very small part of 6317, which defendant undertakes to explain, but that is a question for tbe jury. Tbe adverse and unexplained possession of so small a part may not give *147title to the whole tract, but coupled with all the other evidence in the record we think, under our decisions, that, taken as a whole, the evidence is sufficient to go to the jury that they mqy, under a correct charge, draw their own conclusions from it,” citing Locklear v. Savage, 149 N. C., 236; McLean v. Smith, 106 N. C., 172; Hamilton v. Icard, 114 N. C., 538; Bryan v. Spivey, 109 N. C., 67; Osborne v. Johnson, 65 N. C., 26; Lenoir v. South, 32 N. C., 241; Christman v. Hilliard, 167 N. C., 7.

The plaintiffs contend, though, that there was not sufficient evidence •of adverse possession by the defendants. It would be vain and useless, and would serve no good purpose, to review the testimony upon this question in detail. "We have examined it carefully and have concluded that "there is ample evidence to establish all the elements required to show .such an adverse possession as will bar the true owners’ right of entry .and transfer the proprietorship to. the disseisor. The statute of limitations, while it is always destroying titles, is also constantly building •them up. It has been well said that where an adverse relation is fixed, .and continues for the required period, time covers the transaction as with a mantle of repose. 18 Wallace (U. S.), 493; 25 Cye., 1168 and note 61. It is truly a statute for the quieting of titles and warns those who sleep upon their rights that if their silence is too long continued they may lose them, for the law favors the active and vigilant. As plaintiffs say that there was no evidence of adverse possession, such as there is must be taken and considered most strongly against them, rejecting all in their favor. We cannot apply this rule without concluding at •once that this contention must fail.

The locus in quo is swamp land and could only be used for the purpose ■ of cutting and removing the trees for lumber, they being mostly juniper, which was standing in or near rivers and creeks, such as Alligator River, Northwest Fork, and Juniper Creek. These trees were cut and hauled away, and generally unloaded at Ballast Bank. The premises were, •therefore, used and controlled just as would be done by the true owner, and the work was so long continued and so notoriously done as to give fair notice to any claimant of the land, and there is evidence to show •that there was actual notice. It was also posted in places to warn tres-passers away. There are other facts and circumstances which more or less tend to show possession of the land in the character of owner, and the doing of such things openly and persistently as indicated a clear .assertion of title to it. The jury have found upon- such testimony that the defendants had acquired the title Jby color and sufficient adverse -possession, following the instructions of the court, which we deem to be' Tree from any error, and unless there is some sound and valid objection mot yet considered, we find no ground for a reversal.

The proceeding, entitled Jordan L. J ones, Administrator of James S. *148Cahoon, v. Sarah Ann and Elizabeth Cahoon, his heirs, while not complete, is sufficient to show a record, consisting of the petition, order of sale of the lands to pay debts of the deceased, and confirmation of the-sale to Charles McCleese, account of sale, etc., service of process on the-guardian of the two defendants, who were infants, and deed to purchaser ; and while some of the essentials .must be inferred from the actual existence of others as shown in the roll, all' are sufficiently substantiated by the documents themselves and entries on the minutes of the court. There is really more reliable evidence in this case of the-pendency of the proceedings in the court of pleas and quarter sessions-of Tyrrell, at January Term, 1847, and of their regularity throughout,, from the original process to the final decree, than there was in Irvin v. Clark, 98 N. C., 437, as to the validity of the proceedings there in question, for in other material respects there were more deficiencies there,, but the court in that case admitted the mere fragment of the minutes-which was. offered by defendants as evidence of the entire record. Furthermore, the evidence in this case shows that there was a partition proceeding between the heirs at law of Charles McCleese, entitled Martha Sawyer et al. v. C. W. Tatem et al., in which the court decreed a sale of the same lands, and they were sold to C. R. Johnson, the sale confirmed and deed executed by commissioner, Mr. Majette, to 0. R. Johnson, who-conveyed the lands to the defendant.

It would seem that all this record is fully sufficient to bring this case-within the operation of the principle settled in Roper Lumber Co. v. Richmond Cedar Works, 165 N. C., 83, where we held that a purchaser at a judicial sale of land which was held in common, made for partition or otherwise, and a deed to the purchaser by the commissioner under the decree of the court were sufficient to constitute color of title, and that seven years adverse possession thereunder would vest the title in the purchaser as against the former tenants so holding the land. We, therefore, find no error in submitting the case to the jury in this respect.

The fact that none of the plaintiffs, as cotenants now claiming the-land, made demand upon the defendant or those under whom it holds,, or protested against their acts of trespass during the seven years and. more, was surely competent, it being some evidence upon the question of adverse possession, as the failure to list the land for taxes would have-been. Austin v. King, 97 N. C., 339. It would be strange if the owner of land should permit it to be occupied and used profitably and adversely by another, under a claim of ownership, without making any claim to-it for seven years. This is not the usual conduct in such cases. The fact that the adverse occupancy continued for so long a period of timé-is some evidence that the plaintiffs knew of it.

The remark of the court to counsel alone, though in the presence and *149bearing of tbe jury, as to tbe legal phase of tbe testimony, wben be •asked for tbe views of counsel, was no expression of opinion witbin tbe meaning and intent of tbe statute. Observer Co. v. Remedy Co., 169 N. C., 251. It was beld in Harris v. Greenville Traction Co., 85 S. E., 899, that a remark by the trial judge in overruling a motion for a directed verdict was not in violation of a constitutional provision as an expression of opinion upon tbe weight or sufficiency of tbe evidence to prove a fact. 101 S. C., 360. If tbe court could not call for an argument from counsel upon tbe law of tbe case, for example, upon tbe question of law whether there is any evidence for tbe jury, trials could not be easily or expeditiously conducted. In a proper case, we have no doubt tbe learned judges would, in tbe exercise of their discretion, protect tbe parties by temporarily dismissing tbe jury wben it appeared that either party might be prejudiced by tbe discussion of tbe law. There was no expression of opinion upon tbe facts, but merely upon tbe law, and tbe learned judge did not finally adopt bis first impression. There was clearly no prejudice. S. v. Jones, 67 N. C., 285; S. v. Browning, 78 N. C., 555; Williams v. Lumber Co., 118 N. C., 928.

If tbe instructions of tbe court to'the jury were not sufficiently full and explicit, or plaintiffs desired any particular phase of tbe ease to be stated, they should have submitted a special request for what they wanted. Simmons v. Davenport, 140 N. C., 407; Potato Co. v. Jeanette, 174 N. C., 237. In tbe absence of such a request, we must bold tbe charge to be free from any error, as it covered tbe case and was correct in principle, and it was quite responsive to plaintiffs’ prayers for instructions.

An objection that tbe judge did not correctly state tbe contentions of a party, wben not made at tbe proper time, is unavailing. McMillan v. R. R. Co., 172 N. C., 853; S. v. Foster, ibid., 960.

Tbe complaint that tbe judge did not state tbe law applicable to both sides, but only on defendant’s side, is not supported by tbe record. Other exceptions are clearly without merit.

After a critical examination of tbe entire record, and upon a motion to nonsuit, or for tbe direction of a verdict, viewing tbe evidence most favorably for tbe defendants, as we should do (Lynch v. Dewey Bros., 175 N. C., 152), we find no reason to disturb tbe result.

No error.