(after stating the facts). There was a good deal of evidence offered on the trial, and numerous exceptions taken by the plaintiffs to the ruling of the Court upon questions arising upon inadmissibility of evidence, all of which, except those herein set forth, we think impertinent to the real merits of the controversy.
After stripping the case of all extraneous and irrelevant matter, it narrows itself down to the exceptions taken by the plaintiffs to the charge of the Judge to the jury, in his instructions as to the presumption of a deed after an actual possession of twenty years, and the bar of the statute, after an actual adverse possession of seven years with color of title.
Although his Honor laid down the principles of the law correctly, as appertaining to those questions, his instructions were not applicable to the facts of the case. For instance, his Honor charged the jury, that if Wells had possession of part of the land covered by plaintiffs’ deeds, claiming the same up to known, and visible boundaries, for twenty years before the commencement of this action, exclusive of the time from May 20th, 1861, to Jan. 1st, 1870, claiming the same as his own, against all the world, and laying himself open to an action, he would have had a constructive possession of all the land, up to his known' and marked lines, and the jury should presume the necessary mesne conveyances to him from the grantee of the State, although he should have no paper title.” The facts of the case did not warrant this instruction. There was no evidence of an open and notorious possession of any part of the loans in quo by the defendant for twenty years, up to known and visible boundaries.
*352It was in evidence that the Northwestern line of the deed to Wells, made by Lowry, Harbin and Robinson, had been run for Wells in 1844, when negotiating with the Loves for some adjoining land, but there was no evidence that he ever obtained any deed from Love for land up to that boundary, or that he ever claimed the land up to that boundary, until he obtained the deed from Lowry, Harbin and Robinson, which was executed on the 6th of October, 1858. Nor even then did he have such a possession of the lappage, as would amount to such an open, notorious and adverse possession, as would presume a deed from lapse of time, for Wells himself testified that he had possession of some part of the lappage since 1844; and about the year 1861, he moved out his fence, so as to take in about one quarter of an acre of the lappage, but he did not say how much he had in possession before that time. It must have been a very small portion, since when widened out it only reached to of an acre.
The witness Wells, did not state whether he took that possession in assertion of his rights, or through inadvertence as to the line. When there is a long line, running over a wild, broken mountainous ridge, such as that was, up to which the defendant obtained a possesion, a small portion might be taken and held for years without any one knowing whether there was a trespass or not. Therefore, it has been held, that when the extent of a wrong doer’s possession is so limited as to afford a fair presumption that the party mistook his boundaries, or did not intend to set up a claim within the lines of the deed of the other party, it would be a proper ground for saying that he had not the possession, or that it was not adverse.” ■ Bynum v. Carter, 4 Ired., 310; Gilchrist v. McLauchlin, 7 Ired., 310 ; Harris v. Yarborough, 4 Dev., 158. In this last case, RufpiN, C. J., said: “ I think that in such a case as this, there ought to be some evidence of the owner’s knowledge of the claim, besides the mere possession of so small a parcel.” But the defendant insisted, that if this possession, commencing in 1844, was not of such a character as to make it adverse to the plaintiff, he extended his fence *353in 1861, so as to embrace some quarter of an acre of the lappage, but that cannot help the matter, for striking out the intermediate years, from the 20th of May, 1861, to the 1st of January, 1870, the defendant did not have twenty years’ possession, prior to the commencement of the action on the 8th day of February, 1882. We think there was clearly error in his instructions on this point.
The plaintiff’s next and most important exception, was to the charge of the Court, “that the deed from Lowry, Harbin and Robinson to John W. Wells, was color of title to all the land included in its boundaries; that the words used in said deed ‘including all lands not heretofore sold,’ were merely descriptive of the lands conveyed, and are not an exception, — and if the defendant had been in possession for seven years, of any part of the lappage, the plaintiff having no possession therein, then the title of said Wells would ripen to the whole of said lappage, although they should find that the same had been previously conveyed, and was held by other titles at the date of said deed.”
This exception was well taken, and should have been sustained. The charge was erroneous.
Bo^h parties claimed under the grant to Allison. The plaintiffs showed a long, uninterrupted possession, of some seventy-five or eighty years, by successive conveyances, of the land claimed by them, which the jury found covered the loaus in quo, but neither they, nor those under whom they- claimed, had ever been in the actual possession of the lappage.
The defendants claimed the adjoining tract, under a deed from the University, as escheated property, to Lowry, Harbin and Robinson, dated the 14th of April, 1854, in which, after describing the boundaries of a large body of land, there is the following reservation or saving, “within which there is much land held by other titles, and some tracts held under contracts in writing with Robert and James R. Love, which are excepted.” And then in the deed from Lowry, Harbin and Robinson, to J. W. Wells, the defendant, bearing date the 6th of October, 1858, *354after describing the boundaries by courses and distances, there is a similar reservation or saving, expressed in the words “ including all lands not heretofore sold.”
His Honor told the jury, that these words were not exceptive, but only descriptive of the land conveyed. It is true they were descriptive, but they were descriptive only of all the lands included in the boundaries, that were not included in the deeds and conveyances therebefore made to other persons. These lands were as much excluded from the operation of the deed to Wells, as if they had not been embraced within the sweeping boundaries of that deed. It not only did not profess to include them, but expressly excluded them from its operation, wheneverit might be ascertained that they fell within the exception.
'In the case of McCormick v. Monroe, 1 Jones, 13, where the exception in the deed was two hundred and fifty acres, out of 500 acres previously granted, J udge PearsoN speaking for the Court, said: “This would point to the means by which the description in the exception may be sufficiently certain to avoid the objection of vagueness, by aid of the maxim id certum, est, quod certum reddi potest. It may be done by proving that a part of the 500 acres included in the plaintiff’s grant, had been previously granted, and what part; and if such part covers the locus in quo, the defendant is not guilty of the trespass.”
He further holds, that he who relies upon the exception, must support it by proof of the facts that bring it within the operation of the above maxim.
Upon this authority, we are led to the conclusion that the deed from Lowry and others to Wells, was not color of title to the land claimed by the plaintiffs and included in the deeds under which they claimed title, for the reason, that the deed from Lowry and others to Wells, did not convey to him the land covered by'the plaintiff’s deed, so that although he may have had actual adverse possession of the lappage for more than seven years before action brought, he had no such color of title as ripened his possession into an absolute title.
*355Our opinion is there was error, and this must be certified to the Superior Court of Buncombe county, that a venire de novo ■may be awarded.
Error. Reversed.