FLOWERS . ALFORD. established, clearly this was not reviewable on appeal." Munden v. Casey, 93 N. C., 97. In the case before us there were conflicting affidavits; the matter was in the discretion of the Judge below; if he had denied the motion upon the ground that he had no power to grant it, a question of law would have been granted to us, upon appeal, which we might have reviewed; he gives no reason, however, but simply exercises his discretion and refuses the motion. If this was a motion to set aside a judgment, under section 274 of The Code, for excusable neglect, it could not have the desired effect, if granted; for, if the judgment was vacated, the verdict would stand, and, as is said in Beck v. Bellamy, 93 N. C., 129, in regard to this section of The Code, "the statute, in conferring the power, confines its exercise to judgments rendered under the specified conditions, and does not embrace such as necessarily follow the verdict, and the setting aside of which, without at the same disturbing the verdict, would be of no advantage to the party, for it must again be entered in response to the jury findings. To vacate both, is necessary to afford the desired relief, and this would be to grant a new trial, which can only be done at the term when it took place. Clemmons v. Field, 99 N. C., 400. So, it appearing from the affidavits that his Honor had no power to set aside the judgment under section 274 of The Code, because this is not one of the cases embraced in the provisions of that section, and that he exercised his discretion in refusing to grant a new trial for newly discovered evidence, the motion is Denied. ASBURY v. FAIR. S. M. ASBURY v. R. G. FAIR et al. Trespass on Land-Tille-Grant-Evidence-Insanity Limitation-Privity-Possession. 1. When neither claimant is seated on the lappage in dispute, and when both are on it, the law adjudges the possession to follow the older title. 2. Seven years possession and cultivation of land under a junior grant makes title against an older one: and where there was evidence from which such possession could be found, it was error to hold that plaintiff (claiming under the junior grant) could not recover. 3. The statute of limitations, if it began to run before the commencement of insanity, or other disability, would not, on that account, cease, and when there was any testimony from which such a state of facts could be found, their consideration should not have been withdrawn from the jury. 4. Under the law in force, no connection need be shown between the successive occupants to establish the presumption of a grant for the actual possessio pedis. 5. Insanity is a question for the jury; and even where the testimony as to the fact, while not directly disputed, was capable of more than one construction, it was not proper to withdraw it from the jury. 6. Privity of estate between the plaintiff, and those under whom be claims, is not necessary to entitle him to the advantage of their possession to show title by the statute of limitation. 7. Statute of limitations need not be pleaded specially to show title. 8. Unless the defendants connect themselves with their elder grant, it serves them no purpose, except to take title out of the State, and in this it is of equal avail to the plaintiff also. This was a CIVIL ACTION of trespass on land, to try title, and for damages, tried at Fall Term, 1892, of BURKE Superior Court by Armfield, J. The following issues were submitted: 1. Did the defendants commit the trespass alleged in the complaint on the lands of plaintiff described in the complaint? ASBURY v. FAIR. 2. What damage has plaintiff sustained by reason of said trespass? Plaintiff offered a deed from D. W. Stacy to S. M. Asbury, dated 16th June, 1890. A deed from Jos. Brittain, Sheriff, to D. W. S'acy, dated January 28, 1869; to which defendants object. A deed from Joseph Ferree, trustee, to D. W. Stacy, dated 23d May, 1856. A deed from John H. Pearson, Sheriff, to Jamison Queen, dated 20th February, 1852; to which defendants object and except. Grant from the State to William B. Craig and Mark Brittain, dated 4th September, 1818, and entered 30th September, 1817. Plaintiff introduced D. W. Stacy: "I am seventy one years old; I moved to this county in 1837; settled on the land in 1856; my house was between 'I' and 'J;' I lived there and had possession till I sold plaintiff in 1890; made my garden. in 1856; I had stables on the disputed land and a workshop; my predecessor, Jimson Queen, used it for a store-house; I moved off in 1872, but had tenant there till sold; some of the disputed land was partly cleared when I went there; I cleared some twelve or fifteen acres; part of it was in possession of Dale; I got my firewood off it; I got timber and sold it off the woodland; sold it to Presnell-thirty or forty of them off disputed land; all fit for timber; I used and treated disputed land as I did my own; Brittain deed and Ferree deed both cover the land in dispute: plaintiff lived in two hundred yards of land while I was using it." On cross-examination, he said, among other things: "I don't think Dale was cultivating any of the lappage." Jamison Queen: "I moved there in 1847, and built a house; I made a garden next year where the garden is now; about two years after I went there Dale had to be confined, chained; was not at himself when I went there; he went ASBURY v. FAIR. about; then I built a storehouse on the lappage; I lived there four or five or six years; I did not know where the line of the Morgan grant of the Deal line was; built house and made garden in ignorance of its location; Dale cultivated land on the lappage while I lived there; he had a part of the field under fence on lappage for years; he cultivated this after I left there; I don't know how long; it was cleared after I went there; Dale had been deranged before I went there, and when I went there he seemed scrambled, addled, and sometimes had pretty good sense." The defendants then offered their grant of 1804, and evidence tending to support their possession thereunder. When the evidence was closed, and the Court asked the counsel of plaintiff how they could get along when all the evidence showed that John Deal had been insane since 1847 or 1849, and that there had been a possession of his, or under him, since on the lappage, and that the mother of defendants, under whom they claim, had been a married woman continuously since Deal's death, Deal's title being the oldest and covering the land, plaintiff's counsel called the attention of the Court to the case of Headen v. Womack, and insisted that the insanity or coverture did not apply to this case, to affect plaintiff's title by possession in lappage. His Honor was of a contrary opinion and in deference. thereto, and to the further intimation of his Honor that he should instruct the jury that no statute ran against defendants after Dale became insane, plaintiff suffered a nonsuit and appealed. The other testimony necessary to the presentation of this case may be gathered from the opinion. Messrs. M. Silver and F. H. Busbee, for plaintiff. ASBURY v. FAIR. AVERY, J.: The defendants offered a grant issued in 1804, and the plaintiff introduced one issued in 1818, both of which, according to the evidence, cover the twenty-three acres in dispute. The plaintiff offered other title deeds, but the defendants introduced none, so far as appears from the record. The testimony was conflicting as to whether the defendants, and those under whom they claim, ever had a possession on the lappage under the older grant or not, until they recently engaged in cutting trees thereon. D. W. Stacy testified that he did not think that John Dale, ancestor of defendant, had any clearing on it at all when the former took possession as predecessor of plaintiff in 1856, while Jamison Queen, the predecessor of Stacy, testified that Dale had cleared and had under fence a field on the lappage, while he occupied the house in which Stacy afterwards lived. Queen testified further that Dale cultivated this portion of the lappage for years, but did not state when such occupancy began or when it ended. Hezekiah Fair, the son-in-law of John Dale, testified to a continuous possession by John Dale from 1859 till 1869, when it was abandoned, and the rails around the field were hauled off by Stacy, the adverse claimant. So that if it was material to ascertain whether Dale had possession of any part of the lappage before he became insane, or at any other time, or how long he held it adversely, it should have been left to the jury to pass upon the conflicting evidence and arrive at the truth. If neither of the claimants is seated on the lappage, the law adjudges the possession to be in him who has the older title-in our case John Dale, and those claiming under him, if they derived title through the Morgan grant, issued in 1804. If Queen, Stacy and plaintiff, claiming under the Brittain grant of 1818, were in possession of a part of the lappage, and John Dale, and those claiming under him, neither occupied nor cultivated any part of it (as Stacy testified), then the cccupant under the junior title held con |