money, unless special provision in revenue act: Wilmington v. Cronly, 122-388.

376. Action on account current. In an action brought to recover a balance due upon a mutual, open and current account, where there have been reciprocal demands between the parties, the cause of action shall be deemed to have accrued from the time of the latest item proved in the account on either side.

Code, s. 160; C. C. P., s. 39. A mutual open and current account defined in Stokes v. Taylor, 104-394. One may be by direct agreement or may be inferred from circumstances: Stancill v. Burgwyn, 124-69. Such inferred agreement may be when one party, with the knowledge of the other, keeps an account of the debits and credits: Stokes v. Taylor, 104394; Mauney v. Coit, 86-463; Hussey v. Burgwyn, 51-385; Green v. Caldeleugh, 18-321. Where there are mutual accounts statute runs from the last dealing between the parties: Robertson v. Pickerell, 77-303—from last item, Stokes v. Taylor, 104-394.

377. Not applicable to bank bills. The limitations prescribed by law shall not affect actions to enforce the payment of bills, notes or other evidences of debt, issued or put in circulation as money by. moneyed corporations incorporated under the laws of the state.

Code, s. 174; C. C. P., s. 53; 1874-5, c. 170.

378. Actions against bank officers and stockholders. The limitations prescribed by law shall not affect actions against directors or stockholders of any moneyed corporation, or banking association incorporated under the laws of this state, to recover a penalty or forfeiture imposed, or to enforce a liability created by law; but such actions must be brought within three years after the discovery by the aggrieved party of the facts upon which the penalty or forfeiture attached, or the liability was created.

Code, s. 175; C. C. P., s. 54. See Houston v. Thornton, 122-375.

379. Aliens in time of war. When a person shall be an alien subject, or a citizen of a country at war with the United States, the time of the continuance of the war shall not be part of the period. limited for the commencement of the action.

Code, s. 165; C. C. P., s. 44.

IV. LIMITATIONS, REAL PROPERTY.

380. Title against state. The state will not sue any person for, or in respect of, any real property, or the issue or profits thereof, by reason of the right or title of the state to the same

1. When the person in possession thereof, or those under whom he claims, shall have been in the adverse possession thereof for thirty

years, such possession having been ascertained and identified under known and visible lines or boundaries; which shall give a title in fee to the possessor.

Thirty years adverse possession takes title out of state even though possession not continuous nor chain of title complete: Wilson v. Wilson, 125525; Walden v. Ray, 121-237; Dills v. Hampton, 92-565; Yount v. Miller, 91-331; Bryan v. Spivey, 109-57; Mallett v. Simpson, 94-37; Cowles v. Hall, 90-330; Davis v. McArthur, 78-357; Reed v. Earnhart, 32-516; Candler v. Lunsford, 20-542; Fitzrandolph v. Norman, 4-564; Pearson v. Simmons, 98-281; Davidson v. Arledge, 97-172; Osborne v. Anderson, 89-261; Melvin v. Waddell, 75-361. But see Price v. Jackson, 91-11; Phipps v. Pierce, 94514.

2. When the person in possession thereof, or those under whom he claims, shall have been in possession under colorable title for twenty-one years, such possession having been ascertained and identified under known and visible lines or boundaries.

Code, s. 139; C. C. P., 18; R. C., c. 65, s. 2. See section 360. For cases on colorable title, possession, adverse possession and known and visible lines and boundaries, and lappage, see under section 382.

GENERAL OBSERVATIONS. General doctrine of subsection 2 substantiated and explained: Gordner v. Lumber Co., 144-110; Walker v. Moses, 113-527. Constructive possession hereunder not interrupted by issuance to another of patent for part of the land where the plaintiff has possession of lappage: Hamilton v. Icard, 114-532. How plaintiff can make out his case as against the world: Campbell v. Everhart, 139-503; Alexander v. Gibbon, 118-796; Mobley v. Griffin, 104-115; Conwell v. Mann, 100-234; Pearson v. Simmons, 98-281. He must show title as against the world or good against defendant by estoppel: Campbell v. Everhart, 139 503. Adverse possession under color of title must be continuous: Malloy v. Bruden, 86-251; also see under section 382. When trustee in an active trust is barred, the cestui que trustent are also barred: Kirkman v. Holland, 139-185. Not necessary to plead the statute, but defendant can make simple denial: Whitaker v. Jenkins, 138-476; Ins. Co. v. Edwards, 124-117; Freeman v. Sprague, 82-366; Asbury v. Fair, 111-251; Shelton v. Wilson, 131-501; see section 360. Both parties claiming under same source, plaintiff's deed being younger but first registered, defendant can overcome it, how: Austin v. Staten, 126-783. No constructive possession will ripen a defective will into a good one: Williams v. Wallace, 78-354. What does and what does not amount to an ouster: Day v. Howard, 73-1; Ward ". Farmer, 92-93; Dobbins v. Dobbins, 141-210.

381. Such possession valid against claimants under state. All such possession as is described in the preceding section, under such title as is therein described, is hereby ratified and confirmed, and declared to be a good and legal bar against the entry or suit of any person, under the right or claim of the state.

Code, s. 140; C. C. P., s. 19. Referred to casually in Prevatt v. Harrelson, 132-350,

382. Seven years' possession under color. When the person in possession of any real property, or those under whom he claims, shall have been possessed of the same, under known and visible lines and boundaries, and under colorable title for seven years, no entry shall be made or action sustained against such possessor by any person having any right or title to the same, except during the seven years next after his right or title shall have descended or accrued, who in default of suing within the time aforesaid, shall be excluded from any claim thereafter to be made; and such possession, so held, shall be a perpetual bar against all persons not under disability.

Code, s. 141; C. C. P., s. 20. For cases as to adverse possession of tenants in common, see under section 384. Cases directly supporting section: Gudger v. Hensley, 82-481; Johnson v. Parker, 79-475; Williams v. Wallace, 78-354; Moore v. Thompson, 69-120; Cox v. Ward, 107-507; Hamilton v. Icard, 114-532; Walker v. Moses, 113-527; Broadwell v. Morgan, 142-475; Brown v. Brown, 106-452; Simpson v. Simpson, 107-552; Mfg. Co. v. Brooks, 106-107; Ellington v. Ellington, 103-54; Allen v. Salinger, 103-14; Campbell v. Crater, 95-162; Logan v. Fitzgerald, 92-645. Not necessary that entry should be under color, when color obtained later: Hawkins v. Cedar Works, 122-87. Adverse possession under color for seven years before, and three years after, death of married woman, bars the heirs: Swift v. Dixon, 131-42. The tacking of possessions together to make up the seven years: Morrison v. Craven, 120-327; Atwell v. Shook, 133-387; Alexander v. Gibbon, 118-796; Scarboro v. Scarboro, 122-234. Seven years possession and cultivation of land under junior grant makes title as against senior grant: Asbury v. Fair, 111-251. Tenant in common's possession as against cotenants, where tenant has title through a judicial sale of the whole, will ripen into title after seven years: Vickers v. Henry, 110-371; also see Gaylord v. Respass, 92-553; Amis v. Stephens, 111-172; Pope v. Mathis, 83-169. The seven years adverse possession need not be the seven years next preceding action: Christenbury v. King, 85-229but it must be continuous and uninterrupted, Bland v. Beasley, 145-168. What possession will protect under this section: Cox v. Ward, 107-507; Williams v. Wallace, 78-356; see also under paragraphs hereunder concerning possession and adverse possession. Not necessary to plead the statute; a general denial will do: Mnfg. Co. v. Brooks, 106-107 and cases cited under section 360-but where lost deed is relied on defendant must plead it: Wilson v. Wilson, 117-351; Hinton v. Pritchard, 102-94. Seven years adverse possession of the second story of a house under color of title will give title: Asheville Div. v. Aston, 92-578. Adverse possession relates only to the true title and the exemptions in the statute as to those under disability can apply only to one having by virtue of his title a right of entry or of action: Berry v. Lumber Co., 141-386. Not presumed that father is agent of his child in holding possession: Barrett v. Brewer, 143-88. When trustee of active trust barred, cestui que trust also barred. When one joint tenant barred, other joint tenants also barred: Cameron v. Hicks, 141-21; Kirkman v. Holland, 139-185.

CASES WHERE THIS SECTION REFERRED TO, BUT ESSENTIAL POINTS ANNOTATED ELSEWHERE: Norcum v. Savage, 140-472; Lindsay v. Austin, 139-463; Campbell v. Everhart, 139-504; Johnston v. Case, 131-491; Brown v. Morisey, 128-138; Britton v. Ruffin, 122-113; McLean v. Smith, 114-357; Zimmerman v. Robinson, 114-39; Cheatham v. Young, 113161; Miller v. Bumgardner, 109-412; Gilchrist v. Middleton, 108-705; Lenoir v. Mining Co., 106-473; Staton v. Mullis, 92-623; Lewis v. McDowell, 88-261; Clayton v. Rose, 87-106; Isler v. Dewey, 84-345; Hill v. Averton, 81-393; Day v. Howard, 73-1.

CASES WHERE THERE IS LAPPAGE: McLean v. Smith, 114-357; Zimmerman v. Robinson, 114-39; Logan v. Fitzgerald, 92-645; Brady v. Maness, 91-135; Asbury v. Fair, 111-251; Scott v. Elkins, 83-424; McAlister v. Devane, 76-57; McCormick v. Monroe, 48-332; Baker v. McDonald, 47-244; Brown's Heirs v. Potter's Heirs, 44-461; Bryson v. Slagle, 44-449; Williams v. Miller, 29-186; Williams v. Buchanan, 23-535; Williams v. Wallace, 78-354; Kitchen v. Wilson, 80-191; King v. Wells, 94-344. WHAT CONSTITUTES "POSSESSION" HEREUNDER. Exercising such dominion over land and making that use of it to which it is capable of being put in its then state in such repeated manner as to show it is done in the character of owner: Baum v. Shooting Club, 96-310; Hamilton v. Icard, 114-538; Patterson v. Mills, 121-258-but when not capable of use at all, see McLean v. Smith, 114-357. Fence built around land unoccupied for purpose of pasture is an inference drawn from Osborne v. Johnston, 65-22. Using land for pasture every winter: Wall v. Wall, 142387. Actual, open, visible occupation of land: Malloy v. Bruden, 86-251. Unequivocal acts of ownership that would have exposed occupant to possessory action at common law: Bland v. Beasley, 145-168; Fuller v. E. City, 118-25; Hamilton v. Icard, 114-532; Shaffer v. Gaynor, 117-15; Everett v. Newton, 118-919; Boomer v. Gibbs, 114-76; Osborne v. Johnston, 65-22. Using a spring and building a spring house over it: Brittain v. Daniels, 94-981. Building shed, quarrying rock, erecting lime kiln, and cutting wood for fuel in making lime: Moore v. Thompson, 69-120. Constructive possession: Staton v. Mullis, 92-623; Hamilton v. Icard, 114-532; see cases under other paragraphs under this section. One tenant in common holds possession for all: Dobbins v. Dobbins, 141-210; Johnston v. Case, 131491; Tharpe v. Holcombe, 126-365; Carson v. Carson, 122-645; Page v. Branch, 97-97; Vickers v. Henry, 110-371; Gaylord v. Respass, 92-553; Neely v. Neely, 79-478; Linker v. Benson, 67-150. Every possession is taken to be under possessor's own title: Bryan v. Spivey, 109-57; Nixon v. Williams, 95-103; Hawkins v. Cedar Works, 122-87. Cases as to possession under former similar statutes: Blackstock v. Cole, 51-560; Morris v. Hayes, 47-93; Lenoir v. South, 32-237; Bynum v. Carter, 26-310; Berryman v. Kelly, 35-269; Bynum v. Thompson, 25-578; Flanniken v. Lee, 23293; Tredwell v. Reddick, 23-56.

WHAT IS NOT SUFFICIENT "POSSESSION." Grantor and plaintiff had raked and hauled straw off of land and father of plaintiff had farmed on an acre or two: Prevatt v. Harrelson, 132-250. Planting part of land in tobacco every year, but no one part for over two years, only inclosing while crop growing: Hamilton v. Icard, 114-532. Paying taxes on land and employing agents with respect to it: Ruffin v. Overby, 88-369. No

constructive possession of land named in deed as previously granted: Basnight v. Smith, 112-229; see also Mfg. Co. v. Frey, 112-160; Melton v. Monday, 64-295; McCormick v. Monroe, 46-13; Wyman v. Taylor, 124430. Occasional entries not sufficient: Williams v. Wallace, 78-354; Shaffer v. Gaynor, 117-15; Hamilton v. Icard, 114-532; Asbury v. Fair, 111-251; Ruffin v. Overby, 105-78.

"Adverse possession" de

WHEN POSSESSION IS "ADVERSE.'' fined and discussed: Parker v. Banks, 79-480. Possession by tenant under a parol gift: Wilson v. Wilson, 125-525; Dean v. Gupton, 136-141. Every possession of land by other than the claimant: Ruffin v. Overby, 88-369. No presumption that possession is adverse: Bland v. Beasley, 145-168; Monk v. Wilmington, 137-322, but see Ruffin v. Overby, 88-369; Alexander v. Gibbon, 118-797. An actual, open, visible occupation of land by another: Malloy v. Bruden, 86-251; Patterson v. Mills, 121-258. By whom adverse possession can be taken: Williams v. Wallace, 78-354. Unequivocal acts of ownership which would have subjected the occupant to a possessory action at common law: Fuller v. Elizabeth City, 118-25; Hamilton v. Icard, 114-532; Shaffer v. Gaynor, 117-15; Lewis v. Covington, 130-543; Worth v. Simmons, 121-357; Everett v. Newton, 117-919; Osborne v. Johnston, 65-22. One tenant in common against another: Dobbins v. Dobbins, 141210; Woodlief v. Woodlief, 136-133; Shannon v. Lamb, 126-38; Jolly v. Bryan, 86-458; Neely v. Neely, 79-478; Covington v. Stewart, 77-148; Page v. Branch, 97-97; Vickers v. Henry, 110-371; Shannon v. Lamb, 126-38; McGill v. Buie, 106-242; Linker v. Benson, 67-150; see also Hicks v. Bullock, 96-164, and other cases cited hereunder under "What constitutes possession. Person entering under a void deed, claiming to own land in fee: Kirkman v. Holland, 139-185. As between heir and widow: Brown v. Morrisey, 124-292; Campbell v. Murphy, 55-357. As against remainderman after death of life tenant: Bullin v. Hancock, 138-198; Wilson v. Brown, 134-400; Hauser v. Craft, 134-319; Staton v. Mullis, 92-623. Possession of father, of widow as homesteader, all tacked together to perfect title by adverse possession: Atwell v. Shook, 133-387. As between mortgagor and mortgagee: Stancill v. Spain, 133-76; Williams v. Kerr, 113-306; Edwards v. Tipton, 85-479; Parker v. Banks, 79-481. Building fence along marked line supposed to be dividing line, when in fact 25 yards over on his neighbor: Mode v. Long, 64-433. Cases as to adverse possession under former similar statutes: Smith v. Reid, 51-494; Loftin v. Cobb, 46-406; Powell v. Felton, 33-469; Gilchrist v. McLaughlin, 29-310; Montgomery v. Wynns, 20-667; Murray v. Shanklin, 20-431; Ring v. King, 20-307.

WHEN POSSESSION NOT "ADVERSE.” Possession by tenant and those claiming under him: Wilson v. Wilson, 125-525; Dills v. Hampton, 92-566; Alexander v. Gibbon, 118-796; McNeill v. Fuller, 121-209; Bonds v. Smith, 106-553; but see Worth v. Simmons, 121-357. When defendant claiming under color can not show continuous possession under his title: Johnston v. Case, 131-491. When claimant has good title to tract part of which he holds adversely, his possession is not adverse as to another part of tract, which is not actually occupied and to which he claims title by possession under color of title: Lewis v. Covington, 130-541. Possession of widow not adverse to husband's heirs: Everett v. Newton, 118-919. One