CALL V. DANCY.

manifestly does not toll the entry of the plaintiffs or defeat their right to recover. There is no evidence that Louisa Dancy acquired her interest in the lands by deed or other writing sufficient in law to constitute color of title. Her own testimony tends to show that she and the other defendants asserted title to the land as tenants in common, by virtue of the long-continued adverse possession of themselves and those under whom they claim, or by descent from J. E. Dancy, or by descent and mesne conveyances. But whether Louisa claimed her one-third interest by adverse possession, without color, held prior to the date of her mortgage, or by adverse possession, with color, or by a paper title or by descent, that title passed out of her by the sale under the power given by her to the Clerk of the Court in the mortgage, the fair and voluntary execution of which she admits, and it is not available to her in any way since the sale, so as to vest a good title in her by any adverse possession short of twenty years duration. Any deed held by her prior to the sale cannot now be used as color. Johnson v. Farlow, 35 N. C., 84; Wilson v. Brown, 134 N. C., 400. The doctrine is fully explained in the last-cited case by Justice Connor. Louisa Dancy could re-invest herself with the title to her former interest only by purchase from the owners or by a new disseisin or ouster, or its equivalent in law, and an adverse possession of twenty years or possession under color for seven years. She has acquired no colorable title since the sale.

The controversy here as to the title, is not between tenants. in common, but between two of the tenants in common and Louisa Dancy, who is an outsider, as to her former one-third interest in the land. The other tenants cannot claim to have defeated the title or barred the entry of the plaintiffs, who had become their co-tenants, for they have not held adversely

WILLIAMS v. RAILROAD Co.

to them, since their title was vested, for a sufficient length of time to produce that result. We have so recently discussed this question that it will be sufficient merely to cite the case. Dobbins v. Dobbins, 141 N. C., 210.

The fact that the defendant Louisa Dancy was not notified of the sale under the mortgage is no defense in this action, as the mortgage does not provide for notice and there is no allegation of unfairness or fraud in making the sale. The sale was duly advertised, and the plaintiffs aver in their petition that the defendant Louisa had due notice of it. No issue was tendered as to the validity of the sale, and that question is therefore not presented. The only question which is really involved in the case relates to the statute of limitations, and the charge of the Court as to that matter was erroWe find in the record no evidence of title in Louisa Dancy. It is clear, we think, that Revisal, sec. 391 (4), and Ray v. Pearce, 84 N. C., 485, have no bearing on the case. A new trial is ordered because of the error in the charge. New Trial.

neous.

H. S. WILLIAMS et al. v. CAROLINA AND WESTERN RAILROAD COMPANY.

(Filed 7 May, 1907).

1. Cases Consolidated on Trial-Separate Appeals. Where actions are united and tried together in the Court below for the sake of convenience, and not consolidated in the sense that they thereby became one action, nor within Revisal, secs. 469 and 411, and the verdict being substantially different as to each party, separate appeals should be taken.

2. Railroads Passengers - Negligence-Damages.-Compensatory damages may be recovered of the defendant for failure of the engineer to stop a train at a flag station when he should have stopped upon being signalled, he having failed to see the plaintiffs'

WILLIAMS v. RAILROAD Co.

signals by reason of negligence in not keeping a proper lookout, and plaintiffs being ready to pay their fare and to take the train from that station to another on defendant's road.

3. Same-Punitive Damages.-Defendant is liable to plaintiffs for such punitive damages, in addition to compensatory damages, as the jury may see fit to award, upon its engineer wilfully refusing to stop the train at a flag station, where it should have stopped under the circumstances.

4. Same-Relief Accorded-Negligence— Suit Upon Contract-Tort. Relief should be given according to the facts alleged and established in a civil action under Revisal, sec. 354, presenting one form of action for the enforcement of private rights and the redress of private wrongs. It makes no difference whether the plaintiff elects to sue upon contract or in tort, forms of action having been abolished.

5. Same Measure of Damages. The plaintiffs' measure of damages, arising from the defendant's responsible negligence in failing to transport him from one station on its road to another station thereon, are those arising from personal annoyance, inconvenience, discomfort and physical effort incident, in this case, to plaintiffs having walked to their destination, a distance of about a mile and a half, and it was error in the Court below to instruct the jury that plaintiff's should have waited for the next train passing in the afternoon in order to recover for the delay and inconvenience in doing so, as otherwise they could not show actual damages.

CIVIL ACTION, tried before Peebles, J., and a jury, at September Term, 1906, of the Superior Court of GASTON County.

This action was brought by the plaintiffs to recover damages from the defendant for failing to stop its train and carry them from Harden Mills, a station on the defendant's road, to High Shoals, another station, a mile and a half away. The train was a mixed one, composed of an engine and freight cars, and a caboose in which passengers were carried. Harden Mills was not a regular but a flag station, at which stops were made to take on passengers, upon proper signals. An action was also brought by L. L. Todd, who was left at

WILLIAMS . RAILROAD Co.

Harden Mills at the same time the plaintiff Williams was, and the two actions, by consent, were tried together. The plaintiffs were in the store of one Costner, at Harden Mills, when the train blew for the station. They and Costner went out and signaled the train to stop. There was evidence tending to show that the signals were those required by the rules of the company. The plaintiffs alleged and offered evidence tending to show that the engineer and fireman actually saw the signals and failed to stop the train for them to get on, and that, if they did not see them, they could, by keeping a proper lookout, have seen the signals in time to have stopped the train. There was also some evidence that the signals were not given as required. The plaintiffs walked to High Shoals. The next train from Harden Mills to High Shoals passed in the afternoon of that day, some time after the freight train.

The plaintiffs requested the Court to charge as follows: "If the jury find from the evidence that the defendant negligently failed to stop its train for the plaintiffs at the time and place in question, then the plaintiffs are entitled to recover nominal damages, even if the plaintiffs sustained no actual damages. And if the jury find that the plaintiffs were, by the negligence of the defendant, put to any inconvenience, the jury should take such inconvenience into consideration in awarding such compensatory damages as the jury should find the plaintiffs have sustained." This instruction was refused and the plaintiffs excepted.

The Court charged the jury as follows: "1. If the plaintiffs have satisfied you by the greater weight of the evidence that they made a signal to the engineer to stop at the usual place and in the usual manner of making signals, and that the signal was made in time for the engineer to have stopped his train at the station, or the rear end of it, at the place

WILLIAMS v. RAILROAD Co.

where the passengers usually got on, or, further, that the engineer saw the signal and recognized that it was a signal for him to stop, and he wilfully and intentionally failed to stop and ran by, you will answer the first and third issues 'Yes'; but if the plaintiff has failed to satisfy you of these facts, it is your duty to answer the first issue and the third issue 'No.' If you answer them 'No,' you need not trouble yourselves about the others at all, as that ends the case. 2. If the plaintiffs had sued on contract, as I stated before they had a right to do, why, then, the negligent failure on the part of the engineer would have given them the right to recover, because it would have been wrong in the railroad company to have neglected to see the signal. It would have been a breach of the contract which it had with the people generally, and any failure to perform that contract would have entitled the plaintiffs to at least nominal damages. But the plaintiff has elected not to sue on contract. In this case he cannot recover unless he satisfies you that the engineer saw the signal, recognized it, and intentionally and wilfully failed to obey it."

The Court also charged, upon the measure of damages, that the plaintiffs could not recover any damages for having walked to High Shoals; that they should have waited at Harden Mills for the next train, which passed in the afternoon, and, if they had done so, they could have recovered for the delay and inconvenience in doing so, but that they had shown no actual damages, and the jury, if they found that the engineer had wilfully passed the station and left the plaintiffs at Harden Mills, would give them only nominal damages; and if the engineer did see the signals, but wilfully and intentionally disregarded them and passed on, they might award punitive damages in addition to the nominal damages. The plaintiffs duly excepted to the charge.