Farabow v. . Perry

DeNNY, J. Lucy Hardy, widow of Fred Hardy, remained in possession of the lands of which her husband died seized and possessed, and in which lands she was entitled to dower, but which dower was never set apart to her. While she was in possession, as the widow of Fred Hardy, she executed a mortgage deed on the premises, defaulted in the payment thereof, and at the foreclosure sale became the purchaser of the property. Does the deed from her mortgagees to her constitute color of title? In our opinion a widow, while in possession of the lands of which her husband died seized and possessed, and in which lands she is entitled to *25 dower, but whieb dower was never set apart to ber, cannot perfect title to tbe premises in berself by claiming adverse possession under color of title for seven years, where it appears sbe mortgaged tbe premises, intentionally defaulted, and purchased tbe property at ber own mortgagees’ sale in order that sbe might obtain a deed on which sbe could rely as color of title. 2 C. J. S., sec. 170, p. 744; Bell v. Bell, 159 La., 460, 105 So., 509. In this case tbe widow, not having bad dower assigned to ber, bad nothing to convey at tbe time sbe mortgaged tbe premises, and tbe mortgagors bad nothing to foreclose at tbe time of tbe purported foreclosure sale. Tbe mortgagees apparently were tbe agents of tbe mortgagor and entered into tbe arrangement for a foreclosure sale for tbe sole purpose of defrauding tbe heirs of tbe widow’s deceased husband out of their inheritance. Sbe mortgaged tbe premises for $389.75, on April 26, 1929, and paid tbe mortgagees $400.00 for tbe property at tbe foreclosure sale on January 2, 1930. If sbe bad tbe money to purchase tbe property for $400.00 at tbe foreclosure sale, sbe could have paid off tbe indebtedness secured by ber mortgage without foreclosure, and it was ber duty to have done so. “Tbe courts have consistently held that a deed will give color of title so as to permit a plea of tbe Statute of Limitations by tbe grantee, even though the grantor is chargeable with fraud, if tbe grantee accepts tbe deed in good faith without knowledge of tbe fraud. While tbe matter of fraud is thus considered immaterial by some courts, actual fraud is neither sanctioned nor cured by tbe Statute of Limitations.” 1 Am. Jur., sec. 198, p. 903. A party who acts in bad faith is not protected or benefited by tbe statute of limitations. Baker v. Schofield, 243 U. S., 114, 61 Law Ed., 626. Even tborigb it should be conceded that tbe mortgagees’ deed under consideration constituted color of title, we do not think tbe title to tbe land in controversy was perfected in Lucy Hardy, widow of Fred Hardy. There is nothing in this record to indicate that sbe entered into possession under this deed adversely to tbe rightful heirs; but, on tbe contrary, it is admitted that sbe was in possession of tbe lands involved herein after the death of ber husband, on 23 October, 1923, until ber own death, on 22 December, 1939, and that during said period sbe was in tbe peaceable possession of said land, undisturbed by tbe heirs or anyone claiming under them. In Nixon v. Williams, 95 N. C., 103, in discussing tbe possession of tbe widow, tbe Court, speaking through Merrimon, J., said: “Tbe widow entitled to dower remained upon tbe land after tbe death of ber husband, and continued to do so several years, but no dower was ever assigned to ber. Her possession was not adverse to tbe wife of tbe plaintiff, in ber *26 lifetime; indeed, she was in possession under her, and the defendant’s presence did not have the effect to prevent the seizin of the plaintiff’s wife, or his rights as the husband.” The foregoing case was 'cited in Atwell v. Shook, 133 N. C., 381, 45 S. E., 771, and the principle as deduced therefrom stated thusly: “The possession of a widow, to whom no dower has been assigned, is not adverse to the heirs at law of her deceased husband.” Page v. Branch, 97 N. C., 97; Everett v. Newton, 118 N. C., 919, 23 S. E., 961. “In 21 C. J., 942, sec. 74, it is stated: 'If the life tenant purchases . . . the property at a sale to satisfy an encumbrance, he cannot hold such . . . property to his exclusive benefit, but will be deemed to have made the purchase for the benefit of himself and the remainderman or reversioner ... If the life tenant pays more than his proportionate share, he simply becomes a creditor of the estate for that amount.’ Again, on the same page, it is stated: 'Neither a life tenant, nor one claiming under him, who allows property to be sold for taxes, or the satisfaction of an encumbrance, . . . can acquire a title adverse to the remainderman or reversioner by purchasing at the sale.’ Dower is a life estate. Holt v. Lynch, 201 N. C., 404, 160 S. E., 469; Chemical Co. v. Walston, 187 N. C., 817, 123 S. E., 196.” Creech v. Wilder, 212 N. C., 162, 193 S. E., 281. Therefore, if the possession is not adverse, her occupancy for more than twenty years would not have perfected title in her. Likewise, a deed, which ordinarily would be color of title, does not draw to the claimant the protection of the statute of limitations where the requisites of adverse possession are not present. 1 Am. Jur., sec. 196, p. 901. Barbee v. Bumpass, 191 N. C., 521, 137 S. E., 275; Clendenin v. Clendenin, 181 N. C., 465, 107 S. E., 458. A deed procured by a widow, under the circumstances disclosed in this record, where there is no evidence that the character of her possession was in any manner changed thereby, and no evidence of express notice having been given to the rightful heirs of any intention to claim adversely to them, is insufficient to convert the possession of the widow, which is not adverse to the rightful heirs, into possession adverse to them. 2 C. J., sec. 210, p. 124. The judgment of the court below is Affirmed.