Kivett v. . Gardner

Hoke, J. Color of title has been defined with us as “a paper-writing, usually a deed, which professes to pass the title, but fails to do so” (Knight v. Roper Lumber Co., 168 N. C., 452), and we are of opinion that the instrument under which defendant claims comes chiefly within the words and meaning of the definition. It is urged for plaintiff: (1) That a tax deed, void for noncompliance with the statute, may not constitute color. (2) That in any event the present instrument is not properly color,, for lack of a seal. But the first position has been *80 resolved against the plaintiff in Greenleaf v. Bartlett, 146 N. C., 495, and the second in Avent v. Arrington, 105 N. C., pp. 377-392, cited, with approval, at the present term, in Knight’s case, supra, and in Gann v. Spencer, 167 N. C., 429. True, we have held in several cases coming under the former law that when a county bid in land it acquired only the right to foreclose ( Wilcox v. Leach, 123 N. C., 74), and that when it attempted to convey the title without foreclosure, the conveyance was void (Smith v. Smith, 150 N. C., 81), but none of these decisions affect the doctrine of adverse possession under color of title where, as in this case, it is made to appear that the sheriff has executed a written instrument purporting to convey the land in fee, and the grantee, claiming as owner under it, has taken and held possession adversely for more than seven and even more than ten years, according to the testimony. Regarding defendant as a purchaser under an irregular sale for taxes, it would seem that three years adverse occupation, under a sheriff’s deed, is all that would be required. Revisal, secs. 2909 and 395; Layman v. Hunter, 123 N. C., 508. It may be well to note that, under the present law, Revisal, sec. 2905, a county purchasing land for taxes may take a deed therefor without resorting to foreclosure (McNair v. Boyd, 163 N. C., 478), and this case holds, too, that it is only when the owner has been in possession that the ordinary statutes of limitations do not operate against him. We find no error to plaintiff’s prejudice in the proceedings below, and the judgment in defendant’s favor is affirmed. No error.