Lofton v. . Barber

Barnhill, J. Plaintiffs make no attack on the mortgage deed from Flowers to Hooker or upon the deed executed in foreclosure thereof other than to assert that they convey at most only an estate for the life of Ned Flowers. They rely primarily upon the contention that the language in the paragraph immediately following the description in the Litchfield deed limits the title conveyed to Ned Flowers to an estate for life and vests title in remainder in them. Ordinarily the intent of the parties as expressed in the deed must prevail and in seeking the intent the deed must be construed by its four corners, taking all of its provisions together. Krites v. Plott, 222 N. C., 679, 24 S. E. (2d), 531. When the language used in the Litchfield deed is so considered it readily appears that Jefferson v. Jefferson, 219 N. C., 333, 13 S. E. (2d), 745, and Krites v. Plott, supra, are distinguishable. In both the Jefferson and the Krites cases, there was language expressly limiting the estate of the first taker and of grant or conveyance to those who claimed title in remainder. Such is not the case here. Whether the absence of such language renders the paragraph relied upon by plaintiffs nugatory and ineffectual we need not now decide, for *484 tbe deed from Collins to Brown, if not a valid conveyance of a fee simple estate, is at least effective as color of title. Want of title in tbe grantor does not nullify tbe effectiveness of a deed as color. Glass v. Shoe Co., 212 N. C., 70, 192 S. E., 899; Dorman v. Goodman, 213 N. C., 406, 196 S. E., 352; Nichols v. York, 219 N. C., 262, 13 S. E. (2d), 565; Berry v. Cedar Works, 184 N. C., 187, 113 S. E., 772; Fisher v. Toxaway, 165 N. C., 663, 81 S. E., 925; Burns v. Stewart, 162 N. C., 360, 78 S. E., 321; Barnett v. Amaker, 198 N. C., 168, 150 S. E., 878. Wben tbe deed is regular upon its face and purports to convey title to tbe land in controversy, it constitutes color of title even tbougb void for matters dehors tbe record. It is immaterial whether tbe conveyance actually passes tbe title. It is sufficient if it appears to do. so. Alsworth v. Cedar Works, 172 N. C., 17, 89 S. E., 1008; Vance v. Guy, 224 N. C., 607, 31 S. E. (2d), 766. So tben tbe seven-year statute, G. S., 1-38, bas no reference to titles good in themselves, but is intended to protect apparent titles void in law. Perry v. Bassenger, 219 N. C., 838, 15 S. E. (2d), 365. Here tbe deed from Collins to Brown is regular upon its face and purports to convey title without limitation, reservation or exception. As such it is at least color of title to tbe entire interest in tbe land it purports to convey. Vance v. Guy, 223 N. C., 409, 27 S. E. (2d), 117. This deed was executed 31 August, 1926. Tbe grantee immediately went into possession and she and those claiming under her have been in tbe exclusive possession thereof since said date, claiming it as their own. So tbe record indicates. Conceding but not deciding that plaintiffs acquired title in remainder under tbe Litchfield deed, their right of action accrued at tbe death of tbe life tenant, 10 November, 1928. Hauser v. Craft, 134 N. C., 319. Yet for “12 or 15 years” they made no inquiry or investigation and they took no action to challenge tbe possession of those claiming under tbe Collins deed until 21 September, 1945. In tbe meantime tbe defendants by their adverse possession under color, if not by their deed, have acquired a title which tbe plaintiffs cannot now assail. But plaintiffs insist that tbe record discloses Collins was a tenant of Ned Flowers, that tbe tenant’s possession is tbe possession of tbe landlord, G. S., 1-43, and that a tenant under lease may not maintain an action against bis landlord involving title during tbe period of lease without first surrendering tbe possession be bas under tbe lease. Tbe rule thus stated is sound in principle and bas always been rigidly enforced in this jurisdiction. Lawrence v. Eller, 169 N. C., 211, 85 S. E., 291. Tbe position does not obtain, however, where after renting tbe title of tbe landlord bas terminated or bas been transferred either to a third *485 person or the tenant himself, for, under the doctrine as it now prevails, the loyalty required is to the title, not to the person of the landlord. There must be a precedent surrender of possession only when the tenant seeks to assert a title adverse to that of the landlord or to assume an attitude of hostility to his title or claim of title. 32 Am. Jur., Landlord and Tenant, sec. 114, 115, 117; Lawrence v. Eller, supra,; Murphy v. Taylor, 214 N. C., 393, 199 S. E., 382; Insurance Co. v. Totten, 203 N. C., 431, 166 S. E., 316; Hargrove v. Cox, 180 N. C., 360, 104 S. E., 757; Abbott v. Cromartie, 72 N. C., 292; Murrell v. Roberts, 33 N. C., 424. Thus the doctrine has no application here. Those claiming under Collins do not assert title hostile to that of Ned Flowers, the landlord. They are acknowledging, asserting, and relying upon that title, as acquired in due course by Collins and through Collins by them. The strength of his title is the foundation of their claim. Furthermore, when Collins acquired the title of his landlord his leasehold estate was merged in the greater estate conveyed by his deed. Trust Co. v. Watkins, 215 N. C., 292, 1 S. E. (2d), 853. Thereafter he was under no obligation to recognize his former landlord as such or to surrender possession to him before asserting the title thus acquired. It follows that Collins was not a tenant in the sense that it required twenty years’ possession under color by him and those claiming under him to perfect his title as contended by plaintiffs. In view of our conclusion regarding the Collins deed we need not consider the tax foreclosure deed further than to say that the grantee under an inoperative sheriff’s deed may convey colorable title. Everett v. Smith, 44 N. C., 303; Murrell v. Roberts, supra. The charge of the court below is sustained by the record. Exception thereto is without merit. Hence the judgment must be Affirmed.