Canter v. . Chilton

BrowN, J. Tbe locus in quo is a small tract of land embraced by tbe letters G-E-B-C on map. Tbe plaintiff owns tbe land on east known as Beeson lands and defendant tbe lands known as tbe McKinney lands on tbe west. The plaintiff claims that tbe true division line is tbe dotted line G to E, and defendant claims it is tbe solid line 0 to B. *408 Tbe defendant excepts to tbe testimony of witness Wall, wbo testified to tbe declarations of Louis Key and Enoch Johnson to tbe effect that tbe hickory and poplar marked tbe corner of tbe Beeson land. Tbe witness testified that Key and Johnson were dead and that tbe poplar was Louis Key’s and tbe McKinney corner. It appears that tbe declarants bad no interest in tbe land and that their declarations were made long before this controversy arose in 1911. Tbe witness further testified that be saw Enoch Johnson point out tbe poplar and that be said it was tbe corner of tbe Beeson land and Key’s and McKinney’s corner. Tbe evidence is clearly competent under numerous rulings of this Court. Halstead v. Mullen, 93 N. C., 252; Sullivan v. Blount, 165 N. C., 7. Tbe motion to nonsuit was properly overruled. There is evidence tending to prove that tbe plaintiff and those under whom be claims have been in actual possession of tbe land described in tbe complaint under color of title for more than thirty years. Tbe evidence of their possession is full and consists of unequivocal acts of ownership testified to by witnesses Hill and Wall. This is sufficient evidence to prove title out of tbe State, although the introduction of tbe Sboeber grant does that. In our opinion there is evidence sufficient to show that it covers tbe land claimed by plaintiff. Tbe defendant excepts to tbe following instruction: “Tbe plaintiff contends that if you take tbe defendant’s own evidence, be began to clear it in 1903, and that be did not get bis deed until 1905, and that acts of possession that be performed and tbe dominion or possession that be exercised over tbe land prior to tbe date of this deed in 1905; that be was there under nobody; that be was not there under color of title, but that bis color of title began in him when be got bis deed and tbe court charges you that this is true; that bis color of title began when be got bis deed.” This instruction is correct so far as it applies to tbe evidence in this case. It is familiar law that color of title is given by descents cast and by judgments and decrees, as well as by deeds and other proper writings. 1 Cyc., 1083, 1100. An entry under partition proceedings constitutes good color. Smith v. Tew, 127 N. C., 299; Bynum v. Thompson, 25 N. C., 579. So an entry upon and taking possession of land under a judicial decree is good color and this is generally true, although tbe decree is irregular or even void. 1 Cyc., 1100, and notes. Tbe defendant claims title to tbe McKinney land under a sale for partition made in 1902 and confirmed in 1903. Tbe deed by tbe commissioners to Chilton was executed 6 March, 1905. Tbe defendant entered October, 1903. Tbe defendant’s color'would begin to take effect at time of bis entry and possession but for tbe fact that tbe petition is not in *409 evidence and tbe order of sale and confirmation contains no description of any land. There is nothing in the record purporting to describe any land claimed by defendant except the deed of 1905. While a judicial sale and the proceedings authorizing it are color of title, it must be shown that they cover and include the land upon which the entry is made by such authority. An instrument in order to operate as color of title to the claimant thereunder must sufficiently describe the land intended to be conveyed. 1 Cyc., 1085. The judge was, therefore, correct in his instruction, because no paper of any kind antecedent to the deed containing any description of the land had been introduced by defendant. Barker v. R. R., 125 N. C., 596; 1 R. C. L., 713. The fact is the question of color of title does not arise upon the facts of this case so far as defendant is concerned. In any view of the evidence, if believed, the plaintiff has shown title to the Canter or Beeson lands. The defendant claims nothing more than the adjoining tract, known as the McKinney land. The only controversy arises out of the location of the dividing line between the two tracts. The real dispute was as to the proper location of the hickory and poplar corner, the defendant claiming that the corner was on the bank of the branch. The land actually in dispute is that land embraced in the boundary between the corner as claimed by the plaintiffs and the corner as claimed by the defendant. The jury appear to have settled the matter by adopting the plaintiff’s contention. Upon a review of the record, we find No error.