Smith v. Tew.

Eaircloth, 0. J. This is an action of ejectment. The plaintiffs claim under a grant from the State to Neill Purcell, in 1771, and mesne conveyances. In a deed from Draughan to W. T. Smith two lines were omitted, as plaintiffs claim, .by mistake. They introduced a surveyor, who testified that in running this deed, “there were along the lines marks on all the lines of the Purcell 200 acres, corresponding to the age of the grant, and that, in his opinion, as an expert, the 200 acres were correctly located, leading to a well-known corner, * * * and that the proper location of this deed was as claimed by the plaintiffs, and the calls would cover the land in dispute.” Another witness gave similar evidence. The defendants excepted to the foregoing evidence. The defendants introduced a grant from the State, in 1897, for twenty-eight acres included in the Purcell grant, according to the marked trees and corners referred to by the sur *300 veyor, and not included by tbe course and distance expressed in tbe deed. We are relieved from remarking on tbe above matters by another view presented by tbe record. In 1866 tbe heirs, and those claiming under them, of W. T. Smith, who claimed under tbe Purcell grant, bad partition of said Smith land, and tbe lands were divided, and tbe report of tbe commissioners was confirmed by tbe Court and recorded. In that proceeding one lot was allotted to Julia Williams, and it covers tbe land now in dispute. J. L. Smith, for tbe plaintiffs, testified: “It (tbe lot) fell to my sister, Julia Williams, in tbe division of my father’s estate. She bad turpentine boxes cut on part of it, and worked it, and cut waste timber on it from the time it fell to her to within four or five years. Part of it is in round pine now. Work was done on tbe plantation in dispute. It was in her possession, and-those who claim under her, continuously for all this time, and taxes were regularly paid on it.” His Honor instructed tbe jury that, if they believed tbe evidence, they ought to answer the first issue, “Tes.” The defendants excepted to tbe admission of tbe partition proceeding as evidence, on.the ground that plaintiffs bad shown no title' to tbe land, and that “such attempted division does not create a color of title in plaintiffs, and especially when plaintiffs have shown no possession or acts of ownership over tbe same.” His Honor was of opinion that tbe partition record was color of title, and submitted tbe evidence to tbe jury to find tbe facts. Tbe ■question was directly decided in Bynum v. Thompson, 25 N. C., 578, where the Oourt held that possession under partition proceeding was taken under a permanent, written, and recorded muniment of title, and constitutes color of title, as much as if tbe parties bad made deeds to each one severally for bis share. Tbe plaintiff’s possession, then, for more than *301 thirty years, is a perpetual bar against the entry of all persons (Code, sec. 141), subject to secs. 148-150, Code. There were verdict and judgment for the plaintiffs. No error. Affirmed.