Utley v. Wilmington & Weldon Railroad

MoNtgomeby, J.: The defendant company on the trial below made numerous exceptions, but in the argument here it abandoned them all except the second and third, which are in substance as follows: “2. Because Judge Hoke (at a previous term) upon objection by plaintiff refused to submit an issue upon the Statute of Limitations, although asked to do so by defendant. 3. Because Judge Hoke held that the deed to the plaintiff from T. S. Lutterloh, administrator and commissioner, dated September 11, 'I860, accompanied by possession, was color of title, although only recorded June 26, 1886, and although the railroad had been constructed across the lot in 1885.” There was no error in the ruling of his Honor upon either of the matters to which those exceptions were made. In the case of Land v. Railroad, 107 N. C., 72, it was decided that the defendant there (the defendant here also) could not avail itself of thepro visions of Section 155, Sub-divisions two and three (Statute of Limitations) of The Oode, in actions like this, on account of peculiar features in its charter. The plaintiff, to show title to the land, offered in evidence a deed as color of title which was executed to herself by T. S. Lutterloh on September 11, 1860, and which had been accompanied by the possession of the plaintiff or tenant since its execution, but which had never been registered until after the railroad had been constructed across the *724 land in 1885. The deed was admitted by the court as color of title, and the plaintiff filed the second exception. This deed, accompanied as it was with the possession as above set out, was color of title, notwithstanding the Act of 1885, Ch. 147. Avent v. Arrington, 105 N. C., 377. No Error.