Moore v. . Johnson

Walker, J., after stating the case: We do not see why the charge of the court was not correct under the rule, now well established by the decisions of this Court, that where the parties to the action claim from a common source of title, in this case James Calloway, the true title and right to recover depends, not upon color of title and adverse possession under it, but must be determined by reference to the date of registration *270 of the deeds of tie respective parties. It was ield in Austin v. Staten, 126 N. C., 783, tiat in suei a case “an unregistered deed does not constitute color of title,” since tie passage of tie Acts of 1885, ch. 147 (Revisal of 1905, sec. 980). Tiis view of tie law was adopted in Janney v. Robbins, 141 N. C., 400, tie Court following tie decisions in Austin v. Staten, supra; Lindsay v. Beaman, 128 N. C., 189; Collins v. Davis, 132 N. C., 106, and Laton v. Crowell, 136 N. C., 380. Justice Hoke in Janney v. Robbins, referring to wiat iad been decided in Austin v. Staten, and its legal effect upon titles as a construction of tie Acts of 1885, ch. 147, Revisal, sec. 980, said: “Tie plaintiff, in Austin v. Staten, claimed under a deed to iimself from H. W. Staten and two otiers, dated 31 March, 1896, registered tie same day. Tie defendant claimed under a deed to iimself from tie same parties, dated 31 December, 1887, registered 31 May, 1897. It will be noted tiat tiere boti parties claimed from tie same grantor, and tie plaintiff’s deed, thougi dated nine years or more later tian tie defendant’s, iad been registered more tian a year prior to tie defendant’s deed. Tiere were questions of fraud involved in tie case, in no way material to tie point now considered. By tie express 'provisions of tie registration act, tie plaintiff on tie record and face of tie papers iad tie superior rigit, because iis deed iad been first registered. Defendant tien took the position tiat though iis deed, by virtue of tie registration act, was avoided as against plaintiff, yet tie same was good as color of title, and proposed to maintain iis title by showing occupation under iis unregistered deed for seven years. Tie court ield that to allow tiis would be in effect to destroy chapter 147, Laws 1885, and tiis we cannot do.” It will be observed tiat tie facts thus recited as those in Austin v. Staten are substantially the same as those we have before us in tiis record. Tie Court, both in Janney v. Robbins and Collins v. Davis, expresses a very serious doubt as to whether tie Legislature intended to effect such a radical change, by tie Act of 1885, in tie law of color of title, as formerly declared, but tiis doubt was finally settled in Collins v. Davis, supra, by tie use of tiis language: “We therefore hold tiat where one makes a deed *271 for land for a valuable consideration, and tbe grantee fails to register it, but enters into possession thereunder and remains thereon for more than seven years, such deed does not constitute color of title and bar the entry of a grantee in a subsequent deed for a valuable consideration who has duly registered his deed. Except in eases coming within this rule, the rights acquired by adverse possession for - seven years under color of title are not disturbed or affected by the act of 1885. To this extent we affirm the law as laid down in Austin v. Staten, supra. It is in harmony with the legislative purpose and policy incorporated into our laws by the act of 1885. The act intended to make secure and give notice of the condition of titles, and thereby prevent the evils existing under the law prior thereto, and must be construed with reference to this evil and in furtherance of the remedy,” which was afterwards approved in Janney v. Robbins, supra. The Court did say in both of these cases that the doctrine of color of title is not modified except to the extent stated, that is, where the parties claim from the same source of title and in cases coming strictly within the principle, and that when they do not so claim, but derive their alleged right from independent sources, the doctrine of color of title, with respect to an unregistered deed, still exists. The plaintiff argues, though, in his brief, that the parties in this case do not claim from a common source, and he seems to think that because the plaintiff introduced one grant from the State to Richard Parker for the 80 acres, and defendant a grant to James Fletcher for the 150 acres, both of which covered the disputed land, they claimed by independent titles. But not so, for the true title afterwards was acquired, or is presumed to have been acquired, by James Calloway, who thereby became, if we may so speak by analogy to a descent, the propositus of both parties, as they both introduced mesne conveyances to themselves from him and those under whom they claimed. The grants are of no importance, as there was no evidence of any better title than that presumed to have been held by Calloway, with which plaintiff connected himself. It was upon the idea that, by the introduction of the grants it was shown that the parties claimed under different titles, *272 and not from a common source, that plaintiff requested the instruction which was refused, and properly so, and his exceptions to the charge are all based upon the same erroneous view of the law. This is not a question of the lappage of two grants, though they may actually interfere with or overlap each other. The true title, so far as appears, came finally into James Callo-way, and we start with him and are not required to consider the Parker or Fletcher grants. It may be added, that neither of the parties is connected by mesne conveyances or otherwise with the Fletcher grant. The rulings of the court were all correct, unless it be that the plaintiff’s deed was color of title, and we have held that it was not.. The case was tried upon the theory that the pivotal question involved was whether the plaintiff’s deed, not having been registered until the year 1909, was color of title, the defendant’shaving been registered before that year and before the bringing of this suit, and upon this theory we decide it. There is no merit in the other question. A quitclaim deed from James Anderson to Wilson Moore, who conveyed to the plaintiff, can play no part in the case, as it appears that, at the time it was made Anderson had parted with his title, and the joinder in the deed of Mary Johnson, alone or without her husband, was void as to her, she being a married woman, and the joinder of her husband, with acknowledgment of both and her privy examination, being necessary to give efficacy to the deed. But plaintiff’s counsel admits that this, the second, exception becomes immaterial 'and the ruling unprejudicial in view of our holding as to the other assignment of error. The act of 1885 was intended, of course, to protect only bona fide purchasers for value and without notice, but there is no question of that sort in this ease. No .notice, however full and formal, will supply the place of registration. Robinson v. Willoughby, 70 N. C., 358; Blevins v. Barker, 75 N. C., 436; Quinnerly v. Quinnerly, 114 N. C., 145, and cases cited. Both parties appear to' have acted in good faith in buying the land, and-to have given value therefor, and the plaintiff loses unfortunately by his neglect to have his deed duly registered. There was no request for instructions, except as indicated. The only prayer *273 raises the same question practically as the exception to the charge. We have considered the questions discussed in the brief of appellant, covered by his assignments of error, and have discovered no error in the trial. No error.