Caldwell Land & Lumber Co. v. Cloyd

AlleN, J. Tbe introduction of tbe grants from tbe State and tbe mesne conveyances to tbe plaintiff, witb evidence tending to prove that tbe grants and conveyances covered tbe land in controversy, made out a prima facie title in fav.or of tbe plaintiff (Mobley v. Griffin, 104 N. C., 112), and to meet tbis case of tbe plaintiff tbe defendant relied, among other things, upon an adverse possession under color of title. Tbe deed of 1833, under which tbe defendant claims, is not, in our opinion, fraudulent upon its face, and was properly admitted in evidence, but there is no evidence of title, in tbe grantor in that deed, and nothing connecting tbe deed witb any other title,- and it could therefore have no legal effect except as color of title. < A deed which is merely color, of title professes to pass tbe title, but does not do so ( Williams v. Scott, 122 N. C., 550), and can only become effective as title when there is an adverse possession under it for tbe period prescribed by statute, under some conditions seven years, and others twenty-one years. Hamilton v. Icard, 114 N. C., 536. Applying these principles, which are too well settled to require tbe citation of authority in their support, tbe charge of bis Honor is clearly erroneous, because of bis failure to incorporate in tbe instruction tbe necessary element of an adverse possession. He, .in effect, charged tbe jury that if Silas Coffey, a son of 'William Coffey, built on tbe land in 1858 or 1859, and bad tbe 'lines run and marked, that tbis would'put tbe title in him, which would descend to bis children; and tbis is not true, unless there was an adverse possession for tbe time required by statute. If tbe bouse was built, and tbe lines marked, these would be circumstances tending to prove adverse possession, but not conclusive evidence of tbe fact, nor that tbe possession continued during tbe statutory period. Tbe whole charge, of bis Honor is not in tbe record, and we cannot see that tbis error was corrected, and it is upon tbe most material question before tbe jury. . *598 Ve are also of opinion that the lease from the plaintiff to the defendant is competent as an admission of his title, and a circumstance tending to rébut the claim of adverse possession. New trial.