Ennis v. . Ennis

ClakesoN, J. The plaintiffs present the question: “Whether or not a deed from a father to a son, setting out in the face of the deed as consideration, the obligation of the son to institute and finance a suit in the father’s name, is void by reason of the violation of the law of champerty and maintenance.” It may be noted that the consideration is to “prose *323 cute” a suit for the recovery of the land and also the further consideration of “love and affection,” and the land is deeded subject to a life estate of the grantor, father, and his wife Catherine. This interesting question we think unnecessary for a decision of the action. The admissions in the record disclose: “After the death of A. J. Ennis the defendant, W. V. Ennis, entered into the possession of said lands and held the same continuously, adversely, under said deed, and under known and visible boundaries up to the present time. Catherine Ennis, wife of A. J. Ennis, died in the early part of the year 1916. At the time of his death the said A. J. Ennis left surviving him certain of the plaintiffs and ancestors of the plaintiffs, as his only heirs at law, all of whom were at that time over 21 years of age, and under no disability. This suit was started on 26 November, 1927, more than eleven years after the death of A. J. Ennis, the grantor in said deed.” The defendants in their answer set up as a bar to the action: “That the plaintiffs’ cause of action, if any they had, arose,and accrued more than seven years prior to the commencement of this action, and the defendants expressly plead the seven-year statute of limitations in bar of their recovery; the defendant, W, V. Ennis, having been in possession of said lands under known and visible metes and bounds and occupied same adversely to the world.” C. S., 428, is as follows: “When a person or those under whom he claims is and has been in possession of any real property," under known and visible lines and boundaries and under colorable title, for seven years, no entry shall be made or action sustained against such possessor by a person having any right or title to the same, except during the seven years next after his right or title has descended or accrued, who in default of suing within that time shall be excluded from any claim thereafter made; and such possession, so held, is a perpetual bar against all persons not under disability.” Color of title is defined by Hoke., J., in Smith v. Proctor, 139 N. C., at p. 324: “Is a paper-writing (usually a deed) which professes and appears to pass the title, but fails to do so.” A deed to which the privy examination of the married woman is not taken is color of title. Norwood v. Totten, 166 N. C., p. 648, and cases cited. Barbee v. Bumpass, 191 N. C., 521; Booth v. Hairston, 193 N. C., 278. In Garner v. Horner, 191 N. C., at p. 540, it is held: “Failure to comply with C. S., 2515, renders a deed void, although it is good as color of title. Best v. Utley, 189 N. C., 361”; Whitten v. Peace, 188 N. C., 298. “Adverse possession, which will ripen a defective title, must be of a character to subject the occupant to action.” Smith v. Proctor, supra, at pp. 324-25. *324 It is admitted that the parties, claimants, were sui juris. They could have brought an action against W. V. Ennis, who was in possession “under known and visible lines and boundaries,” within the seven years, but they failed to do so. We have held that a married woman’s deed, without privy examination or failure to comply with C. S., 2515, although void, is color of title. Under the definition given of color of title, conceding but not deciding that the deed “professes and appears to pass the title, but fails to do so,” yet it is color of title. It was on record and the plaintiffs had notice of it. Under the facts and circumstances of this case the plea of seven years statute of limitations is a bar to the action. Dill Corporation v. Downs, ante, 189. For the reasons given the judgment is Affirmed.