Bond v. Beverly

MANNING, J. The title in fee to the land in controversy was undoubtedly, at one time, vested in Lawrence Askew; it was — 60 — divested by a deed of tbe Sheriff of Hertford County to John A. Vann, on 5 April, 1810, this deed being made pursuant to a sale by the sheriff under an execution issued on a judgment against Askew. On 1 November, 1871, John A. Vann conveyed the lands to the plaintiffs; thus they became the owners of it in fee simple; and, as the legal title draws to it the possession, the plaintiffs, nothing else appearing, would be entitled to recover the land from the defendants. The defendants, however, to avoid a recovery by the plaintiffs, show: 1. The death of Lawrence Askew in 1884, his will appointing Slaughter and Willoughby executors, directing them to sell certain named tracts. of land and all other lands not otherwise mentioned.. 2. A public sale by the executors of the land in controversy to S. S. Harrell, and a deed to him by the executors therefor, dated 7 June, 1886. 8. A deed from Harrell to Benjamin Beverly, dated 22 December, 1890, purporting to convey to him and his heirs “his interest in about one-half of a piece of land, etc.” (describing the land in controversy). 4. The adverse and uninterrupted possession of Beverly from that date, to wit, 22 December, 1890. 5. A similar deed to Whitmel Young of the same date and in the same words. 6. The written agreement between Beverly and Young, establishing the dividing line between them, dated 30 March, 1901. It will, therefore, be seen that the defense is rested upon two grounds: First, that the deed from Harrell to Beverly is, itself, color of title, and the adverse and uninterrupted possession of Beverly, for seven years before this action was begun, under it matured the colorable title into a good title. The plaintiffs reply that this deed of Harrell to Beverly is void for the vagueness and uncertainty of the description and is not good as color of title. Second, that if -the Harrell deed to Beverly is void, then the deed from the executors, Slaughter and Wil» loughby,.to Harrell is color of title, and Beverly having been put into possession of the land by Harrell, without a valid delimitation of the land possessed by him, the possession of Beverly extended to the outer limits of the land described in the deed of the executors to Harrell, which is the locus in quo; and Beverly’s possession for more than seven years before this action was begun, being adverse to all persons except his lessor, Harrell, and being uninterrupted, ripened the colorable title of Harrell, into a good title against the plaintiffs. The plaintiffs reply that nothing short of twenty years’ adverse possession — 61 — would defeat their title, aud that the deed to Harrell, being made by the executors of Askew, who had no title, was not color of title. The result will be the same to the plaintiffs, if either defense is sustained, for in either event they cannot recover. . Passing for the moment the matter offered as the first ground of defense, we will consider the second defense. While it is true, Lawrence Askew had no title to the land in controversy at the time of his death, for the reason it had been divested in the manner hereinbefore stated, yet his executors undertook to sell it as his property, and did convey it to Harrell by a deed fully sufficient in form to pass the title in fee. In section 780, Sedg. and Wait on the Trial of Title to Land, many instances are enumerated of deeds held to be color of title, including the following: a deed -made by an administrator with the will annexed, though no power of sale was given by the will, and no sale had been ordered by the. court; a deed of a grantor, purporting to convey as an administrator, under a special act,of the Legislature, which act was unconstitutional and void; a paper-writing purporting to be a will, proved before the proper tribunal by the oath of one witness only. These instances are approved by the decisions of this Court. McConnell v. McConnell, 64 N. C., 342; Taylor v. Smith, 121 N. C., 76; Britton v. Ruffin, 122 N. C., 113; Smith v. Allen, 112 N. C., 223; Mfg. Co. v. Brooks, 106 N. C., 107; McFarland v. Cornwell, 151 N. C., 428; Ellington v. Ellington, 103 N. C., 54, where other instances are given from the decisions of this Court. We see nothing to prevent the deed executed by the executors from being color of title. An analysis of the definition of the color of title by Henderson, J., in Tate v. Southard, 10 N. C., 119, will make this clear. Said that learned judge: “Color'of title may be defined to be a writing, upon its face professing to pass title, but which does not do it, either from a want of title in the person making it or the defective mode of conveyance which is used; and it would seem that it must be so obviously defective that no man of ordinary capacity could be misled by it.” This definition is approved in other decisions, and is in substantial agreement with Judge Gaston’s definition in Dobson v. Murphy, 18 N. C., 586, and with Judge Hoke’s in Smith v. Proctor, 139 N. C., 314. If there was a want of title in the executors, still their deed, being fully sufficient in form to pass the fee, and conveying it, would be color of title. The very term imports that the true title is not passed; if it were, the doctrine of color of title would not be applicable. . Under the facts agreed, it does not appear that either the plaintiffs or Harrell, or any person claiming under either of — 62 — them, were in tbe actual possession of the locus in quo from 1886 to 1890; therefore the legal possession continued in the plaintiffs as the holders of the superior title, and so continued until actual entry by any adverse claimant. This adverse entry occurred on 22 December, 1890, when Harrell put Beverly, the ancestor of the defendants, and one Young, into the possession of the land and they took possession of it. Since then this possession has been under a claim of title adverse, continuous, and there being no delimitation of their possession, then to the outer boundaries of the land described in the deed to Harrell, which embraces the entire locus in quo. Ruffin v. Overby, 105 N. C., 85, and cases cited in annotated edition. But the plaintiffs contend that Beverly and Young entered under a paper-writing purporting to be deeds, but which are void as deeds because of the vague and uncertain description, and they cannot tack their adverse possession 'to Harrell’s color-able title and mature it into a. good title. Passing for the moment the alleged want of description in the instruments executed by Harrell to Beverly and Young, as not material to the ground of defense now under consideration, we think, under the decisions of this Court and the doctrine stated by text-books of recognized authority, the defendants can rely, to perfect their title, upon the colorable title in Harrell, their lessor, their entry and claim of title under his deed, and their adverse and continuous possession for the statutory time, and thereby ripen their imperfect title into a good title. In Brown v. Brown, 106 N. C., 451, this Court said: “A vendee in possession under a contract of purchase is in privity with his vendor, and is entitled to have the time when he held possession under his vendor added to that after receiving his deed, in determining whether colorable title was matured into a perfect title by possession. The possession of the plaintiff under contract for title was, up to the time of the execution of the contract and taking of the deed, the possession of their vendors, and inured to the benefit of the vendees just as if they were tenants of the particular tract contracted to be sold; and after the deed to them, the possession under color continued.” Neal v. Nelson, 117 N. C., 393. It is likewise held in Lane v. Edmonston, 23 N. C., 152; Allen v. Taylor, 96 N. C., 37; Jones v. Boyd, 80 N. C., 258, and in other cases decided by this Court, that one let into possession of land under a contract of sale is a tenant at will of the vendor, and that the principle that a- lessee cannot dispute the title of his lessor extends to him. In 24 Cyc., 1040, citing Bay St. Louis v. Hancock County, 80 Miss., 364, it is stated that one holding under a void sale is a tenant at will of his vendor. — 63 — In McNeeley v. Langan, 22 Ohio St., 32, tbe Supreme Court says: “Tbe mode adopted for tbe transfer of tbe possession may give rise to questions between tbe parties to tbe transfer; but, as respects tbe right of third persons against whom tbe possession is adversely held, it seems to us immaterial if successive transfers of possession were in fact made, whether such transfers were effected by will, by deed, or by mere agreement, either written or verbal.” Tbe attempted conveyances by Harrell to Beverly and Toung, though we may treat them as void, as deeds, in determining tbe question we are now considering, clearly establish tbe privity between them and Harrell, and their possession, or even, perhaps, tbe possession of either of them, being adverse as to tbe plaintiffs and all others except their lessor, continuous and notorious, for seven years before action begun, inured to tbe benefit of Harrell’s title and matured this colorable title into a good title. To repel tbe effect of tbe adverse possession, tbe plaintiffs say, and it is so stated in tbe facts agreed: “Tbe plaintiff Bettie J. Newsome married J. S. Bond, 12 July, 1883, and has since her marriage been under coverture; Levinia R. married, first, Hosea Baker, 29 September, 1886; Baker died in 1897, and she married "W. R. Hughes, 7 July, 1899.” This action was begun 7 December, 1908. The act of 1899, cb. 78, secs. 2 and 3 (now sec. 363, Rev. 1905), declares: “In any action in which tbe defense of adverse possession is relied upon, tbe time computed as constituting such adverse possession shall not include any possession bad against a feme covert during coverture, prior to 13 February, 1899.” It is clear that this act repealed tbe disability of coverture since 13 February, 1899, and it has so been decided by this Court. Norcum v. Savage, 140 N. C., 472. So that tbe coverture of tbe feme plaintiffs was no bar to tbe running of tbe seven years’ statute, and their right of entry and title were defeated before this action was commenced. It would seem to be clear that Harrell, after bis deed was registered, and up to 22 December, 1890, was subject to be sued by tbe plaintiffs to have bis deed' canceled as a cloud upon their title; and after 22 December, 1890, when be took actual possession by bis tenants, Beverly and Young, to an action of ejectment. On tbe first ground of defense, to wit, that tbe paper-writing from Harrell to Beverly is itself color of title, we have serious doubts, and are inclined to agree with tbe plaintiffs, that tbe description is too vague and uncertain. Cathey v. Lumber Co., — 64 — 151 N. C., 592, and cases therein cited. But we do not think it necessary to 'determine this question, in view of our conclusion upon the second ground of defense. After carefully considering the record and the brief of the learned counsel of’ the plaintiffs, in our opinion the defendants were entitled to judgment upon the agreed facts, and the judgment entered by his Honor for the plaintiffs is erroneous, and is Reversed.