Gore v. McPherson

Allen, J. When his Honor told the jury that the only question for them to decide was whether the grant and deeds under which the plaintiff claimed covered the land in controversy, he, in effect, withdrew the consideration of the deed under which the defendant claimed as color of title, and the evidence of adverse possession, which he had offered, and in this there was error. It is true, it was said in Austen v. Staten, 126 N. C., 783, which was affirmed in Lindsey v. Beaman, 128 N. C., 189, that an unregistered deed is not, since the Connor Act of 1885, color of title, but in the subsequent cases of Collins v. Davis, 132 [645] N. C., 111, and Janney v. Robbins, 141 N. C., 406, this language was restricted to grantees from a common grantor. In the Janney case, Justice Hoke, speaking for the Court, said: “In Austen v. Staten the plaintiff claimed under a deed to himself from IT. W. Staten, and two others,' dated 31 March, 1896, registered the same day. The defendant claimed under a deed to himself from the same parties, dated 31 December, 1887, registered 31 May, 1897. It will be noted that there both parties claimed from the same grantor, and the plaintiff’s deed, 'though dated nine years or more later than the defendant’s, had been registered more than a year prior to the defendant’s deed. There were questions of fraud involved in the case, in no way material to the point now considered. By the express provisions of the registration act, the plaintiff on the record and face of the papers had the superior right, because his deed had been first registered. Defendant then took the position that though his deed, by virtue of the registration act, was avoided as against plaintiff, yet the same was good as color of title, and proposed to maintain his title by showing occupation under his unregistered deed for seven years. The Court held that to allow this would be £in effect to destroy chapter T47, Laws 1885, and this we cannot do.’ Whatever might be the position of the Court if this were an open question, we think it clear that the principle there announced must be confined to the facts of the case to which it was then applied, and does not extend to a claim by adverse possession held continually for the requisite time under deeds foreign to the true title or entirely independent of the title under which plaintiff makes his claim. As to such deeds and claimants, our present registration law does not, and does not intend to, modify or interfere with the doctrine of maturing title by adverse occupation as heretofore expounded and applied by the decisions of this Court.” The deed being color of title, the evidence of the defendant as to the boundaries of the several tracts described, and of his possession, was-competent. If, however, the defendant claimed under no deed, it was admitted that title was out of the State, and he offered evidence [646] of an adverse possession for more than twenty years. His testimony was not always as specific as might be desired, but when it is remembered that he can do little more than write his name, and that he was stopped every time he attempted to describe his boundaries, it was as definite as could be expected under the circumstances. It was in evidence that he claimed up to the lines of the 335 acres, and he attempted to describe the lines, saying there were chops and blazes on them; that he had lived on the land sixty-five years and had planted it in corn and cotton, and had worked the turpentine and had cut cross-ties; that he and his father had been in possession to the lines he had described, and he offered to prove that when he was a small boy he saw a surveyor run the lines and mark them by chopping and blazing trees and establishing corners covering the 335 aeres, which was clearly competent. As the evidence now stands, the plaintiff has established a ■prima facie title, an,d the defendant is not entitled to the benefits of a common survey provided for in chapter 35 of Battle’s Revisal, but he has the right to have his evidence of title by adverse possession, whether with or without color, considered by a 'jury. New trial.