Brittain v. Correll

WELLS, Judge. Petitioners contend the court erred in denying their motions for a directed verdict, judgment notwithstanding the verdict, and a new trial on respondents’ claim for title to the disputed property under the doctrine of adverse possession under color of title. They argue that respondents did not contend or present any evidence tending to show that they possessed any document which could constitute color of title, that respondents showed only that they had a valid deed to their tract of land, and that therefore the evidence was insufficient to support a verdict for respondents on this claim. As stated by our Supreme Court in Price v. Tomrich Corp., 275 N.C. 385, 167 S.E. 2d 766 (1969): Color of title is generally defined as a written instrument which purports to convey the land described therein but fails to do so because of a want of title in the grantor or some defect in the mode of conveyance .... When the description in a deed embraces not only land owned by the grantor but also contiguous land which he does not own, the instrument conveys the property to which grantor had title and constitutes color of title to that portion which he does not own. [Citations omitted.] A valid deed may serve as color of title. Id. See also Hensley v. Ramsey, 283 N.C. 714, 199 S.E. 2d 1 (1973). We conclude that the deed offered into evidence by respondents which purported to convey to them the property in dispute between the lines A to B and X to Y as part of the tract of land conveyed to them by the Rhoneys is sufficient to constitute color of title. Thus, the evidence is not fatally deficient as argued by petitioners and we find no error in the denial of their motions. Petitioners further contend the trial court erred by instructing the jury on the doctrine of adverse possession under color of title when the evidence did not show that respondents’ possession of the property was hostile to petitioners or under color of title. For the reasons just stated, we conclude that sufficient evidence of color of title was presented to justify the instruction given. Petitioners argue that the evidence shows that respondents’ possession was not hostile because it shows that respondents [575] made the improvements on the disputed property under the belief that they owned the property. It is an established rule in this State that where one possesses property without color of title under the mistaken belief that the property is his, the possession is not adverse since there is no intent to claim the property adverse to its true owner. Hetrick, Webster’s Real Estate Law in North Carolina §§ 289 & 293 (rev. ed. 1981). See, e.g., Gibson v. Dudley, 233 N.C. 255, 63 S.E. 2d 630 (1951). This rule does not apply, however, where possession is under color of title. Hetrick, supra, ch. 14 nn. 19 & 62. Application of this rule in color of title cases would virtually extinguish the laws permitting the acquisition of title by adverse possession under color of title since in almost all such cases the claimant possessed the property under the mistaken belief that he had good title to it. Id. The trial court in instructing the jury on the hostility of possession required in order to ripen title by adverse possession followed N.C.P.I. — Civil 820.10. The instruction given was an accurate statement of the law, see State v. Brooks, 275 N.C. 175, 166 S.E. 2d 70 (1969); Dulin v. Faires, 266 N.C. 257, 145 S.E. 2d 873 (1966), and was warranted by the evidence which clearly tends to show that respondents’ possession of the disputed property was such as to give notice that respondents claimed the exclusive right to the property. We therefore find no error in the court’s instruction on, or submission of, the issue of respondents’ adverse possession under color of title. Because we so hold, we need not address respondents’ cross-assignment of error. No error. Judges WHICHARD and PHILLIPS concur.