Justice v. Mitchell , 238 N.C. 364 ( 1953 )

78 S.E.2d 122 (1953) 238 N.C. 364

JUSTICE
v.
MITCHELL et al.

No. 161.

Supreme Court of North Carolina.

October 14, 1953.

J. Carlton Cherry, Ahoskie, and Pritchett & Cooke, Windsor, for plaintiff, appellee.

Jones, Jones & Jones, Winton, and Albion Dunn, Greenville, for defendants, appellants.

DENNY, Justice.

The appellant excepts to and assigns as error the instruction given to the jury on the third issue. We concede there is some merit to the exception, since the defendant James R. Mitchell could not have been in possession of the premises in question as a life tenant under the provisions of his mother's will prior to her death on 5 July, 1949. Even so, the facts disclosed on this record require an affirmance of the judgment entered below. An appellant will not be granted a new trial when the error complained of is harmless and another hearing could be of no benefit to him. Booth v. Hairston, 193 N.C. 278, 136 S.E. 879, 57 A.L.R. 1186; Cauble v. Southern Express Co., 182 N.C. 448, 109 S.E. 267.

Conceding that Mollie J. Mitchell signed the deed of gift to James R. Mitchell on 31 December, 1940, and delivered it to him on that date and that he immediately went into possession of the premises described therein, this unregistered deed could not in any event constitute color of title until after the expiration of two years from its date. The deed of gift was valid at the time of its execution and conveyed to the grantee the title to the lands described therein. However, after he failed to register it within two years from the making thereof, as required by G.S. § 47-26, it became void ab initio and title to the premises revested in the grantor. Winstead v. Woolard, 223 N.C. 814, 28 S.E.2d 507; Cutts v. McGhee, 221 N.C. 465, 20 S.E. 2d 376; Allen v. Allen, 209 N.C. 744, 184 S.E. 485; Reeves v. Miller, 209 N.C. 362, 183 S.E. 294; Booth v. Hairston, 195 N.C. 8, 141 S.E. 480; Id., supra.

The contention of the appellant that he was in the adverse possession of the premises conveyed to him under color of title for more than seven years next prior to the institution of this suit, within the meaning of G.S. § 1-38, is untenable.

Color of title is defined in Smith v. Proctor, 139 N.C. 314, 51 S.E. 889, 892, 2 L.R.A.,N.S., 172, as "a paper writing (usually a deed) which professes and appears to pass the title, but fails to do so." Seals v. Seals, 165 N.C. 409, 81 S.E. 613; Crocker v. Vann, 192 N.C. 422, 135 S.E. 127; Ennis v. Ennis, 195 N.C. 320, 142 S.E. 8; Glass v. Lynchburg Shoe Co., 212 N.C. 70, 192 S.E. 899; 1 Am.Jur., Adverse Possession, § 190, page 898.

In support of the view that a valid deed is not color of title, Hoke, J., in speaking for this Court in the case of Janney v. Robbins, 141 N.C. 400, 53 S.E. 863, 866, said: "It might well be suggested that in Austin v. Staten [126 N.C. 783, 36 S.E. 338] the unregistered deed relied on as color could not avail for any such purpose, because, until a second deed was executed and registered, the first passed the title, and a deed never operates as color which conveys the real title." An instrument that passes title is not color of title. 1 Am.Jur., Adverse Possession, § 190, page 898; Collins v. Davis, 132 N.C. 106, 43 S.E. 579, 581. In the last cited case this Court said: "Where one makes a deed for land for a valuable consideration, and the grantee fails to register it, but enters into possession thereunder and remains therein for more than seven years, such deed does not constitute color of title".

Adverse possession to ripen into title within seven years must be under color, G.S. § 1-38, otherwise, a period of twenty years is required, G.S. § 1-40. Ward v. Smith, 223 N.C. 141, 25 S.E.2d 463. Even so, in order "to ripen a colorable title into a good title there must be such possession and acts of dominion by the colorable claimant as will make him liable to an action of ejectment. This is said to be the test." Lewis v. Covington, 130 N.C. 541, 41 S.E. 677, 678; Price v. Whisnant, 232 N.C. 653, 62 S.E.2d 56. Certainly at no time from 1 January, 1941 until 1 January, 1943, if the defendant James R. Mitchell entered into possession of the premises pursuant to the terms of the deed of gift as he testified he did in the court below, could he have been ejected as a trespasser. However, "a person originally entering without color of title may on subsequent acquisition of color be deemed to have held adversely under color from the latter date, still his color of title does not relate back to the time of his entry." 2 C.J.S., Adverse Possession, § 68, page 585.

Ordinarily an unregistered deed is not color of title, except as between the original parties. Johnson v. Fry, 195 N.C. 832, 143 S.E. 857. Cf. Eaton v. Doub, 190 N.C. 14, 128 S.E. 494, 40 A.L.R. 273. Therefore, conceding, but not deciding, that the unregistered deed of gift after it became void was color of title as between the grantor and the grantee from 1 January, 1943 until the death of the grantor on 5 July, 1949, the period of time was insufficient to ripen title in the defendant James R. Mitchell. Battle v. Battle, 235 N.C. 499, 70 S.E.2d 492. The title to the premises being in Mollie J. Mitchell at the time of her death, passed to her devisees in accord with the provisions of her last will and testament. Battle v. Battle, supra; Brite v. Lynch, 235 N.C. 182, 69 S.E.2d 169; Winstead v. Woolard, supra. Consequently, after the death of Mollie J. Mitchell the possession of the defendant was, as a matter of law, as a life tenant pursuant to the provisions of the will. Being a life tenant under his mother's will, he could not renounce his rights thereunder and agree to become a trespasser in order to ripen title under the deed of gift even after its registration. Winstead v. Woolard, supra; Nixon v. Williams, 95 N.C. 103; Gaylord v. Respass, 92 N.C. 553; Gadsby v. Dyer, 91 N.C. 311. Moreover, if he could do so, the deed of gift in no event could be color of title against the plaintiff, except from and after its registration.

In the trial below we find no prejudicial error.

No Error.