Tate v. . Southard , 10 N.C. 119 ( 1824 )

The court instructed the jury that the act of 1791 required a possession of twenty years under known and visible lines and boundaries, and under a color of title; that if they could ascertain from the record produced in evidence that the land in dispute had been sold by the sheriff, that such sale would amount to color of title, and coupled with twenty years possession, under known and visible lines and boundaries, would ripen into a valid title, in which case they ought to find for the plaintiff; but that they must gather the fact of the sale by the sheriff from the record itself, and not from parol evidence.

Verdict for the plaintiff; new trial refused; judgment, and appeal. Color of title, as applicable to the present subject, is evidently the production of our own country. I would not, therefore, go abroad for an explanation. The name, I presume, was taken from what is called giving color in pleading, which is never used in this State, and not often, I believe, in England. The word is not to be found in the act of 1715. It is first used in our act of 1791. Giving color in pleading is giving your adversary a title which is defective, but not so obviously so that it would be apparent to one not skilled in the law. It must be such as would perplex a layman. It, therefore, draws the consideration of the question from the jury (the lay gents) to the court, which is the object of the pleading. I think we should go no further than our act of 1715 — at (121) most, not further than the act of 1791 — on the question we are now investigating. Section 2 of the act of 1715 ratifies and confirms all sales made by creditors, executors or administrators, husbands and their wives, husbands seized in right of their wives, or by indorsement of patents, or otherwise, where the possessor shall have been in possession for seven years. The act of 1791, confirming possession against the State, uses the same phraseology, except that the words, "other colorable title," are substituted for the words "or otherwise, used in the act of 1715. The words, "or otherwise," and "other colorable title," mean title of the like kind. Those mentioned in the act are all written ones; are all such as, upon their face, profess to pass the title; in some of them conveyance issufficient to pass the title, but the defect lies in the want of title in the grantor. In the last instance put, the indorsement of a patent, the conveyance is defective. The defect in that case is not in the want of title in the grantor, but in the defective conveyance which he has used; and if we take the words of the act of 1891, "other colorable title," as an exposition of the words "or otherwise" in the act of 1715, and expound colorable title by what is meant by giving color in pleading, the only case in which I find color of title used anterior to the acts before mentioned, color of title may then 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 that is used; and it would seem under the act of 1791, at least, that it must not be plainly and obviously defective, so much so that no man of ordinary capacity could be misled by it. The color of title set up in this case not being in writing, for he proves the purchase by parol only, wants one of the essentials before mentioned, and is therefore insufficient. If the purchase appeared in the sheriff's return, it would then be necessary to examine whether such a return professed to pass the title. What is said as to what may be the effect of the words, other colorable title, used in the act of 1791, (122) upon the possessions which the act confirms, I beg to be considered as a mere obiter dictum, for that act cannot affect the construction of the act of 1715, which alone we are now considering.

TAYLOR, C. J., and HALL, J., concurred.

Cited: Comrs. v. Duncan, 46 N.C. 241; Kron v. Hinson, 53 N.C. 348;McConnell v. McConnell, 64 N.C. 344; Keener v. Goodson, 89 N.C. 277;Ellington v. Ellington, 103 N.C. 58; Avent v. Arrington, 105 N.C. 390;Williams v. Scott, 122 N.C. 550; Barker v. R. R., 125 N.C. 601;Greenleaf v. Bartlett, 146 N.C. 498; Bond v. Beverly, 152 N.C. 61;Barrett v. Brewer, 153 N.C. 549; Ipock v. Gaskins, 161 N.C. 684; Burnsv. Stewart, 162 N.C. 365; Lumber Co. v. Pearce, 166 N.C. 590; Norwoodv. Totten, 166 N.C. 649; Green v. Spencer, 167 N.C. 431; Graves v.Causey, 170 N.C. 176; Alsworth v. Cedar Works, 172 N.C. 22.