Demise of Johnson v. Farlow, 35 N.C. 84, 13 Ired. 84 (1851)

Dec. 1851 · Supreme Court of North Carolina

35 N.C. 84, 13 Ired. 84

DEN ON DEMISE OF CLEMENT JOHNSON vs. JAMES FARLOW.

"Wliera A. eonveyed lend to B, and subscquontly remained in the actual ad-verso possession for more tlian seven years; Held, that A could not recover, without showing some color of title, acquired after his conveyance to B, end that his possession was under that colorable title.

If A could have shown that his colorable tide and adverse possession commenced after his deed to B, that deed would not have estopped him : because the title sc claimed would not have been inconsistent with that he eonveyed to B.

Appeal from the Superior Court of Law of Randolph County, at the Fall Term, 1851, his Honor Judge Ellis presiding.

This was an action of ejectment. The plaintiff and defendant both claimed under one McCracken. The plaintiff showed a deed from McCracken to himself for the premises in question. The defendant relied upon a title subsequently acquired by McCracken to the premises, named in the plaintiff’s deed, by virtue of a seven years open and adverse possession, accompanied with a color of title, which colorable deed he held and claimed under, when he conveyed to the plaintiff.

It was in evidence that in the year-McCracken acquired a good title by deed to the premises: that subsequently he conveyed them by deed to the plaintiff’s lessor, and afterwards remained in possession, claiming and using the land ns his own for more than seven years, when he conveyed by deed of bargain and sale to one Smith, and others, who regularly and successively conveyed to the defendant. And the question was whether McCracken could acquire title by a seven years possession, under color of title held by him before, and at the time he conveyed to the plaintiff’s lessor, and upon this question the Court was of opinion with the plaintiff; for the reason, that whatever color of title McCracken had, when he conveyed to the plaintiff’s lessor, was transferred by. that conveyance, and because he was estopped to claim against his own deed.

There was a verdict for the plaintiff. Rule for a new trial was granted and discharged* when the defendant appealed to the Supreme Court.

Gilmer, Miller and Morehead, for the plaintiff.

'Mendenhall, for the defendant.

Pearson, J.

It is entirely clear, that the plaintiff was' entitled to recover. McCracken, after his deed to the lessor, had no color of title, and the adverse possession which he held was “ naked.” It is absurd to suppose, that the deed, under which he had originally acquired the land, could serve his purpose as color of title, after he had passed all of his estate, interest, and claim under it to the lessor. Color of title is something which purports to give title, but he had nothing of the kind. The deed to him was functus officio, except as one of the mesne conveyances of the lessor. If McCracken had taken a deed from a third person, that would have been color oí title, and seven years adverse possession under it would, in the language of the cases, “ have ripened it into a perfect title”, thus originating, which did not exist at the date of his deed, for the averment of this new title, would not be inconsistent with the admission, which he was bound to make, that his deed had passed the title to the lessor. He might well be heard to say, I admit that I passed the title to you by my deed, but I have since a new titlej which had no existence at the time, and which, of course, I did not profess to pass to 3rou;

Per Curiam. Judgment affirmed.