Heirs of Hill v. Heirs of Wilton, 6 N.C. 14, 2 Mur. 14 (1811)

July 1811 · Supreme Court of North Carolina

6 N.C. 14, 2 Mur. 14

The heirs of Hill v. The heirs of Wilton.

From Craven.

Colour of title —A. constituted E, his attorney, “to levy, recover and receive all debts due to him, to take and use all due means for the recovering' of the same; and for recoveries and receipts thereof, to make and execute acquittances and discharges.” B. sold to 0. a tract of land belonging1 to A. and conveyed the same as Attorney of A. C. entered and had seven years possession of the land. Held,

That the deed of H, as attorney of A. although he as attorney had no authority to sell the land, was colour of title, and that seven years' possession under it baited the right of entry of A.

Where a deed is executed, which is afterwards considered as forming only a colour of title, the party executing it must be considered as not having a complete title to the land, which he, by his deed pur» ports to convey.

This rase was sent up to the Supreme Court from the Superior Court of Law for Craven County, upon a rule obtained by Defendants to shew cause why a new trial should not be granted. It was an action of eject» Hient, and the only question was, Whether the following letter of attorney from Peter Dubois to Vincent Aymette, ami the deed from Aymette to Samuel Hill, do not make such a colour of title, tiiat seven years possession under it will give a complete right ?

“ Know all men by' these presents, that I, Peter Dubois, of the county of Bladen, and province of North-Carolina, planter, have constituted, ordained and made, and in my place and stead put, and by these preSents do constitute, ordain and make, and in my place and stead put my beloved friend, Mr. Vincent Aymette, planter, of the same province •and county of Craven, to be my true, sufficient and lawful attorney, for pie and in my name and stead and to my use, to ask, demand, levy, recover and receive of and from all and every person and persons whomsoever the same shall or may concern, all and singular sum and sums of money, debts, goods, wares, merchandize, effects and things whatsoever, and wheresoever they shall and may be found due, owing, payable, belonging and coming unto me the cqnstituent, by any ways or means whatsoever, nothing excepted; giving and granting unto my said attorney,, my whole strength, power and authority in and about the premises; and to take and use all due means, cause and process in the Law for the recovering' of the same ; and of recoveries and receipts thereof, in my name to make, seal and execute, due acquittances and discharges ; and for the premises to appear and the person of me the constituent to represent before any governor, judges, justices, officers, and ministers of the I,aw whatsoever, relating to the premises, with full power to make and substitute one or more attorneys under him mj’ said attorney, and the same again at pleasure to revoke, and generally to say, do, act, transact, determine, accomplish and finish all matters and things whatsoever, relating to the premises, as fully, amply, and effectually, to all intents and purposes, as I the said constituent myself should, ought or might do personally, although the matter should require more special authority than is herein comprised ; I the said constituent ratifying, allowing and holding firm and valid all and whatsoever my said attorney or his substitute shall lawfully do or cause to be done in and about the premises, by virtue of these presents. In witness whereof, I have hereunto set my hand and seal, the fifth day of April, Anno Domini one thousand seven hundred and sixty-four, in the fifth year of his Majesty’s feign.

“PETER DUBOIS, (Seas.)

Signed, sealed and delivered in the presence of

“ Peter Aymette,

his

“ Vhtcbnt t'l Aymette.

mark.

“ October Inferior Court, 1765 — Present His Majesty’s Justices.-*Then was the within power of attorney proved in open Court by the oath of Vincent Aymette, evidence thereto, and ordered to be registered. Teste, PETER CONWAY,' C. I. C.

The deed From Aymette to Samuel Hill was in the following words:

,£ This Indenture, made this 22d day of February, in the year of our Lord one thousand seven hundred and sixty-nine, between Vincent Aymette, sen. being attorney of Peter Dubois, authorised thereto by an instrument bearing date the fifth day of April, in the year of our Lord one thousand seven hundred and sixty-four, both principal and attorney of Craven county, and province of North-Carolina, planter, of the one part, and Samuel Hill, millwright, of the county and province aforesaid, of the other part, witnessed), that the said Vincent Aymette, for and in consideration of the sum of six pounds, five shillings, proclamation money, to him in hand paid by the said Samuel Hill, before the sealing and delivery hereof, well and truly paid, the receipt whereof the said Vincent Aymette doth acknowledge, and hereof doth acquit and discharge the said Samuel Hill, his heirs, executors, administrators, and every of them, by these presents, hath gianted, bargained and sold, and by these presents doth, fully and absolutely grant, bargain and sell and confirm unto tlie said Samuel Hill, and his heirs and assigns, a certain tract or parcel of land, situate and being in Craven county and province aforesaid, on the west side of Ci'ooked Run, he. ginning at Michael Shufus causeway, running thence south TO degrees wost 160 poles to a pine; thence south 20 east 640 poles to a black gum; thence north 20 east 160 poles; thence north 20 west 640 poles to the first station, as by patent granted to Peter Dubois in the year one thousand seven hundred and thirty-eight, reference being had thereto, may more fully appear : To have and to hold the aforesaid 640 acres of land, and every part or parcel thereof, unto the said Samuel Hill, his heirs and assigns forever, to their only proper use and behoof. Further, the said Vincent Aymette, so far as he is authorised by the power of attorney before mentioned, shall at any time, at the request and the proper charge of the aforesaid Samuel Hill, do any other act or assurance that may be requisite in law for the more fully transferring the fee-simple right of the premises aforementioned unto the aforesaid Samuel Hill, his heirs, executors or assigns, and the said Vincent Aymette doth warrant and defend the aforesaid premises from his heirs and every other person, so far as the letter of attorney before mentioned shall authorise him thereto, forever. In witness whereof, the said Vincent Aymette hath hereunto set his hand and seal.

VINCENT AYMETTE, (Seal.)

e< Signed, sealed and delivered in presence of

« Petes. Aymette and Vincent Aymette, jun.5’

STATE OF NORT1I-CAEOLINA, Jones County Court, 1 November Term, 1806.

“ Then was the within deed proved in open Court by'the oath of Samuel M’Daniel, sen, who swore that he was well acquainted with the hand-writing of Peter Aymette, one of the subscribing witnesses to the said deed, and that the name of said Peter Aymette thereunto subscribed as a witness, is in his own proper hand-writing, and that the said Peter Aymette, and also Vincent Aymette, the other subscribing witness, and Vincent Aymette the grantor, are all dead, and that possession of the lands thereby conveyed had gone with such conveyance s whereupon it was ordered that the said deed should be recorded.

(Signed) WILL. ORME, C. C.

“ Registered in the Register’s Office of Jones County, in book G. No. 7, and page 92. JAS. BRYAN, Reg’r.

G-astm, in support of the rule. — The letter of attorney from Dubois to Aymette, in no part authorizes Aymette to sell lands: Hill, the purchaser, had therefore fair notice (hat he was taking a deed from a man who claimed no interest in the lands himself, and who had no power to sell them. A deed that constitutes colour of title. must purport on its face to be made by a person competent in law to convey the lands, and must be received by the bargainee as a good and valid conveyance: the transaction on his part must be honajide. If at the time he re-ccives the deed, he has notice that the title to the lands is not in the bargainor, but in a third person, he commits a frapd in receiving the deed, which fraud vitiates the conveyance, and renders his possession, however long it may be continued, of no avail. In this case, Hill must have known that Aymette had no power to sell the lands, and receiving a deed from him with this knowledge, he was guilty of a fraud which rendered his deed null and void to every intent and purpose.

Harris, contra.

Colour of title is required, 1st. To shew the extent of the possession: 2dly. The estate claimed by the person in possession j and 3dly. To give notoriety to others of his claim. Colour of title is not a good title, otherwise seven years possession under it would not be required to make it good. Any deed, which upon its face purports to be a conveyance from, one man to another, is colour of title $ and it is not necessary that the bargainee should receive it under the belief that he thereby acquired a valid title; for the act of 1715, ch. 27, sec. 2d, considers many deeds as constituting colour of title, which upon their face purport to be made by persons who had no title 5 such as deeds made by “ creditors, executors and administrators, husbands in right of their wives, &c.” Although the second section of this act has been considered as only retrospective in its operation, and the third as prospective, it is certain that the doctrine of colour of title was borrowed from the second section $ and we are to look to that to see what the legislature intended should be such colourable title as will protect a seven years possession of land. It is admitted, that the transaction must be honajide on the part of. the bargainee, and that fraud will vitiate his deed so that it shall not protect his possession. in the present case, there is no ground to presume fraud in Hill : the circumstances of the case shew the fairness of the transaction $ that Aymette believed he had power to sell and convey the lands ; that Hill received the deed under this belief; and as the possession of the land has gone with the deed, it is fair to presume that Dubois himself believed Aymette was empowered, by his letter of attorney, to make the sale and conveyance. Most men, not skilled in the law, would construe this letter of attorney in the same way.

Hah, Judge,

delivered the opinion of the Court:

The case admits that the lessors of the Plaintiff have had seven years possession of the lands in dispute, under Vincent Aymette's deed: that this deed was executed, as its states upon its face, in consequence of a power of attorney given to Aymette by Peter Dubois. It is insisted, that although it is so stated in the deed, yet upon inspecting the power of attorney, it appears ihat no authority is thereby given to sell and convey lands: that as Aymette admits in the deed that he had. no right to the lands himself, and claimed only an authority to sell and convey as aforesaid, his deed to Hill did not amount even to colour of title. It is true that Aymette was not authorised to sell the lands by Dubois’s power of attorney 3 and if the question depended upon “ who had the title at the time of the conveyance,” there could be no doubt. Rut the lessors of the Plaintiff have been in possession for the space of seven years, since that time, under Aymette’s deed, and no good reason appears to the Court why that deed should hot be considered a colour of title. Whenever a deed is executed, which afterwards is considered as forming only a colour of title, the party executing it must be considered as not having a complete title to the land, which he by his deed purports to convey : it is a common thing for a person who sells land, to allege that he has a title to it. by descent, or in some other way or, a's in the present case, that he is empowered to sell it under an authority given to him by the true owner. It is not probable that the purchaser would doubt the truth of this allegation, more in the one case than in the other ; and in either case, when such purchaser remains in possession for the space of seven . years, he ought to be protected. Aymette’s deed is of itself sufficient colour of title, and its validity, in that respect, should not be affected by any contradiction that exists between it and the power of attorney executed by Dubois. The lessors of the Plaintiff stand upon as meritorious ground as if Aymette liad sold the lands in question to Hill as his own.. Let the rule for a new trial be discharged.