Barrett v. Brewer
| Decision Date | 07 December 1910 |
| Citation | 69 S.E. 614,153 N.C. 547 |
| Parties | BARRETT et al. v. BREWER et al. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Montgomery County; Biggs, Judge.
Action by Maud M. Barrett and others against Frank Brewer and others. Judgment of dismissal, and plaintiffs appeal. Affirmed.
Muniments of title follow the real title and descend to the heir as an incident to the estate, but if there is no estate to descend there can be no muniments and an heir cannot inherit a color of title; it not being a muniment of title, but a mere shadow or pretense thereof.
U. L Spence, for appellants.
R. T Poole and J. A. Spence, for appellees.
Plaintiffs introduced a grant to defendants from the state, dated October 15, 1891, covering the land in controversy; thereby proving that the legal title was in defendants at that time. Plaintiffs attempted to show that they have acquired title since then by adverse possession under color of title for seven years. For this purpose they introduced a deed from G. R. Bryant to Josephine Barrett, dated February 5, 1870, and recorded May 13, 1896, covering the same land. This deed was good color as to the grantee herself had she entered upon and taken possession of the land under it. The evidence is that Josephine Barrett died in 1872, when she was eight years old; that the deed was made to her about two years before she died, and that neither she nor any one for her ever entered upon the land and claimed it for her under this deed. The land was woodland entirely, and Josephine resided 14 miles from it. She was born in 1864 and died eight years later. The plaintiffs claim that they have shown seven years' adverse possession since the date of the grant to defendants, and the "color" they offer is the deed to Josephine Barrett, who was their sister, and whose heirs at law they are.
Inasmuch as their ancestor had no legal title to the land, never was in possession of it, and never claimed it, nor did any one for her, can these plaintiffs be permitted, many years after her death, to enter upon the land without title and offer the deed to their ancestor as good color for their unlawful entry?
As to what constitutes "color of title" and "claim of title" the courts differ in the different states, because it largely depends upon the language of the different statutes. As said by Judge Henderson in Tate v. Southard, color of title is evidently the production of our own country (10 N.C. 120, 14 Am. Dec. 578). The term, "color of title," is not synonymous with "claim of title," as used in the statutes of some states. To constitute color of title there must be a paper title to give color to the adverse possession, whereas a claim of title may be constituted wholly by parol. Hamilton v. Wright, 30 Iowa, 480.
Our statute does not recognize a mere claim of title. It enacts that "when the person in possession of any real property, or those under whom he claims, shall have been possessed of the same, under known and visible lines and boundaries and under colorable title for seven years, no entry shall be made or action sustained," etc. Revisal 1905, § 382. It has long been settled in this state that the colorable title required by the statute must be "a writing upon its face professing to bear title, but which does not do it, either from want of title in the person making it, or the defective mode of conveyance that is used." Tate v. Southard, supra; Williams v. Scott, 122 N.C. 550, 29 S.E. 877.
In this last case it is said: It is plain therefore that plaintiffs cannot set up a "claim of title" under our statute.
This brings us to the inquiry, Is the deed to the ancestor, under which she made no entry or claim to the land, or no one for her, good color for an entry made more than 20 years after her death, by her heirs at law, and after the state had granted the lands to defendants? The reason usually given to support the doctrine of maturing title by adverse possession, under color of title, is that where one, in the exercise of ordinary care, is induced to enter upon and improve land because he has some written evidence of title that would naturally induce a "layman" to believe that it vested in him what is professed to pass, it would be unjust to enforce the right of another who brings no action till the end of the statutory period. Wood on Lim. § 159; Avent v. Arrington, 105 N.C. 387, 10 S.E. 991. In the opinion in that case many cases are cited and quoted from, which seem to indicate that the entry must be made by the person to whom the colorable instrument is made.
In view of the fact that the ancestor to whom the colorable title was made never asserted any claim to the land under it, and these plaintiffs do not take by purchase, they evidently do not come within the reason of the rule, as stated by Mr. Wood, and approved by this court in Avent v. Arrington. When they entered they knew and admit their ancestor had never entered upon the land and had never perfected his colorable title. It is different when the ancestor enters and takes possession under colorable title. At his death the possession is cast by descent upon his heir, who may continue the possession in good faith in himself, and tack it to that of his ancestor's so as to complete the necessary statutory period. Atwell v. Shook, 133 N.C. 391, 45 S.E. 777; Alexander v. Gibbons, 118 N.C. 796, 24 S.E. 748. 54 Am. St. Rep. 757. It is the continuity of possession which gives to the heir the benefit of the entry under color made by his ancestor.
We fail to find any authority for the position that long after the ancestor's death his heir can avail himself of a colorable title, consisting of a paper writing made to his ancestor when the latter either refused or failed to claim any rights under it himself. It would seem more consistent with reason and authority that the entry should be made and claim of title first asserted by the person to whom the colorable instrument was made, and that if he did not see fit to do so in his lifetime, no one can do it after his death under his color.
The grantee in the deed takes by purchase. Her heirs took no interest under the deed. They take by descent from her; therefore, they must show a "descent cast." As their ancestor had no real title to descend, they can only show it by proving her possession and that at her death it was cast upon them, for, as against one showing no title in himself, possession is title. Sherin v. Brackett, 36 Minn. 152, 30 N.W. 551; Sedg. & W. Tr. Title to Land, §§ 717, 718. "A descent cast, where an ancestor is in possession, gives color of title." 3 Wash. Real Prop. 168.
It must be admitted that an heir cannot inherit a color of title, for that is not a muniment of title. It is a mere shadow, a pretense of a title. Muniments of title follow the real title and descend to the heir as an incident to the estate. If there is no estate to descend, there can be no muniments. It is the descent of the possession which gives vitality to the colorable title and which, when continued long enough, constitutes it a muniment of a real title. Without the possession the colorable instrument is but worthless paper. It has been said that color of title must purport to convey title to the claimant thereunder, or to those with whom he is in privity. 1 Cyc. 1085.
This term "privity," when used in connection with color of title, does not mean privity in blood, for a "privy in blood" is defined to be one who derives his title to the property in question by descent. 6 Words & Phrases, 5608. That refers to a real title which can descend, and not to a mere colorable title, for until the ancestor enters and takes possession under his color, he has...
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