Everett v. Smith

• Citation: 44 N.C. 303
• Court: United States State Supreme Court of North Carolina
• Decision Date: 30 June 1853
• Parties: JOHN EVERETT v. WILLIAM J. SMITH.

44 N.C. 303

JOHN EVERETT

v.WILLIAM J. SMITH.

Supreme Court of North Carolina.

June Term, 1853.

The sheriff sells the lands of A. for taxes, and makes a deed to the purchaser. If this be inoperative, the deed from A's vendor to him would be good color of title, but if the sheriff's deed be operative and pass title, then the deed of A's vendor could not be set up by A. as color of title.

In an action of trespass to land, the defendant can justify upon the ground, that he entered as the servant of one, in whom are the title and right of possession.

(The case of Johnson v. Farlow, 13 Ire. 85, cited and approved.)

THIS was an action of TRESPASS, tried before BATTLE, Judge, at Spring Term, 1852, of Hyde Superior Court. The defendant drew out his pleas at length, justifying the trespass: 1, as servant of the President and Directors of the Literary Board; 2, as servant of the President and Directors, &c. and of others, tenants in common of the premises; 3 and 4, under the sheriff of Hyde.

There was a verdict and judgment for the plaintiff, from which the defendant appealed to the Supreme Court. The facts necessary to the understanding of the opinion of the Court, appear sufficiently stated therein.

Rodman, for the defendant , argued:--

1. After the lapse of 46 years, the Court would be justified in presuming that the taxes were due, and that the survey and plat were made which are recited in the sheriff's deed to Blount. 2 Phil. Ev., Cowen & Hill's notes, 297, 362, 1292, and cases cited. But if these presumptions will not be made,

2. The sheriff's deed to Blount was color of title.

3. The possession held by Blount was sufficient in its nature and duration to perfect the title to all the land embraced in the deed. Rhodes v. Brown, 2 Dev. 195; Clinton v. Herring, 1 Mur. 412; Carson v. Bennet, 1 Dev. & Bat. 546; Tredwell v. Reddick, 1 Ire. 56; Williams v. Buchanan, 1 Ire. 535; Murphy v. Grice, 2 Dev. & Bat. Eq. 199; Bynum v. Thompson, 3 Ire. 578.

See also the Acts of 1798, (2 Laws of N. C., ch. 492, p. 856,) and 1842, ch. 36, and Rev. Stat. ch. 43, sec. 34.

4. The sheriff's deed to Gov. Williams was in all respects regular. Avery v. Rose,, 4 Dev. 549. Some taxes were necessarily due, and it will not be assumed that the sheriff sold for more than was due.

Donnell, contra.

PEARSON, J.

The defendant justifies as the servant of the President and Directors of the Literary Fund of North Carolina, in whom he alleges title; he also justifies as sheriff under the Act of 1842, and makes the same allegation of title in the President and Directors of the Literary Fund.

The question involves the title of the President and Directors of the Literary Fund. They claim an undivided moiety, and if their title be good, it supports the plea.

The land is “swamp land,” and in 1795 was granted to one Hall, (in a grant of 195,000 acres.) The plaintiff was in possession under Hall, and was turned out of possession by the defendant.

In 1800 the land was sold for taxes, and was bought by one John Gray Blount, who took the sheriff's deed. In 1801 it was again sold for taxes, and was bought by one Harris, who took the sheriff's deed. The persons claiming under both Blount and Harris, conveyed an undivided moiety to the President and Directors of the Literary Fund, in consideration of its being drained by that corporation. These are the only two sources of title to which it is necessary to advert.

If the sheriff's deed to Harris conveyed a good title, the question is settled; if it did not convey a good title, then the defendant falls back on the sheriff's deed to Blount; if that deed conveyed a good title to Blount the question is settled; if it did not convey a good title to Blount, then the question will depend upon whether his title has been ripened by adverse possession under color of title.

To prevent unnecessary discussion we will suppose that neither the sheriff's deed to Harris or Blount conveyed a good title, and put our decision on the question--was Blount's title ripened by adverse possession under color of title? We think it was.

As to Blount's possession, we pass by the fact that in 1819, one Hastings took possession of a part of the land under a contract of purchase from Blount, and has continued in possession thereof ever since. We also pass by the fact, that in 1826 one Smith took possession of another part of the land, as a lessee of Blount, and has continued in possession ever since, because it may be that the possession of Hastings was limited to the part he contracted to purchase, and that of Smith to the part covered by his lease, neither of which extend to the locus in quo.

But in 1827, Blount himself took possession of the land and opened a plantation, which he and those claiming under him have been cultivating ever since. It is true the place where Blount first commenced clearing and cultivating was covered by a grant to one Swindle,...