Johnson v. McLamb

• Decision Date: 10 January 1958
• Docket Number: No. 528,528
• Citation: 101 S.E.2d 311,247 N.C. 534
• Parties: Hampton JOHNSON and wife, Marie Johnson, v. George E. McLAMB and wife et al.
• Court: North Carolina Supreme Court

Page 311

101 S.E.2d 311

247 N.C. 534

Hampton JOHNSON and wife Marie Johnson, v. George E. McLAMB and wife et al.

No. 528

Supreme Court of North Carolina.

Jan. 10, 1958

N. H. McGeachy, Jr., Willis D. Brown, Faytteville, and I. R. Williams, Dunn, for appellants.

J. R. Barefoot, Benson, for appellees.

JOHNSON, Justice.

At the time of the tax foreclosure, Mary McLamb owned only a one-ninth undivided interest in the lot. She alone was joined as a defendant. The single question here presented is whether the tax foreclosure deed is color of title against the cotenants who were not parties to the foreclosure.

The deed meets all the essential requirements prescribed by the general rules definitive of colorable title. Says Walker, J., in Burns v. Stewart, 162 N.C. 360, 365, 78 S.E. 321, 323: 'Color of title has been variously defined by the courts of this country. It was early held to be any writing which on its face professes to pass a title, but which it fails to do, either from want of title in the person making it, or from the defective mode of conveyance employed; but it must not be so obviously defective as not to mislead a person of ordinary capacity, but not skilled in the law. (Citation of authorities.) The courts have generally concurred in defining it to be that which in appearance is title, but which in reality is not.'

Ordinarily any instrument constitutes color of title if it purports to convey title but is defective or void (First-Citizens Bank & Trust Co. v. Parker, 235 N.C. 326, 69 S.E.2d 841) for matters dehors the record (Lofton v. Barber, 226 N.C. 481, 39 S.E.2d 263), or even if the defects are discoverable from the record. Perry v. Bassenger, 219 N.C. 838, 15 S.E. 2d 365.

True, in this jurisdiction we adhere to a principle, operating as an exception to the general rule, that a deed made by one tenant in common of the entire estate is not sufficient to sever the unity of possession and does not constitute color of title as against the cotenants. The theory of this exception to the general rule is that the grantee of one tenant in common takes only his share and 'steps in his shoes,' becoming a tenant in common in his stead, and that therefore it requires twenty years, rather than seven, adverse possession of the whole, under claim of ownership, to bar entry by the other tenants in common. Cloud v. Webb, 14 N.C. 317; Hicks v. Bullock, 96 N.C. 164, 1 S.E. 629; Breden v. McLaurin, 98 N.C. 307, 4 S.E. 136; Bullin v. Hancock, 138 N.C. 198, 50 S.E. 621; Cooley v. Lee, 170 N.C. 18, 86 S.E. 720; Cox v. Wright, 218 N.C. 342, 11 S.E.2d 158.

In Roper Lumber Co. v. Richmond Cedar Works, 165 N.C. 83, at page 85, 80 S.E. 982, Walker, J., speaking for the Court, said: 'We are aware that this court has held that a deed by one tenant of the entire estate held in common is not sufficient to sever the unity of possession by which they are bound together, and does not constitute color of title, as the grantee of one tenant takes only his share and 'steps into his shoes.' In such case, 20 years of adverse possession, under a claim of sole ownership, is required to bar the entry of the other tenants, under the presumption of an ouster from the beginning raised thereby. (Citation of authorities.) We are not inadvertent to the fact that this state stands alone in the recognition of this principle, the others holding the contrary, that such a deed is good color of title (1 Cyc., 1078, and notes); but it has too long been the settled doctrine of this court to be disturbed at this late day, as it might seriously impair vested rights to do so. It should not, though, be carried beyond the necessities of the particular class of cases to which it has been applied, but confined strictly within its proper limits; otherwise we may destroy titles by a too close attention to technical considerations growing out of this particular relation of tenants in common, and more so, we think, than is required to preserve their rights. This view has, within recent years, been thoroughly sanctioned by the court.'

It thus appears to be the established policy of the Court to keep the exception strictly confined to the single class of cases to which it applies, i. e., cases involving in each instance a deed made by a tenant in common purporting to convey not only his interest in the land but also the interest of his cotenants.

The exception has been restricted so rigidly that it has no application to deeds based on judicial sales for partition. In this connection our decisions are to the effect that where in a judicial proceeding to sell the common estate of tenants in common for partition, and less than the whole number of tenants are joined as parties, a deed made under order of the court purporting to convey the entire estate is like a deed of a stranger to the title, and therefore when registered, seven years adverse possession thereunder by the grantee or those claiming under him by registered deeds (Justice v. Mitchell, 238 N.C. 364, 78 S.E 2d 122) will ripen title and bar the cotenants who were not parties to the proceeding. McCulloh v. Daniel, 102 N.C. 529, 9 S.E. 413; Amis v. Stephens, 111 N.C. 172, 16 S.E. 17; Roper Lumber Co. v. Richmond Cedar Works, supra, 165 N.C. 83, 80 S.E. 982; Alexander v. Richmond Cedar Works, 177 N.C. 137, 98 S.E. 312; Perry v. Bassenger, supra, 219 N.C. 838, 15 S.E.2d 365.

It appears from the appellants' brief that they are fully advised respecting the general rules which control the doctrine of colorable title. They are here urging the Court to extend the exception to cover tax foreclosures, like this one, where less...