Justice v. Mitchell, 161
| Decision Date | 14 October 1953 |
| Docket Number | No. 161,161 |
| Citation | 78 S.E.2d 122,238 N.C. 364 |
| Court | North Carolina Supreme Court |
| Parties | JUSTICE, v. MITCHELL et al. |
J. Carlton Cherry, Ahoskie, and Pritchett & Cooke, Windsor, for plaintiff, appellee.
Jones, Jones & Jones, Winton, and Albion Dunn, Greenville, for defendants, appellants.
The appellant excepts to and assigns as error the instruction given to the jury on the third issue. We concede there is some merit to the exception, since the defendant James R. Mitchell could not have been in possession of the premises in question as a life tenant under the provisions of his mother's will prior to her death on 5 July, 1949. Even so, the facts disclosed on this record require an affirmance of the judgment entered below. An appellant will not be granted a new trial when the error complained of is harmless and another hearing could be of no benefit to him. Booth v. Hairston, 193 N.C. 278, 136 S.E. 879, 57 A.L.R. 1186; Cauble v. Southern Express Co., 182 N.C. 448, 109 S.E. 267.
Conceding that Mollie J. Mitchell signed the deed of gift to James R. Mitchell on 31 December, 1940, and delivered it to him on that date and that he immediately went into possession of the premises described therein, this unregistered deed could not in any event constitute color of title until after the expiration of two years from its date. The deed of gift was valid at the time of its execution and conveyed to the grantee the title to the lands described therein. However, after he failed to register it within two years from the making thereof, as required by G.S. § 47-26, it became void ab initio and title to the premises revested in the grantor. Winstead v. Woolard, 223 N.C. 814, 28 S.E.2d 507; Cutts v. McGhee, 221 N.C. 465, 20 S.E. 2d 376; Allen v. Allen, 209 N.C. 744, 184 S.E. 485; Reeves v. Miller, 209 N.C. 362, 183 S.E. 294; Booth v. Hairston, 195 N.C. 8, 141 S.E. 480; Id., supra.
The contention of the appellant that he was in the adverse possession of the premises conveyed to him under color of title for more than seven years next prior to the institution of this suit, within the meaning of G.S. § 1-38, is untenable.
Color of title is defined in Smith v. Proctor, 139 N.C. 314, 51 S.E. 889, 892, 2 L.R.A.,N.S., 172, as 'a paper writing (usually a deed) which professes and appears to pass the title, but fails to do so.' Seals v. Seals, 165 N.C. 409, 81 S.E. 613; Crocker v. Vann, 192 N.C. 422, 135 S.E. 127; Ennis v. Ennis, 195 N.C. 320, 142 S.E. 8; Glass v. Lynchburg Shoe Co., 212 N.C. 70, 192 S.E. 899; 1 Am.Jur., Adverse Possession, § 190, page 898.
In support of the view that a valid deed is not color of title, Hoke, J., in speaking for this Court in the case of Janney v Robbins, 141 N.C. 400, 53 S.E. 863, 866, said: 'It might well be suggested that in Austin v. Staten [126 N.C. 783, 36 S.E. 388] the unregistered deed relied on as color could not avail for any such purpose, because, until a second deed was executed and registered, the first passed the title, and a deed never operates as color which conveys the real title.' An instrument that passes title is not color of title. 1 Am.Jur., Adverse Possession, § 190, page 898; Collins v. Davis, 132 N.C. 106, 43 S.E. 579, 581. In the last cited case this Court said: 'Where one makes a deed for land for a valuable consideration, and the grantee fails to register it, but enters into possession thereunder and remains therein for more than seven years, such deed does not constitute color of title'.
Adverse possession to ripen into title within seven years must be under color, G.S. § 1-38, otherwise, a period of twenty years is required, G.S. § 1-40. Ward v. Smith, 223 N.C. 141, 25 S.E.2d 463. Even so, in order Lewis v. Covington, 130 N.C. 541, 41 S.E. 677, 678; Price v. Whisnant, 232 N.C. 653, 62 S.E.2d 56. Certainly at no time from 1 January, 1941 until 1 January, 1943 if the defendant james R. Mitchell entered into possession of the premises pursuant to the terms of the deed of gift as he testified he did in the court below, could he have been ejected as a trespasser. However, 'a person originally entering without color of title may on subsequent acquisition of color be deemed to have held adversely under color from the latter date, still his color of title does not relate back to the time of his entry.' 2 C.J.S., Adverse Possession, § 68, page 585.
Ordinarily an unregistered deed is not...
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Price v. Tomrich Corp., 33
...described therein but fails to do so because of a want of title in the grantor or some defect in the mode of conveyance. Justice v. Mitchell, 238 N.C. 364, 78 S.E.2d 122; First-Citizens Bank & Trust Co. v. Parker, 235 N.C. 326, 69 S.E.2d 841; 1 Strong, N.C.Index, Adverse Possession § 15 (19......
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Chisholm v. Hall, 97
...to support an action in ejectment or trespass. That is the test of possession referred to in G.S. §§ 1-38 and 1-40. Justice v. Mitchell, 238 N.C. 364, 78 S.E.2d 122. Defendants had the burden of establishing their affirmative defense, i. e., their allegation of ownership. Wells v. Clayton, ......
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