Norwood v. Totten
| Decision Date | 30 September 1914 |
| Docket Number | 147. |
| Citation | 82 S.E. 951,166 N.C. 648 |
| Parties | NORWOOD ET AL. v. TOTTEN ET AL. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Chatham County; Peebles, Judge.
Action of partition by C. N. Norwood and others against John Totten and others. From a judgment for plaintiffs, defendants appeal. Affirmed.
Where a wife died having had no children, her husband is not entitled to hold her land as tenant by curtesy.
A. C Ray, of Pittsboro, and Maness & Carver, of Concord, for appellants.
R. H Hayes, of Pittsboro, for appellees.
Frances A. D. Norwood, who was the second wife of Mebane A. J Norwood, on October 11, 1905, executed a deed to the premises to her husband, whose heirs at law are the plaintiffs. Her privy examination was not taken. She died about a month thereafter, having no issue born. The defendants are her heirs at law. The jury find, under proper instructions, that said husband and his children by the first wife have been in adverse possession under said deed more than seven years. This deed was offered merely as color of title, and the court properly held that it was sufficient for the purpose.
Judge Henderson's definition of color of title, in Tate v. Southard, 10 N.C. 121, 14 Am. Dec. 578, is:
"A writing, upon its face professing to pass title, but which does not do it, either from a want of title in the person making it, or the defective mode of conveyance used."
He added:
"It must not be plainly and obviously defective, so much so that no man of ordinary capacity could be misled by it."
Judge Gaston's definition of color of title is to be found in Dobson v. Murphy, 18 N.C. 586, as follows:
"Some written document of title, professing to pass the land, and one not so obviously defective that it could not have misled a man of ordinary capacity."
This has been approved in Ellington v. Ellington, 103 N.C. 54, 9 S.E. 208, Avent v. Arrington, 105 N.C. 390, 10 S.E. 991, Keener v. Goodson, 89 N.C. 277, and other cases.
The definition by Judge Hoke in Smith v. Proctor, 139 N.C. 324, 51 S.E. 892, 2 L. R. A. (N. S.) 172, is that:
"Color of title is a paper writing (usually a deed) which professes and appears to pass the title, but fails to do so."
This appears to us to be the best and clearest definition of the three. Applying that to this deed, the judge was correct in holding the deed to be color of title. In Pearse v. Owens, 3 N. C. 234, it was held that a deed from husband and wife, to which her private examination had not been taken and which, therefore, was not valid, was color of title. This was cited with approval in McConnell v. McConnell, 64 N.C. 342, and is quoted in Perry v. Perry, 99 N.C. 273, 6 S.E. 86. In Ellington v. Ellington, 103 N.C. 58, 9 S.E. 208, Smith, C.J., also holds that a deed from husband and wife, to which the privy examination of the wife has not been taken, is color of title sufficient to ripen title under adverse possession.
In Smith v. Allen, 112 N.C. 226, 16 S.E. 932, it is held, citing Perry v. Perry, supra, and other cases, that a deed to which the privy examination of the married woman is not taken is color of title. In Greenleaf v. Bartlett, 146 N.C. 495, 60 S.E. 419, 14 L. R. A. (N. S.) 660, Connor, J., in reviewing the authorities, quotes with approval the above cases of Pearse v. Owens and Perry v. Perry, that a "deed conveying the real estate of a married woman, without private examination, is color of title."
It may here be noted that the requirement of the private examination of a married woman to any conveyance was long ago abolished in England and in nearly all the states of this Union including our adjacent states of South Carolina, Georgia, Alabama, Tennessee, Kentucky, West Virginia, Maryland, and Virginia. Besides North Carolina there are only four other states in the Union retaining such requirement--Arkansas, Delaware, Florida, and Texas, 1 A. & E. Enc. 522, 523. In many states it has been abolished by statute. In others, it has been held that words substantially like those in our Constitution (article 10, § 6), giving a married woman the right to convey her realty "as if she were unmarried," per se prohibit the requirement of a privy examination in her conveyance, and indeed the requirement in our Constitution of a private...
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Ballard v. Ballard
... ... an acknowledgment, and binds not only the parties but also ... their heirs. Norwood v. Totten, 166 N.C. 648, 82 ... S.E. 951; 1 C.J.S., Acknowledgments, s 12. Moreover, ... [55 S.E.2d 322.] ... an unacknowledged deed bars the ... ...
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McClure v. Crow
... ... S.) 172, it was held that a tax deed conveying the ... interest of a life tenant is not color of title against the ... remaindermen; in Norwood v. Totten, 166 N.C. 648, 82 ... S.E. 951, the defendants were the grantor's heirs; and ... the decision in Lockville Power Corp. v. Carolina Power ... ...
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Capps v. Massey
...of N. C. In Whitten v. Peace, supra, at page 302, 303, of 188 N. C., 124 S.E. 571, 574, we find: "This court has held in Norwood v. Totten, 166 N.C. 649, 82 S.E. 951, that deed executed by a wife conveying land to her husband, void for failure of the probate officer to comply with C. S. § 2......
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Elmore v. Byrd
...Revisal, § 952, and notes), and, further, because the examination of the wife was not made according to Revisal, § 2107. Norwood v. Totten, 166 N.C. 648, 82 S.E. 951. lack of privy examination would, of itself, have invalidated the deed, or made it void as a conveyance of the wife. It is ev......