Seals v. Seals

• Decision Date: 22 April 1914
• Docket Number: 445.
• Citation: 81 S.E. 613
• Parties: 165 N.C. 409, Am.Ann.Cas. 1915D,134 v. SEALS ET AL. SEALS ET AL.
• Court: North Carolina Supreme Court

81 S.E. 613

165 N.C. 409, Am.Ann.Cas. 1915D,134

SEALS ET AL. v. SEALS ET AL.

No. 445.

Supreme Court of North Carolina

April 22, 1914

Appeal from Superior Court, Richmond County; Adams, Judge.

Action by Elizabeth Seals and others against Alex. Seals and others. Judgment for plaintiffs and defendants appeal. Reversed.

This is an action to recover the possession of 287 acres of land. Plaintiffs claim the land as the widow and heirs at law of Travis Seals. Defendant is the brother of Travis Seals, who has since died. The defendant thus states his contentions in his brief: "There are two causes of action alleged in the complaint; the first being in the nature of an action of ejectment, and the second for the surrender and cancellation of a deed made by the plaintiff Elizabeth Seals to Alexander Seals on the 21st day of April, 1893, which deed conveyed, or purported to convey, the land described in the complaint. It is the contention of the defendants tat William Seals bought the land in controversy from Nathan Walters in 1856, and borrowed $200 of the purchase money from his son, Travis Seals, and to secure this $200 had the deed for the land made to Travis Seals; that in the fall of 1857 Travis Seals, in whose name said deed was made, demanded the $200 of William Seals; that William Seals paid to Travis Seals said amount and instead of Travis Seals executing a deed to William Seals for the land, he delivered to him the original deed made to himself, and which he had held as security, and promised to convey this land to him thereafter by deed; that William Seals went into the possession of this land when he purchased it from Walters, and remained in possession until the time of his death in 1872, holding the land as his own. In 1866 or 1867 William Seals agreed with Alexander Seals verbally that he would give him the tract of land upon the condition that he would stay with him and take care of him the rest of his life. Alexander Seals complied with this request, and after his father's death in 1872, he took charge of the land as his own, and has remained in possession of the same adversely to the present time. Travis Seals, under whom the plaintiffs claim, has never been in possession of said land at any time. For the purpose of perfecting his paper title, the defendant Alexander Seals on the 21st day of April, 1893, secured a deed for said land from the wife of Travis Seals, Travis Seals being at that time in the State Hospital at Morganton. Elizabeth Seals executed the deed, and the same was duly recorded in the office of the register of deeds for Richmond county, and the defendant Alexander Seals has remained in the possession of the land under this deed since that time. The defendant further contends that, even if said deed had been procured by fraud of the defendant, as alleged in the complaint, it would still be color of title as against Elizabeth Seals from the time of its execution, and against the other plaintiffs from the time of the death of Travis Seals; and as more than seven years had elapsed since the death of Travis Seals and before the institution of this action, the possession of said land by the defendant Alexander Seals would ripen his title as against the heirs at law of Travis Seals. And for the same reason would ripen his title as against the plaintiff, Elizabeth Seals." The jury found that the deed from Elizabeth Seals to defendant was procured by false and fraudulent representations, and that plaintiffs are the owners of the land and entitled to the possession thereof, but giving no damages.

J. P Cameron and Lowdermilk & Dockery, all of Rockingham, for appellants.

Walter H. Neal, of Laurinburg, for appellees.

WALKER J.

We need consider only two questions.

First. In order to show the adverse possession of his father William Seals, under whom he claims, the defendant proposed to prove by a witness, Harris Seals, who is a brother of Travis Seals and defendant, being the son of William Seals, the transaction between Travis Seals and William Seals in regard to the payment of the $200, the surrender of the deed from Nathan Walters, and the promise of Travis Seals to convey the land by deed to William Seals. The court excluded this testimony upon the ground that it was a transaction or communication between the witness and a party deceased, within the prohibition of Revisal, § 1631. This ruling was erroneous. While the transaction was of the nature described by the judge, all such transactions are not excluded by that section of the Revisal. The witness must testify "in his own behalf" against the opposite party, who claims under the deceased person, that is, adversely to his own interest. The statute so declares in substance, and it has been so held by this Court. Bunn v. Todd, 107 N.C. 266, 11 S.E. 1043; Tredwell v. Graham, 88 N.C. 208.

In Bunn v. Todd, supra, it is said that the following persons are disqualified: (1) Parties to the action; (2) persons interested in the event of the action; (3) persons through or under whom those mentioned in the first two clauses derive their title or interest. It is then added: "A witness, although belonging to one of these three classes, is incompetent only in the following cases: Where he testifies in behalf of himself, or the person succeeding to his title or interest, against the representative of a deceased person, or committee of a lunatic, or any one deriving title or interest through them, as to a personal transaction or communication between the witness and the person since deceased or lunatic."

And in Tredwell v. Graham, supra, it was said that, "notwithstanding the statute, a party may be called to testify touching a transaction of the opposite party, when it is against his own interest."

In Weinstein v. Patrick, 75 N.C. 344, Justice Reade said that "it would seem that there could be no objection against allowing" a witness "to testify against his own interest." It is not within the spirit or letter of the statute, as his own interest is supposed to be a sufficient protection for the opposite party against false or fabricated testimony. This appears to be well settled by the cases. Harris Seals, the witness, proposed to testify against his own interest, as his brother would get the land and exclude him, if the jury should be influenced by his testimony. The evidence of this transaction was relevant to the controversy, as it tended to show that William Seals, notwithstanding that the legal title to the land was in Travis Seals by virtue of Nathan Walters' deed, was claiming the land in his own right, in opposition to Travis Seals, and that defendant was claiming under him in the same way.

Second. We think the court erred in holding that the deed of Elizabeth Seals to defendant was not color of title. It can make no difference that the deed, claimed to be color, does not in fact pass the title. It is sufficient if, on its face it professes to do so, and defendant is in possession, claiming bona fide under it adversely. Color of title is that which in appearance is title, but which in reality is not title. No exclusive importance is to be attached to the ground of the invalidity of a colorable or apparent title, if the entry or claim has been made under it in good faith. A claim to property under a conveyance, however inadequate to carry the true title, and however incompetent the grantor may have been to convey, is one under color of title, which will draw...