Johnson v. Farlow

Full title: DEN ON DEMISE OF CLEMENT JOHNSON v. JAMES FARLOW

Court: Supreme Court of North Carolina

Date published: Dec 1, 1851

35 N.C. 84 (N.C. 1851)

Opinion

(December Term, 1851.)

1. Where A. conveyed land to B., and subsequently remained in the actual adverse possession for more than seven years: Held, that A. could not recover without showing some color of title acquired after his conveyance to B., and that his possession was under that colorable title.

2. If A. could have shown that his colorable title and adverse possession commenced after his deed to B., that deed would not have estopped him, because the title so claimed would not have been inconsistent with that he conveyed to B.

APPEAL from Ellis, J., at Fall Term, 1851, of RANDOLPH.

Gilmer, Miller, and Morehead for plaintiff.

Mendenhall for defendant.

Ejectment. Plaintiff and defendant both claimed under one McCracken. Plaintiff showed a deed from McCracken to himself for the premises in question. Defendant relied upon a title subsequently acquired by McCracken to the premises named in plaintiff's deed, by virtue of seven years open and adverse possession, accompanied with a color of title, which colorable deed he held and claimed under when he conveyed to the plaintiff.

It was in evidence that in the year ____ McCracken acquired a good title by deed to the premises; that subsequently he conveyed them by deed to plaintiff's lessor, and afterwards remained in possession, claiming and using the land as his own for more than seven years, when he conveyed by deed of bargain and sale to one Smith and others, who regularly and successively conveyed to the defendant. And the question was whether McCracken could acquire title by a seven years possession under color of title held by him before and at the time he conveyed to plaintiff's lessor; and upon this question the court was (85) of opinion with the plaintiff, for the reason that whatever color of title McCracken had when he conveyed to plaintiff's lessor was transferred by that conveyance, and because he was estopped to claim against his own deed.

There was a verdict for the plaintiff. Rule for a new trial was granted and discharged, when the defendant appealed to the Supreme Court.

PEARSON, J.

It is entirely clear that the plaintiff was entitled to recover. McCracken, after his deed to the lessor, had no color of title, and the adverse possession which he held was "naked." It is absurd to suppose that the deed under which he had originally acquired the land could serve his purpose as color of title after he had passed all of his estate, interest, and claim under it to the lessor. Color of title is something which purports to give title, but he had nothing of the kind. The deed to him was functus officio, except as one of the mesne conveyances of the lessor. If McCracken had taken a deed from a third person, that would have been color of title, and seven years adverse possession under it would, in the language of the cases, "have ripened it into a perfect title," thus originating which did not exist at the date of his deed, for the averment of this new title would not be inconsistent with the admission which he was bound to make, that his deed had passed the title to the lessor. He might well be heard to say, "I admit that I passed the title to you by my deed, but I have since a new title, which had no existence at the time, and which, of course, I did not profess to pass to you."

PER CURIAM. Affirmed.

Cited: Everett v. Smith, 44 N.C. 306; Reynolds v. Cathens, 50 N.C. 439; Eddleman v. Carpenter, 52 N.C. 619; Bickett v. Nash, 101 N.C. 583; Hallyburton v. Slagle, 132 N.C. 950; Wilson v. Brown, 134 N.C. 404; Call v. Dancy, 144 N.C. 497; Weston v. Lumber Co., 162 N.C. 200; Brown v. Brown, 168 N.C. 15 Grimes v. Andrews, 170 N.C. 524; Shuler v. Lumber Co., 180 N.C. 650.

Dist.: Weil v. Uzzell, 92 N.C. 518; Cuthrell v. Hawkins, 98 N.C. 206

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