Opinion
May Term, 1819.
From Northampton.
Colour of title. A Sheriff's deed, which recites the execution under which the lands in dispute were sold, as having been tested and signed by the deputy clerk, shall enure as colour of title. For although the Constitution declares, that all writs shall bear teste and be signed by the clerks of the respective courts, yet a writ of execution is not necessarily void because it bears teste and is signed by a deputy clerk; because the act of 1977, ch. 2, sec. 95, provides that in the event of the death of the principal clerk, the deputy shall sue out writs and other process.
William Jones, being seised of the lands in dispute, made his last will, duly executed to pass his real estates, and therein devised as follows, "I lend unto my son Richard Jones, during his natural life, and during his wife Sarah Jones's widowhood, all my lands lying on the north side of Burwell Gilliam's spring branch, and on the north side of the north prong of Canoe creek; and if the said Richard Jones should die without lawful issue, I give the above mentioned tract of land unto my grandson, James Johnston, to him and his heirs." The testator died in 1784, and Richard Jones, the devisee, took possession of the lands, and continued in possession until the summer of 1804, when Richard Putney, junior, recovered a judgment against said Richard Jones, in Northampton County Court, for l73, 18 4, and costs of suit; an execution was issued thereon, directed to the Sheriff of Northampton, commanding him that of the goods and chattels, lands and tenements of said Richard Jones, he cause to be made the said debt and costs. This execution was levied on the lands in dispute, and at the sale, Richard Putney, senior, the Defendant, became the purchaser. The Sheriff executed to him a deed for the lands, and he entered and took possession, and hath retained possession ever since. Richard Jones, the devisee, died in 1812, intestate, and the lessors of the Plaintiff were his issue, and (563) only heirs at law.
Mordecai, for the Plaintiff.
At the time the execution issued, Eaton Haynes was the clerk of Northampton County Court, and Richard W. Freear was his deputy. The execution was tested by Richard W. Freear, "deputy clerk," and signed by him as deputy clerk. The Sheriff's deed recited the execution as "tested by Richard W. Freear, deputy clerk." The questions made upon the trial of the case were, 1st. Whether Richard Jones took an estate for life, or in fee, under the will? and 2d. Whether, if he took an estate in fee, the title was divested out of him and vested in the Defendant, by virtue of his possession and the colour of title accompanying it? The case was sent by consent to this Court.
HALL AND MURPHEY, (who sat for Judge HENDERSON), Judges, declined giving any opinion upon the first question made in this case. Upon the second question, they were of opinion that the Sheriff's deed to Putney was colour of title, and he having had seven years possession under it, the right of entry in the lessors of the Plaintiff was barred.
The questions arising in this case are, whether Richard Jones acquired a fee simple in the land under the will of his father, William Jones; and if he did, then whether the title was divested out of him and vested in the Defendant by virtue of his possession and the colour, of title accompanying it. It is impossible to read the will, and to doubt that the intention of the testator was to give to Richard Jones an estate for his life only. It is equally clear that he intended no benefit to be enjoyed under the devise to his grandson, James Johnson, as long as there (567) were any issue of Richard Jones remaining. This was the general intent, to which the other, the particular, intent, must give way, where it is impossible to reconcile them. That cannot be done in this case, for the issue of Richard Jones can only take by a descendible estate being vested in their ancestor; and in giving this construction to the will, the Court do no more than the testator himself would probably have done, had he been aware that his general object could not have been attained, without giving up his particular intent. If the issue were held to take by purchase, then, upon the death of one, his share would go over to James Johnston; which certainly was not intended by the testator. This consideration, when coupled with the act of 1784, ch. 22, shews clearly that Richard Jones was tenant in fee simple of the land sued for.
The objection made to the colour of title set up by the Defendant is, that the Sheriff's deed recites the execution under which the land was sold, as having been signed by the deputy clerk, and being, therefore, void upon the face of it, could not ensure as colour of title. One general ground, on which it has been held that a colour of title is necessary, where a party relies upon the statute of limitations is, that the act did not intend to protect those who knowingly took possession of another's lands, and sought to acquire a title by continuing a trespasser for seven years. Whether that principle be correct, or whether a person can in any case fortify his possession by a colour of title, which purports on its face, that the alienor had no right to convey the land, I leave as questions to be settled as they arise. But I think it may be affirmed, without hazard, that a deed may operate as colour of title, which does not necessarily purport the want of authority in the seller to convey, or which may in truth be consistent with such an authority. A man purchasing at a Sheriff's sale, under an execution issuing from his own judgment, may be thought prima facie to have reasonable ground to believe that the Sheriff has a right to sell; and this presumption ought to remain, at least, until he is instructed (568) by the Sheriff's deed, that the authority to make the sale was void under all its circumstances. If any case can be stated, wherein the execution might be signed by the deputy clerk, it may be intended that the purchaser believed that case to have happened, when he received a deed from the Sheriff. It makes no difference, that it now appears to the Court, that such a case had not happened, for the enquiry turns not upon the fact, but upon the purchaser's belief. Such a case is provided for by Laws 1777, ch. 2, Sec. 95, and there is nothing to bring home to the purchaser, a knowledge that the principal clerk was alive at the issuing of the execution. This case, therefore, is not to be distinguished from that of a person, who enters upon the possession of land, believing that he has a right to do so; and as he claims under a deed, which, for anything appearing to the contrary, announced to him the rightful exercise of an authority in the Sheriff to sell, it must amount to a colour of title. Upon both grounds, therefore, I think there ought to be judgment for the Defendant. (569)