Neal v. Nelson

117 N.C. 393

Opinion

Avery, J.:

The plaintiff introduced in support of the deed made by the Sheriff to W. A. Lash, Sr., on January 1st, 1878, but bearing daté November 2nd, 1869, 11 am execution and Sheriff’s return showing the 'sale of the lands a/nd pxorchase by” said Lash, “on the day this deed bears date.” The irresistible inference growing out of this statement is that the return identified “the lands1'1 in controversy and showed that W. A. Lash, Sr., bought. ‘'The presumption is that public officers do as the law and their duty require them to do.” Lawson P. Ev.,'p. 58 (Eule 14). The law required the Sheriff to make due return setting forth the amount of the bid and the fact of the payment of the money by the purchaser, and courts will act on the assumption that the return was true and that it reported the receipt of the money. Hiatt v. Simpson, 13 Ired., 72; Lyle v. Silver, 103 N. C., 261. It has been held that where the Sheriff sells under execution, nothing more appearing, it wdll be presumed that he complied with the law by making due advertisement. Jackson v. Shafer, 11 Johns, 317; Lawson P. Ev., p. 56. Upon the same principle, until the contrary is shown, the law infers that he collected the amount of the bid and reported the fact with 'the name of the purchaser, which appeared on the return, as it was his dnfy to do. "We have been led into this discussion probably by the omission to bring the execution and return as apart of the transcript, though it was suggested on the argument that there had been some delay in making up a statement on account of the loss of court records and papers. If this return sufficiently described the land, as it is admitted it did, and evidenced — as we must assume it did — the payment of the purchase money, which was the amount offered as a bid, then it identified the subject matter and defined the nature, extent and foundation of the claim, under which the agents and tenants of the purchaser entered November 2nd, 1869, and held undisputed possession from that date until December 14, 1877 — more than seven years. If therefore the deed executed by Sheriff Gentry lo W. A. Lash, Sr., after his death was ineffectual as a conveyance of the legal title and insufficient as color of title, "W. A. Lash nevertheless acquired title before his death on the 27th of December, 1877, if the return of the Sheriff constituted color. ¥e are aware that in Dobson v. Murphy, Judge Gaston delivering the opinion of the Court, it was held that such a return upon a fi. fa. was not color of title; but it was conceded that Ruebin, Chief Justice, yielded to the majority of the Court with great hesitation. In Tate v. Southard, 1 Hawks, Judge Henderson delivering the opinion of the Court, it was decided that the return of a sheriff upon a fieri facias was colorable title. "When the same case came before the Court a second time it appeared that an attachment had been levied on the land, the return on the writ being “attached one piece of land, that Richardson bought of Kennedy,” and that a writ of y?./a. afterward- issued with no other or better description of the land and was returned “satisfied.” After giving the definition of color of title, which was substantially repeated by Gaston, J., in Dobson v. Murphy, supra, Judge Henderson said: “The color of title set up in this case not being in writing, for he proves the purchase by parol only, wants one of the essentials before mentioned and is therefore insufficient. If the purchase appeared in the sheriff's retyurn, it would be necessary to examine whether such return professed to pass the title." The first opinion in which that learned Judge had passed upon the question directly seems to have remained unchallenged until sixteen years afterwards when the case of Dobson v. Murphy construed his definition as excluding any sort of a sheriff’s return on an execution. In the case of Avent v. Arrington, 105 N. C., (at page 379) it appeared that there was no seal to the instrument under which the plaintiffs claimed and this Court, citing (at page 392) Barger v. Hobbs, 67 Ill., 592, which rested on the ground that such an instrument showed tbe extent of the possession and the nature of the claim, held that it was sufficient as color of title, though it passed only an equity in the land to the grantees.

In Brown v. Brown, Justice Natis delivering the opinion of the Court and referring to the authorities cited in Avent v. Arrington, said, in discussing and giving the sanction of this Court to the charge of the Judge below, “The possession of Javan Davis and his assignee under the bond for title was the possessioh of the vendor, under whom they claim, until the pur olíase money was paid.” Wood, in his valuable work on limitations (2 vol., pp. 648, 649) says: “But where a contract is made for the sale of land, upon the performance of certain conditions and the purchaser enters into possession under the contract, his possession from the time of entry is adverse to all except his vendor, and it seems now to be well settled that after the p 'er-fomanoe by him of all the conditions of the contract, he from that time holds adversely to the vendor and full per-foronance is treated as a sale and the party in possession may acquire a good title as against the vendor by the requisite period of occupancy.” In a note the author cites numerous authorities from various courts sustaining the doctrine that whenever a person, occupying land under an executory agreement of another to convey, pays the purchase money and places himself in such a position that he can demand title, his possession immediately becomes adverse to him who has contracted to convey. Beard v. Ryan, 73 Ala., 37; Catlin v. Deller, 38 Conn., 26; Stowher v. Griffin, 20 Ga., 312; Paxson v. Bailey, 17 Ga., 600; Brown v. King, 5 Metcalf, 173. The Supreme Court of Georgia defined color of title to be “any thing in writing, connected with the title, which serves to define the extent of the claim.” Field v. Boynton, 33 Ga., 242. In Bell v. Longworth, 6 Ind., 273, it was held that where one enters into possession of land under any written agreement defining the character and extent of his claim and pays the purchase money, such entry is under color of title and is adverse to all the world. In giving its sanction to the same doctrine the Supreme Court of Illinois, in McClelland v. Kellogg, 17 Ill., at p. 501, cite a number of cases chiefly from the courts of New York and Pensylvania to sustain the opinion. These authorities and many others which might be added show that the trend of judicial opinion is towards the reasonable view that a purchaser, who has paid the price for which he bought whether from a public officer at auction sale or from an individual contractor if he is in the occupation of the land bought, holds it adversely to all the world under any writing that describes the land and defines the nature of his claim. As we find in our decisions serious conflict in the definitions of color of title, it seems the more reasonable to return to the consistent view taken by so eminent a jurist as Judge HbNDERSON, and from which Judge Rufk’IN departed only because he was powerless, especially when the weight of reason and of authority elsewhere and the liberal tendency of our own later adjudications tend so strongly in that direction. It is but just to the purchaser that when he pays the price and is delayed in getting a perfect title he should have all of the benefit incidental to the ownership of the legal as well as the equitable estate. Of course he would enjoy and exercise such right subordinate to the registration laws of the State, and would understand that it was to his interest to give constructive notice of his claim by registration of his contract or lis pendens or both, where practicable, at the earliest possible moment after acquiring a complete equity. Though, since the passage of the Act of 1887, Oh. 147, an unregistered deed is available as color of title to one in possession ordinarily (Avent v. Arrington, 105 N. C., 889) tbe principle will not be extended in its application so far as to to defeat the rights of a purchaser without notice. But while litigating with the sheriff when the latter refuses to make title, it seems but just to place him in the same position as if he had obtained a deed on the day when equity declares he has a right to it. The statute has provided for treating him as the owner by subjecting his land to sale under execution. "While he is so exposed, courts administering equity should treat him at least as a color-able owner. It would seem but a fair implication that when the legislature declared by the Act of 1826 that a complete equity should be subject to sale under execution, the law making branch of the government meant to treat the owner of such an equity as holding under at least color-able title. In holding that an occupation under a paper-writing in the form of a deed, except that it wants a seal, or under a bond for title after the payment in full of the purchase money, is adverse to all the world and will ripen into a perfect title at the end of the statutory period, this Court- is committed to the reasonable principle that one who has a perfect or complete equity in land has color of title. There can be no such thing as a complete equity without some paper-writing signed by the party to be charged and setting forth in terms or by reference to some other paper the same description which will identify the land as well as the consideration, the receipt of which may be shown aliunde. Our own adjudications have established the principle that a void deed is often, if not generally, color of title (McConnel v. McConnel 64 N. C., 342) and that a deed executed in pursuance of on act afterwards declared unconstitutional is to be distinguished from one executed in contravention of an express statute or provision of the Constitution. Church v. Academy, 2 Hawks, 234; Ferguson v. Wright, 113 N. C., 537. The occupant is not generally presumed to know the law in so far as it prescribes the nature of conveyances and the usual requisites as to form and substance, and an instrument though defective or informal will be held sufficient provided he seems to have acquired a right to land. This liberal rule however does not extend so far as to assume that he does not know what is expressly prohibited by law.

Viewing the sheriff’s deed as an attempted conveyance executed to W. A. Lash, Sr., after his death, it would be obviously void for want of a grantee and for failure to deliver. But it was insisted that it would operate to pass the fee to his heirs who were known and could be identified. If we were at liberty to treat the words “W. A. Lash, Sr., and” as surplusage, then the delivery to W. A. Lash, Jr., who is shown to have been at the date of delivery one of the heirs, would enure to the benefit of the other heirs and tenants in common. But it seems to be a well established principle of interpretation that a deed executed to A, who is at the time dead, or his heirs, is good, if his heirs can be indentified, for the reason that he will take if living and he has nc heirs until his death. No such uncertainty arises, therefore, as in the case of a grant to A or B both living. 3 Washburn, 279; Hazon v. Page, 2 Wallace, 607; Ready v. Kearsley, 14 Mich., 224. But a deed to a person not then living “and his heirs” is void because the word “heirs” is a word of limitation and not of purchase. Hunter v. Watson, 12 California, 363.

We concur with his Honor in the opinion that the issuing of the summons by Nelson in 1884 did not under the circumstances arrest the running of the statute. We do not deem it necessary to notice the other assignments of error, though all have been carefully reviewed. We think, therefore, that as the return described the land, named the purchaser, and showed the payment of the purchase money, it was effectual as color to mature title from its date. The jury found under the instructions of the court below that those under whom plaintiff claims (W. A. Lash, Sr., and his heirs) held continuous possession for seven years, and such possession will subserve the same purpose, if the return was color of title, as if the deed had been valid or sufficient as color, and had related back to the sale. It is immaterial whether the return of the deed served the purpose of color so far as it affects the rights of the defendant. The error of the Judge, therefore, did him no harm. The judgment is affirmed.

Affirmed.