Perry v. . Perry

6 S.E. 86, 99 N.C. 270

• Court: Supreme Court of North Carolina
• Decided: February 5, 1888
• Status: Published

Opinion

Davis, J.,

.(after stating the case). This proceeding'was commenced in August, 1882.. Did the deed from John Perry and Margaret, his wife, executed to the defendant on the 13th of June, 1855, constitute color of title?

The plaintiffs say that it did not, and this is the only point relied on in this Court. The learned counsel for the plaintiffs say that as the private examination of Margaret Perry was not taken, the deed to Caswell was “absolutely null and void,” and therefore could not constitute color of title. He refers us to Scott v. Battle, 85 N. C., 184. In that case the deed was executed by Mary Scott, feme covert alone, the husband did not join. Ruffin, J., delivering the opinion of the Court, said: “The statute confers upon her (the wife) the power to convey by a simpler mode (than that of uniting with the husband in levying a fine), but it prescribes the terms and without their strict observance the act stands as it would in common law — absolutely null and void.” This can only mean that it is absolutely inoperative and ineffectual to convey the title of the feme covert. For that purpose it could have no more effect than if executed by an absolute stranger, without any title and without any authority to convey.

The question here is not whether Caswell Perry acquired any title to the fee under the deed from John and Margaret, but whether the deed constituted color of title ? Of course if the deed was valid, the other question would be of no consequence.

In Pearse v. Owens, 2 Haywood, 234, (Battle’s edition, 415,) 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 case is cited with approval in McConnell v. McConnell, 64 N. C., 342, in which Rodman, J., states clearly the doctrine of color of title and illustrates it by reference to a number of cases. The general rule that every man is presumed to know the law has no application in determining what is or what is not color of title. As is said by Judge Rodman, in the last case cited, “ the statute upon which the whole doctrine of color of title is founded, recites as the evils to be remedied that many persons had gone into the possession of lands upon titles having patent defects which, on the supposition that all men know the law, could have deceived no one and would not have deserved protection.”

So an unregistered deed is color of title. In Hardin v. Barrett, 6 Jones, 159, Ruffin, J., approving Campbell v. McArthur, 2 Hawks, 33, in which it was held that an unregistered deed was color of title, says: "As far as this Court is advised, it has not been doubted since up to this case, on the contrary it has been assumed, indirectly, on several occasions, as settled law. Why should it not be ? Such a deed shows the' nature of the possession taken under it to be adverse, just as much as if it were registered, and if the possession be continued for seven years, it affords evidence of its character sufficiently notorious to put the. owner to his-action.”

Does not this reasoning apply with equal force to a deed executed by husband and wife? The writing professes upon its face to pass the title. Keener v. Goodson, 89 N. C., 273.

Affirmed.