Stewart v. . Lowdermilk

61 S.E. 523, 147 N.C. 583, 1908 N.C. LEXIS 101

• Court: Supreme Court of North Carolina
• Decided: May 6, 1908
• Status: Published

Opinion

Clare, O. J.

The defendants claim under color of title and seven years’ possession. They showed a mortgage from one Hayes to J. II. Bean, 20 January, 1894, and a conveyance from Bean to defendants, 25 August, 1900. This action began 6 September, 1905. The defendants’ witnesses testified that the defendants had been in possession since some time in 1900; that they took over possession from Jesse Oof-fey, who had gone into possession late in the fall of 1898 as lessee of Beán, and that Coffey immediately succeeded Bobbins, who had been in possession two or three years under a verbal bargain and sale from Bean.

The plaintiffs contend:

1. That a mortgage is not color of title. But in this State it conveys the legal title, and the mortgagee in possession necessarily has color of title at least.

2. The plaintiffs further contend that the defendants cannot show seven years’ possession under color of title, since Bobbins’ possession was under a mere verbal bargain and sale from Bean. That would be true if the defendants were claiming under Bobbins; but they are claiming under Bean, and the possession of Bobbins was under Bean as a tenant at will.

His Honor charged the jury that “they would consider the mortgage from Hayes to Bean as color of title; also deed of Bean to defendant as tending to ripen defendants’ title by virtue of seven years’ possession under known and visible lines and boundaries.” He also charged the jury: “You will consider the evidence tending to show the possession of Bobbins as being that of Bean and inuring to the benefit of the defendants for the purpose of ripening their title by virtue of seven years’ possession under known and visible lines and boundaries.”

The plaintiffs excepted to each of these instructions, but there was

No Error.