Avent v. Arrington

after stating the facts: The defendants,in their answer to the amended complaint, deny the allegation that N. W. Arrington executed a deed on the 18th day of January, .1848, to his daughter, Elizabeth F. Wright, under whom the plaintiffs claim, for the land in controversy, and aver that the said Arrington, on that day, “signed a paper-writing, but they deny “that said document was either seale.d or delivered.” The plaintiffs, in their amended complaint (paragraph seven), allege that “if it shall be found, on inspection of the paper-writing alleged to be a deed in the second article of this complaint, executed by N. W. Arrington to Eliza*388beth Wright, has not a seal affixed to the name of N. W. Arrington, and is, therefore, not a deed,” &c., then that the said Elizabeth entered into the possession of the land described in said paper, immediately after its execution in January, 1848, and occupied and held possession of it until some time in the year 1857, when her husband conveyed it, without her assent, to John E. Speight, under whom the defendants claim.

The Judge below held “that the certificate of probate on said paper-writing is not sufficient to entitle it to registration, but the same being made a part of the answer', the question of its admissibility does not arise.” The admission contained in the second paragraph of the answer, that N. W. Arrington, on the 18th day of January, 1848, signed a paper-writing, is.one that relieves the plaintiffs of the burden of proving the contents of the paper and the genuineness of Arrington’s signature. The defendants thus introduced the paper, reserving only the right to controvert the sealing' and delivery of it. The plaintiffs, in their amendment to the complaint, do not insist that there was a seal to the instrument, and the only disputed question of fact left for his Honor was, whether there was sufficient evidence of the delivery to Elizabeth Wright. If the Judge had found the fact onty that the deed had been proven and registered, without mentioning the form of registration, the presumption would have arisen that it was in proper form, and that it was delivered. Patterson v. Wadsworth, 94 N. C., 538; Redman v. Graham, 80 N. C., 231. The Judge states, as a conclusion of law, after examining the certificate, that it is insufficient in form to meet the requirements of the statute. Though we concur with him that, by appending the paper as an exhibit to the answer, the defendants waived objection to its admissibility, subject to the reservation as to delivery contained in the answer, it would not follow that *389the. acknowledgment that it was signed would make it available, even as color of title, without satisfactory proof of delivery.

As there was no evidence of the requirement that the plaintiff should prove the delivery, the inquiry is naturally suggested, whether the paper-writing would be competent to show color of title upon parol proof of its delivery to Mr. Wright, or whether probate and registration are essential prerequisites to make it “good and available” ho law for any purpose. This Court has construed §1245 of The Code (since amended by ch. -147 of the Laws of 1885) as making a contract for the sale of land inadmissible without registration in an action brought to enforce a specific performance of it. White v. Holly, 91 N. C., 67. But in the case of Hunter v. Kelly, 92 N. C, 285, the Court said that “the registration was not indispensable to the use of the deed, as constituting color of title, but proof of its execution was sufficient to give it effect. The distinction evidently intended to be drawn was, that while neither “deed nor contract to convey land nor lease for more than three years should be available to vest an estate, or pass an interest by the mere force of the instrument before registration, the statute was not repugnant to the established rule that a paper-writing, constituting in law color of title, accompanied by continuous adverse possession by the person claiming under it for the period prescribed by law, raises a presumption of a perfect title in the occupant, and is admissible in evidence without registration when offered for that purpose. Hardin v. Barrett, 6 Jones, 159; Campbell v. McArthur, 2 Hawks., 33; Chastien v. Philips, 11 Ired., 255. The law thus interpreted works no injury to purchasers, because the fact that another is in possession is sufficient to put those who propose to purchase on inquiry, and is justly held to be constructive notice of his claim. Mayo v. Leggett, 96 N. C., 237.

*390So that it only remains for us to discuss and determine two questions — first, whether there was any evidence to support the finding that the paper-writing was delivered; and, second, whether, if delivered to her, it constituted color of title.

The endorsement by N. W. Arrington on the deed was a declaration of his against his own interest, and was some evidence that he delivered the instrument to his daughter. It is not necessary that we should adduce any other testimony bearing upon the question, as it was the province of the Judge to pass upon the weight of that offered, and his conclusions of fact, if we find any support for them in the evidence, will not be reviewed in this Court. Burke v. Turner, 85 N. C., 500.

In Ellington v. Ellington, 103 N. C., 54, the late Chief Justice SMITH, delivering the opinion, approves the definition of color of title given by Judge GastoN in Dobson v. Murphy, 1 D. & B., 586, to which Chief Justice RupfiN agreed, with great reluctance, because it was not made broad enough to comprehend any written evidence of title accompanied by possession. That definition is as follows: “Some written document of title purporting to pass the land, and one not so obviously defective that it would not have misled a man of ordinary capacity ” Earlier and latter adjudications of this Court are in accord with Dobson v. Murphy. See Tate v. Southard, 3 Hawks, 121; Keener v. Goodson, 89 N. C., 277.

If the paper-writing relied on in our case comes within the description of color of title, the only remaining question of any importance is settled. We think that it does. The reason that underlies the doctrine of maturing title by adverse possession under imperfect deeds or contracts is, that where one, in the exercise of ordinary care and intelligence, is induced to enter upon'and cultivate, and sometimes improve land, because he has some written evidence of title that would naturally induce a man, not trained in the law, *391to believe that it vested in him what it professed to pass, it would be unjust to recognize or enforce the right of another who brings no action till the end of the statutory period. Wood on Lim., § 159.

The Supreme Court of Georgia hold that any writing which defines the “extent of the claim” is “a sign, semblance or color of title.” Field v. Boynton, 33 Georgia, 242.

The Supreme Court of New York hold that where one enters upon land under a contract of purchase, he holds in subordination to his vendor, and his occupation is an elongation of the possession of his vendor till* the purchase-money is paid, but when the land is fully paid for the possession of the vendee becomes adverse to the whole world, including the vendor. Whitney v. Wright, 15 Wen., 171; Briggs v. Person, 14 Wen., 227.

The Supreme Court of Alabama held, in Beard v. Ryan, 78 Ala., 37, not only that the vendee’s possession becomes adverse on payment of purchase-money, but that if the vendee sell before he has paid, a sub-purchaser who buys from such vendee and pays the stipulated price, and is put in possession, holds adversely to the original vendor. See also Elliott v. Mitchell, 47 Tex., 445; Spilter v. Schofield, 43 Iowa, 571; James v. Patterson, 62 Ga., 527; Rutherford v. Hobbs, 63 Ga., 243. But upon these questions the authorities of the different States are in conflict. Ellege v. Cork, 5 Lea (Tenn.), 622; Con v. Faupel, 2 W. Va., 238. A majority of the Courts of this country concur in the opinion that, where a man enters into the possession of land under a written contract of purchase, and has, under such agreement, the right to demand the conveyance of the legal title to said land, his possession will be deemed adverse to all the world, and his title will begin to mature when his right to make such demand accrues. Wood, in his work on Limitations, of Actions, § 260, after a review of the authorities, states the rule as follows: “ To constitute an adverse possession, it must *392not only be hostile in its inception, but the possessor must claim the entire title, for if it be subservient, to and admits the existence of a higher title, it is not adverse to that title. 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 performance by him o'f all the conditions of the contract, he from that time holds adversely to the vendor, and full compliance is treated as a sale, and the parties" in possession may acquire a good title, as against the vendor, by the requisite period of occupancy.” These questions have been discussed, by way of illustration, and to show how far the Courts and leading law-writers of the country have gone in sustaining titles claimed under contracts of purchase with continuous possession; but we decide only the question directly involved in this controversy. Any of the definitions of color of title, however restricted, will, we think, include the writing upon which the claim of Elizabeth Wright is founded. It was in form a deed that purported to convey the entire estate in the land, and only one educated in the law could be expected to understand that a seal was necessary to make it, in reality, a deed, and vest the legal estate in the grantee. We find direct authority to sustain this view in the cases of Barger v. Hobbs, 67 Ill., 592, and Watts v. Parker, 27 Ill., 224, in both of which the Court held that while a paper purporting to be a deed was not valid for the purpose of conveying title unless it is under seal, yet when'a person enters into possession under such a paper it is admissible in evidence for the purpose of showing the extent of his possession and what he claimed by it. Under that paper she held continuous adverse possession for more than seven years before her husband sold and conveyed to Speight in the year 1857, and the law' gave her the title, raising the presumption that the legal, *393as well as the equitable estate, had been granted to her. Rogers v. Mabe, 4 Dev., 180; Wood on Lim., § 254; Washburn on Real Prop., 499; Trim v. McPherson, 7 Calder (Tenn.), 15. The claim to the land might have been abandoned by her at an)*- time before a valid title was acquired by surrender of possession, but after her title ripened into a perfect one, the mere act of leaving the land did destroy it. She had acquired such an estate as could be transferred only by deed, and it descended to her heirs at law, at her death, in the year 1872. School District v. Benson, 31 Me., 381; 52 Am. Dec., 618. Under the provisions of § 1, ch. 56, Revised Code, W. T. Wright could convey his life estate, as tenant b\r the courtesy, without the joinder of his wife, in any land acquired by her before March 1st, 1849, and though she refused to join in the deed to John F. Speight, it was still effectual to pass an estate in the land for the life of William T. Wright, and no longer. Wood on Lim., §259. He died August 25th, 1886, and the possession of those claiming under his deed was not adverse to her heirs until after his death. It follows, therefore, that the estate of the wife that descended to her heirs, subject to the life-estate of the husband, which passed by his deed to Speight, vested in the plaintiffs, and they held both the legal and equitable estate in the land, and, after the death of the husband, had a right to recover in this action, which was brought on the 12th of April, 1888. Adding to what we have already said in reference to the estate acquired by Elizabeth Wright by possession under- the paper-writing, the further statement that said paper was not the less effectual as color of title, because it was not given for a valuable but for a meritorious consideration, we conclude that the judgment of his Honor should be affirmed, though we reach the same conclusion in a different way. Rogers v. Mabe, 4 Dev., 180.

*394It seems unnecessary to say that we need not follow the learned counsel in the line of discussion pursued by them as to the equities of the parties, when we hold that Mrs. Wright acquired a title to the land before she left it in 1857, upon which her heirs could recover in ejectment, were the principles of law and equity still, as formerly, administered separately.

Affirmed.