60 S.E. 419 | N.C. | 1908
This is an action brought by plaintiff to recover damages for an alleged trespass on the lands described in the complaint. Plaintiff alleged title and possession at date of trespass. Defendants denied plaintiff's title, and alleged ownership of the land, possession, etc. The jury found the issues for defendants. It appears that, prior to August, 1882, the lands in controversy were the property of one Henry Foreman. Plaintiff introduced a deed from the heirs of Foreman, who died during 1896. The date of this deed does not appear from the record and is not material. He next introduced a witness who testified that defendants had entered upon the land and cut timber subsequently to the date of his deed. It was admitted that both parties claimed title under Henry Foreman.
Defendants introduced a deed, bearing date 3 August, 1884, from Sawyer, sheriff of Camden County, containing the following recital: "Whereas the taxes assessed for the year 1882 on the following lands and tenements in Camden County, to wit, 150 acres of swamp land, bounded by the Pasquotank River, the lands belonging to the county of Camden, known as the Poorhouse land, and other lands (for further description of said land see deeds from G. W. Charles and wife, Fanny, and Edwin Ferebee to Henry Foreman in Book DD, pages 78 and 79), remained unpaid after the time limited by law, M. N. Sawyer, sheriff of Camden County, levied on said lands and returned his levies to the clerk of the Superior Court of said county; and the said sheriff, after advertising and giving notice according to law, sold said lands, to pay said taxes and costs, at public auction at the courthouse in Camden, on 2 July, 1883, when and where John A. Bartlett became the purchaser at the sum of $11.25, and has paid the said sum; and the owner of the lands and tenements having failed to redeem the same." (497) Following this recital is the usual clause conveying the land. The deed was duly recorded 27 December, 1884. Plaintiff objected and excepted to the admission of this deed. Defendants introduced the record of Camden County, showing (1896) a survey of lands, pursuant to Revisal, sec. 1505. Plaintiff objected and excepted. The tax list of 1882 was introduced, showing that no lands were listed for taxation by Henry Foreman. There was evidence tending to show that the survey covered the lands in controversy, and that defendant Bartlett was in possession after the date of the sheriff's deed; that plaintiff offered to buy the land of defendant Bartlett in 1904. Plaintiff showed by records that no receipt was recorded from the sheriff to defendant Bartlett. A number of exceptions are set out in the record to his Honor's charge, etc. Judgment for defendants, and appeal by plaintiff. *363
Conceding that the deed executed by the sheriff to defendant, pursuant to his purchase at the sale of the land for nonpayment of the tax due thereon, is invalid and conveys no title, because of the statutory duty of the sheriff to bid it in for the county, where no person is willing to pay the tax for some portion less than the entire tract, the question is presented whether it does not constitute color of title, within the meaning of the statute of limitations. Revisal, sec. 382. There was evidence tending to show, and we must assume that the jury found, under his Honor's instruction, that defendant Bartlett entered into possession of the land claiming title thereto under the deed, and remained in possession adversely to the owner, Foreman, more than seven years prior to his death. The plaintiff's claim, based upon the deed from Foreman's heirs at law, assumes that the deed was void on its face, and, for that reason, was not (498) color of title. He presents this view by objecting to the introduction of the deed in evidence and by exceptions to his Honor's instruction to the jury. If his position is correct, of course the deed was inadmissible for any purpose. His Honor admitted it as color of title. The correctness of this ruling depends upon the question whether, in any point of view, it was color of title, and whether the seven years possession under it barred the entry of Foreman or his heirs. In Tate v. Southard,
We have not neglected to note the cases cited by plaintiff. In Dickensv. Barnes,
Upon a careful examination of the entire record, we find no error in his Honor's rulings to which exceptions are taken. The judgment must be
Affirmed.
Cited: Burns v. Stewart,