Rhodes v. . Brown , 13 N.C. 195 ( 1829 )

FROM ROBESON. The defendant contended that Isham Pitman had a better title to the land than the lessor of the plaintiff. To establish this, and to rebut the possession under Lee's deed to William Brown, by evidence of a possession in himself adverse to the latter, he proved that on 23 October, 1821, William Brown by a written agreement, not under seal, sold the land to him; since which time William Brown has had no possession of the land, except as a member of his family, in the capacity of a day laborer.

The plaintiff proved that seven years' continued possession, adverse to Isham Pitman's title, had existed before the judgment against William Brown and the sheriff's deed to Jacob Rhodes; but this possession of seven years was composed of the possession of William Brown for five or six years, and for the residue of that of the (196) defendant since the date of the agreement between him and William Brown.

His honor charged the jury that if there had been a continued posession [possession] held under the deed from Jesse Lee for the space of seven years before the judgment was rendered against William Brown, then the title of Isham Pitman was destroyed, and his right of entry taken away by the act of 1715; that if they believed the defendant claimed the possession under the deed from Jesse Lee to William Brown, that deed was color of title for those who claimed under it. That the fact that the defendant, after the date of his agreement with William Brown, set up a title adverse to the latter made no difference; if his possession was consistent with the possession of those who claimed under Lee's deed to William Brown; that if the possession under his deed was for seven years held adverse to Pitman's title, although part of that time might be made up of the defendant's possession, then Pitman's right of entry was lost; and as the defendant had no conveyance of the legal estate, his possession enured to confirm the legal title, which, being in William Brown, was at law subject to be sold under an execution against him, and that the defendant's title was purely equitable, and could not avail him as a defence to this action.

A verdict was returned for the lessor of the plaintiff, and the defendant appealed.

The case was submitted, without argument. Whatever title William Brown had to the land in dispute has been transferred to the lessors of the plaintiff, and on that title he rests his right to recover in the present action. That title is thus deduced.

(197) In 1779 a grant issued from the State to Thomas Pitman for the land in dispute. Jesse Lee, by deed bearing date 1814, conveyed the same land to William Brown, who had an uninterrupted possession of the land for seven years under that conveyance before it was levied upon and sold to Jacob Rhodes. Jacob Rhodes, the purchaser, devised it to the lessor of the plaintiff, and his title must be good, unless it has been weakened or destroyed by the claim set up by the defendant.

If William Brown had conveyed the legal title in the land to the defendant in 1821, and they both remained in possession so long as to make an uninterrupted possession of seven years from the time William Brown first took possession under the deed from Lee, the title of the land would be in the defendant; for he and William would have had an uninterrupted possession for seven years under the color of title.

But it appears that the legal title had not been conveyed to the defendant; that he had an equitable claim to the land under an agreement with William Brown, which is not made part of this case, and that he and William remained in possession of the land, as before stated. As the defendant has no title which can be noticed in a court of law, his title avails nothing, as being adverse to William, but must be taken to enure to William Brown's color of title; for in truth what equitable claim the defendant had would have availed nothing without it.

I therefore think, as William Brown had seven years' possession under color of title that his title is sufficient to enable the lessor of the plaintiff to recover, having been transferred to him. The rule for a new trial should be discharged. If Rhodes, the purchaser, had notice of the defendant's equitable title, a court of equity will consider him as a trustee for defendant.

PER CURIAM. No error.

(198)