Opinion
(June Term, 1861.)
A grant from the State, purporting to be made in obedience to acts of the General Assembly providing for the relief of persons whose title deeds had been destroyed by the burning of the courthouses, etc., of Hertford and Montgomery counties, was held to be color of title.
EJECTMENT tried before French, J., at Fall Term, 1860, of MONTGOMERY.
Ashe for plaintiff.
No counsel for defendant.
The lessors of the plaintiff offered in evidence a grant from the State, dated on 14 December, 1849, which purported to have been issued "in obedience to an act of the General Assembly of this State, passed at the session of 1844-45, chap. 53, ratified 1 January, 1845, entitled, `An act to extend the provisions of an act passed at the General Assembly of 1830-31, entitled an act for the relief of such persons as may suffer from the destruction of the records of Hertford County, occasioned by the burning of the courthouse and clerk's office, to the counties of Montgomery and Stanly.'" To entitle themselves to the benefit of said acts of Assembly, the lessors of the plaintiff produced evidence to show that the title deeds under which they claimed the land in question were consumed by the fire which burned the courthouse of Montgomery County in 1843; that they had made advertisement of a survey in 1849, setting forth their boundaries, and the grounds on which they claimed a right to an entry and grant for the said land. They also proposed to (348) show the entry made in 1849, and which is recited in the said grant. They further proved that they had had seven years possession of the land in question, and insisted that at least the grant offered by them was color of title. The court rejected the evidence, and the plaintiff took a nonsuit, and appealed.
We do not think it necessary to discuss other questions presented upon this record. There is one ruled erroneously, without doubt to the prejudice of the appellant, and for that he is entitled to a venire de novo; the grant of 14 December, 1849, to Adelaide and Elizabeth Kron, is color of title. We perceive no reason why it is not so. The public authorities decided upon the evidence before them that the grantees were entitled under the provisions of the acts of Assembly, and accordingly they made the grant. It in form purports to convey title — emanates from proper and the highest officers of the State, and is, therefore, of a character to induce a man of ordinary capacity to confide in it as sufficient to secure the enjoyment of the land. This is all that is necessary to constitute color; Dobson v. Murphy, 18 N.C. 586; Tate v. Southard, 10 N.C. 119.
Many forms of conveyance, much less imposing than this, have been held to be color; as, for instance, an unregistered deed — an unconditional act of this Legislature — a deed without consideration, and intended merely, as color; Campbell v. McArthur, 9 N.C. 33; Church v. Academy, 9 N.C. 233; Rogers v. Mabe, 15 N.C. 180.
The nonsuit should be set aside.
PER CURIAM. Venire de novo.
(349)