The agreement of the parties, which is copied in the statement, greatly simplifies the case. It appears from the charge that the court held, and so instructed the jury, that the judgment or decree in the case of Stewart v. Calloway, Evitt,and others was color of title, and as the appellants had admitted the adverse possession necessary to ripen this color into a good title, they would, if they believed the evidence, answer the first issue "Yes." So the decision of the case turns mainly upon the correctness of this ruling as to color of title, and this is necessarily so, because the parties have, by their solemn agreement, declared that it shall be so. In the brief of appellant's counsel it is also admitted to be so, by this (365) statement: "The Stewarts claimed this judgment was color of title as against appellants, and as they had shown possession for more than seven years after the judgment, they had matured title; and the court so held, and charged the jury to that effect." Counsel for appellants contend that there is no evidence as to what lands were in controversy between the parties in that case, and that the judgment did not pass any title to Stewart, and therefore it is not sufficient color of title, but we think otherwise. It clearly appears that the title to *Page 300 several tracts of land was litigated in the suit, and that it was finally adjudged that Stewart was the owner of the land covered by Grant No. 3625, and the decree, by its terms, had the force and effect in law either of confirming or of vesting the title to that tract, as between the parties to the action, in Stewart, who was plaintiff in the action. If the defendants had any title or interest in that tract, they lost it by the decree, and it became vested in their adversary, Henry Stewart, Sr., and was transferred to him by force of the judgment, and they were forever afterwards estopped from claiming any interest in the land as against him. Color of title has been variously defined by the courts of this country. It was early held to be any writing which on its face professes to pass a title, but which it fails to do, either from want of title in the person making it or from the defective mode of conveyance employed; but it must not be so obviously defective as not to mislead a person of ordinary capacity, but not skilled in the law. McConnellv. McConnell, 64 N.C. 342; Tate v. Southard, 10 N.C. 119;Dobson v. Murphy, 18 N.C. 586. The courts have generally concurred in defining it to be that which in appearance is title, but which in reality is not. Wright v. Mattison, 18 How. (U.S.), 56;Jackson v. Frost, 5 Cowen (N. Y.), 346; Baker v. Sawn,32 Md. 355; La Frombois v. Jackson, 8 Cowen, 589; Hall v.Law, 102 u. S., 466. The doctrine is said to have originated in the necessity for showing good faith in entering upon the land, the law not permitting a person to be ousted who had settled upon land in good faith, believing it to be his, and after holding it adversely for seven (366) years (Grant v. Winbourne, 3 N.C. 220); but it was subsequently held that whether the writing was good color of title did not depend upon his good faith, for even if he knew the land belonged to another person than his grantor, it would still be color. Riddick v.Leggat, 7 N.C. 539; Rogers v. Mabel, 15 N.C. 180;McConnell v. McConnell, supra. Finally, the definition we have first given was adopted, and an unconstitutional act of the General Assembly was held to be within the meaning of the definition and to confer a good title where the necessary adverse possession had been held under it for the requisite time. Church v. New Bern Academy,9 N.C. 233. Color of title is necessary, not so much to show good faith, as to fix the extent or boundaries of the land to which title may be acquired by the continuous and adverse possession. Thurstonv. University, 4 Lea., 520; Goodwin v. McCabe, 75 Cal. 584;Greenleaf v. Bartlett, 146 N.C. 495. The case last cited shows the liberal tendency of the courts upon this question, and we think follows the more reasonable principle. The subject is fully *Page 301 discussed in Sedgwick and Wait on Title to Land, sec. 761 et seq. Judgments or decrees may be color of title. 1 Cyc., 1100; Wardlaw v.McNeill, 106 Ga. 29; Patton v. Dixon, 58 S.W. 300;Kimball v. Lohmas, 31 Cal. 157; Thurston v. University,supra; Wood v. Conrad, 2 S.D. 341; Reedy v. Canfield,159 Ill. 254; 7 Enc. U.S. Sup. Ct., p. 955; Defferback v. Hawke, 115, U.S., 407. We have held that a judgment in a proceeding for partition is color of title, although it does not divest or vest any title. The Court said in Bynum v. Thompson, 25 N.C. at p. 584, that "partition does not, indeed, constitute a title, except as against the parties to it, but it is color of title, as much as any of the defective instruments which have been thus deemed." And this case has been followed ever since. Smith v. Tew, 127 N.C. 299; Lindsayv. Beaman, 128 N.C. 189; Hill v. Lane, 149 N.C. 267. To the same effect are Johnson v. Britt, 56 Tenn. (9 Heisk M.), 756;Brind v. Gregory, 120 Cal. 640; Duncan v. Gibbs, 9 Tenn. (1 Yerger), 256. The Court said in Lindsay v. Beaman, supra, that title passes by deed, from owner to purchaser, and to constitute color of title the deed must be registered (Austin v. Staten, 126 N.C. 783), while in partition proceedings between tenants in common no (367) title passes; and in Johnson v. Britt, supra, it was said that in such a proceeding there is no divestiture of title, but the decree merely defined the claim of the parties to their respective shares.
In this case the judgment in the suit of Stewart against Calloway and others vested the title in Stewart as much so as if the other parties had been required to execute deeds to him for the land. It is a solemn adjudication, after trial and investigation, that the true title is in him, and it would be singular if we should hold that such a judgment is not color of title, when the deed of one having not even the pretense of a title would be. The judgment not only declares the title to be in Stewart, but also the right of possession. An adverse possession taken and continued for seven years under such a solemn determination should be as much protected as one under a void deed or a deed ineffectual to pass title. To rule otherwise would be to sacrifice the substance of the thing to the mere form or shadow. It appears that the judgment clearly adjudges Stewart's right and title, defined the extent of it with perfect accuracy, and declares him to be entitled to the possession of the land. It comes, therefore, within every reason or principle upon which the doctrine in respect to color of title is founded. The effect of the judgment was to pass any title in the land which the other parties may have had to Stewart — at least by estoppel. Keener v. Goodson, 89 N.C. 273, does not militate against this view. There *Page 302 no question of title was involved, the allotment of the homestead having, as said by the Court, "no other effect than simply to attach to his (homesteader's) existing estate a quality of exemption from sale under execution." We do not pass upon the merits of that decision, for the facts and the reasoning have no application to our case.
Holding, as we do, that the judgment in the Calloway suit was color of title, it follows, under the terms of the stipulation made by counsel, that the ruling of the court was correct.
No error.
Cited: Seals v. Seals, 165 N.C. 413, 416; Knight v. Lumber Co.,168 N.C. 454; Buchanan v. Hedden, 169 N.C. 224; Alsworth v. Cedar Works,172 N.C. 22.
(368)