#### Doe on demise of Tate’s heirs v. Southard.

1 From Burke.*

Golour of title may be defined to be a toniing, upon its face professing to pass title, but which does not do it, either from a want of title in the person making- it, or the defective mode of conveyance which is used, and it would seem that it must not be so obviously defective, that no man of ordinary capacity could be misled by it.

Ejectment. — The lessor of the Plaintiff claimed the land in dispute, by virtue of a grant from the State, bearing date 11th of October, 1814. The Defendant claimed under a Sheriff’s saie, made to one Greenlee, and gave in evidence a copy of a record from Burke County Court, shewing that an attachment had been sued out in January, 1784, at the instance of James Greenlee, against one Richardson, returnable to January sessions, 1784, with this return : “attached one piece of land that Richardson bought of Kennedy.” At April sessions there was a \erdictfor the Plaintiff, and a writ of ji, fa. issued thereon, to July sessions, 1784, which was returned, endorsed “satisfied.” The Defendant then proved, by parol evidence, that the same tract of land, mentioned in the levy of the attachment, and now in suit, was exposed to sale to satisfy the execution, and Greenlee bid off the land. At the time of sale, one Nicholson lived upon the land, and it was afterwards occupied, at different times, by two other tenants! it then continued unoccupied until the year 1789, when one Hartley took possession, and continued it for twenty-five or twenty-six years, as tenant of Greenlee; when Hartley moved oif, the Defendant took possession as tenant under Greenlee. At the time of the sale, in 1784, it was believed that the land had belonged to Kennedy, and the Defendant introduced copies of several grants *120for adjoining lands, dated, respectively, in 1779, 1780, and 1783, all of which called for Kennedy’s lines or corners, and it was considered and believed by the ncigh-{,01U,S? that the lines of these several grants, together" with one McElworth’s, were the lines of Kennedy’s land, as these tracts bounded it on every side. No grant ever was taken out by Kennedy. The Defendant claimed, also, under the act of 1791.

The Court instructed the Jury, that the act of 1791, required a possession of twenty years, under known and visible lines and boundaries, and under a colour of title; that if they could ascertain, from the record produced in evidence, that the land in dispute had been sold by the Sheriff, that such sale would amount to colour of title, and coupled with twenty years possession, under known and visible lines and boundaries, w’ould ripen into a valid title, in which case they ought to find for the Plaintiff, but that they must gather the fact of the sale, by the Sheriff, from the record itself, and not from parol evidence.

Yerdict for the Plaintiff; new trial refused; judgment and appeal. '

*

Vide ante, vol. 1, S. C.

Henderson, Judge.

Colour of title, as applicable to the present subject, is evidently the production of our own country. I will not, therefore, go abroad for an explanation; the name, I presume, was taken from what is called giving colour in pleading, which is never used in this State, and not often, I believe, in England. The word is not to be found in the act of 1715; it is first used in our act of 1791. Giving colour in pleading, is giving to your adversary a title which is defective, hut not so obviously so, that it would be apparent to one not skilled in the law, it must be such as would perplex a layman; it, therefore, draws the consideration of the question from the Jury, (the lay gents,) to the Court, which is the object of the pleading. I think we should *121 go no further than our act of 1715, at most not further than the act of 1791, on the question we are now investigating. The 2nd section of the act of 1715, ratifies and confirms all sales made by creditors, executors or administrators, husbands and their wives, husbands seised in right of their wives, or by indorsement of patents, or otherwise, where the possessor shall have been, in possession for seven years; The act of 1791, confirming possessions against the State, uses the same phraseology, except that the words other colourable title, are substituted for the words, “ or otherwise,” used in the act of 1715. The words, “or otherwise,” and “ other colourable title,” mean title of the like kind. Those mentioned in the act are all written ones; are all such as, upon their face, profess to pass the title; in some of them, conveyance is sufficient to pass the title, but the defect lies in the want of title in the grantor $ in the last instance put, the indorsement of a patent, the conveyance is defective. The defect, in that case, is not in the want of title in the grantor, but in the defective conveyance which he has used; and if we take the words of the iict of 1791, “ other colourable title,” as an exposition of the words “or otherwise,” in the act of 1715, and expound colourable title, by what is meant by giving colour in pleading, the only case in which I find co-lour of title used anterior to the acts before mentioned; colour of title may then be defined to be a writing, upon its face professing to pass title, but which does not do it, either from a want of title in the person making it, or the defective mode of conveyance that is used; and it would seem, under the act of 1791, at least, that it must not be plainly and obviously defective, so much so that no man of ordinary capacity could be misled by it. The colour of title set up in this case, not being in writing, for he proves the purchase by parol only, wants one of the essentials before mentioned, and is, therefore, insufficient j if the purchase appeared in the Sheriff ’s return,. *122it would then be necessary to examine whether such' a return professed to pass the title. What is said as to what may be the effect of the words, oilier colourable ti-tie, used in the act of 1791, upon the possessions which that act confirms, I beg to be considered as a mere obiter dictum, for that act cannot affect the construction of the act of 1715, which, alone, we are now’ considering.

Taylor, Chief-Justice, and Hax/u, Judge, concurred.