{ "id": 8650817, "name": "F. M. SMITH AND WIFE v. ZACH. ALLEN et al.", "name_abbreviation": "Smith v. Allen", "decision_date": "1893-02", "docket_number": "", "first_page": "223", "last_page": "226", "citations": [ { "type": "official", "cite": "112 N.C. 223" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "99 N. C., 270", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8650124 ], "opinion_index": 0, "case_paths": [ "/nc/99/0270-01" ] }, { "cite": "91 N. C., 382", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8693206 ], "opinion_index": 0, "case_paths": [ "/nc/91/0382-01" ] }, { "cite": "94 N. C., 14", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8650144 ], "opinion_index": 0, "case_paths": [ "/nc/94/0014-01" ] }, { "cite": "2 Murph., 14", "category": "reporters:state", "reporter": "Mur.", "case_ids": [ 8683676 ], "opinion_index": 0, "case_paths": [ "/nc/6/0014-01" ] }, { "cite": "89 N. C., 273", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8683167 ], "opinion_index": 0, "case_paths": [ "/nc/89/0273-01" ] } ], "analysis": { "cardinality": 324, "char_count": 5988, "ocr_confidence": 0.407, "pagerank": { "raw": 6.220778033418382e-08, "percentile": 0.3848253315154667 }, "sha256": "bd9e870c6ea87a6b01f18d6fe0722e07df21fd3213112f814201bbbeee436408", "simhash": "1:dc2b8e276b018b41", "word_count": 1058 }, "last_updated": "2023-07-14T16:52:34.318959+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "F. M. SMITH AND WIFE v. ZACH. ALLEN et al." ], "opinions": [ { "text": "MacRaic, J.:\nAll the deeds offered by the plaintiffs were competent to show color of title, and were followed by testimony tending to prove continuous adverse possession under visible lines and boundaries by the plaintiffs and those under whom they claim for, more than seven years, (\u25a0olor of title is a writing upon its face professing to pass title to land. Keener v. Goodson, 89 N. C., 273.\nThe first exception is met by Hill v. Wilton, 2 Murph., 14, which held that where the power of attorney was produced and plainly .showed that the attorney had no authority to convey land, the deed purporting to be made by virtue of the power therein, constituted color of title.\nThe second exception is covered by the case of Hare v. Holleman, 94 N. C., 14, where it is held that where the original papers in a cause have been burned or lost, the minutes of the Court are admissible in evidence to establish the validity of the proceedings.\nThe deed from Sherrod Tyson to W. A. Cherry, trustee, \u25a0 objected to because it had not been probated as to Cherry, was competent, having been proved and registered- as the deed of Tyson, under the presumption that it was accepted by the grantee therein. And if probate and registration had been necessary as to Cherry to pass title, the unregistered deect is color of title. Davis v. Higgins, 91 N. C., 382.\nThe deed objected to bjr defendants because the privy examination of Sophia Paul did not appear to have been taken was also good as color of title, even if Sophia Paul wore a Jeme covert, of which we are not apprised. See Perry v. Perry, 99 N. C., 270, where cases are cited which meet nearly all of the exceptions.\nThere was no exception to the refusal of his Honor to give the instruction asked in defendants\u2019 first prayer for special instructions, and the instruction was not warranted by the evidence as stated in the case.\nIt seems that every exception taken by defendants is untenable, and has been so repeatedly held.\n-Judgment Affirmed.", "type": "majority", "author": "MacRaic, J.:" } ], "attorneys": [ "Mr. G. M. Bernard, for appellants.", "Mr. T. J. Jarvis, for appellees." ], "corrections": "", "head_matter": "F. M. SMITH AND WIFE v. ZACH. ALLEN et al.\nColor of Title \u2014 Evidence\u2014Lost Record.\n1. A deed, duly executed, probated and recorded,-by an attorney in fact is sufficient to show color of title, though the power of attorney be not produced.\n2. Where the original papers in a cause have been burned or lost, the minutes of the Court in which they were filed are admissible in evidence to establish the validity of the proceedings.\n:\u2022!. A deed to a person as trustee, who signs the same, if probated and registered as the deed of the grantor, is color of title, though not probated as to the trustee, the presumption being that it was accepted by the grantee therein.\n4. A deed of a trustee, although the privy examination of the cestui que trust was not taken, is good as color of title, even if the cestui que trust was a feme covert.\n\u25a0Civil actiox for trespass, tried at March Term, 1892, of Pitt Superior Court, before Bryan, J., and a jury.\nThe following issues were submitted to the jury:\n1. Are the plaintiffs the owners and in possession of the land in controversy?\n2. Have the defendants trespassed on the land of the plaintiffs?\n3. What damages have the plaintiffs sustained?\nThe jury responded \u201cYes\u201d to the first and second issues, and \u201cNineteen dollars\u201d to the third.\nThe plaintiffs offered, for the purpose of showing color of title, a deed from Richard E. W. Tyson, by his attorney in fact, Allen Tyson,-to Lemuel Tyson, dated August 22, 1836, which deed had been duly probated and recorded. Defendants objected to the introduction of this deed, on the ground that no power of attorney from grantor to Allen Tyson had been shown. His Honor held the deed to be sufficient for the purpose for which it was offered, and overruled the objection. Defendants excepted.\nThe plaintiff's, for a similar purpose, next offered a deed from Lewis Hilliard, Clerk and Master in Equity, to Sherrod Tyson, dated June 22, 1866. They also introduced the trial and minute dockets of the Court of Equity of Pitt County, from which it appeared that a petition for the sale of the lands of Lemuel Tyson had been filed and docketed; that a decree of sale had been made; that a report of sale had also been made to the Court, showing Sherrod Tyson to be the purchaser, and that a decree had been made and duly recorded in the minutes of said Court confirming said sale and directing said Clerk and Master to make title to the purchaser.\nE. A. Move, the Clerk of the Superior Court, was introduced, who testified that after diligent search in his office he had been unable to find the equity papers filed for the sale of said tract of land by said Clerk and Master; that he had searched all packages, bundles, boxes and papers, except the old papers marked \u201cState cases\u201d; those he did not search, and that he had been unable to find the original papers, and he was satisfied they were not in his office.\nDefendants objected to the introduction of the deed from Lewis Hilliard, and to the introduction of the dockets of the Court of Equity, in the absence of the original papers. Objection overruled, and the defendants excepted.\nPlaintiffs then offered a deed from Sherrod Tyson to W. A. Cherry, trustee, dated June, 9, 1866.\nTo this deed the defendants objected, because it had not been probated as to W. A. Cherry, the grantee therein, who, it seems, had signed said deed. Objection overruled, and defendants excepted.\nPlaintiffs then offered a deed from W. A. Cherry, trustee of Sophia Paul, to Thomas E. Randolph, dated January, 1868. To the introduction of this deed defendants objected, because it had not been probated as to Sophia Paul, by taking her privy examination. Objection overruled, and defendants excepted; his Honor holding that, in any view of the case, the foregoing deeds were sufficient to show color of title, that being the purpose for which they were offered.\nVerdict and judgment for plaintiffs, and appeal by defendants.\nMr. G. M. Bernard, for appellants.\nMr. T. J. Jarvis, for appellees." }, "file_name": "0223-01", "first_page_order": 255, "last_page_order": 258 }