#### P. H. MOORE v. MARY JOHNSON et al.

(Filed 13 May, 1913.)

1. Deeds and Conveyances — Common S'ource — Unregistered Deeds —Color of Title.

Where the parties to an action to recover land claim from a common source, an unregistered deed of one of them is not color of title as against the other, a grantee for value, under a registered deed; it only becomes so from the time of its registration, and ripens the title after seven years adverse possession therefrom.

2. Deeds and Conveyances — Common Source of Title.

A common source of title is one appearing somewhere in the chain of paper title relied on by each party in an action to recover lands, and is not affected by the fact that theretofore it is claimed from different sources.

3. Deeds and Conveyances — Coverture—Joinder of Husband — Privy Examination.

A deed made by a married woman, without taking her privy examination and the j.oinder of her husband, is void.

*2674. Deeds and Conveyances — Registration—Notice—Bona Fide Purchasers — Interpretation of Statutes.

Where in an action to recover lands it appears that both parties are purchasers in good faith for value, one claiming by adverse possession under an unregistered deed as color, and the other under a prior registered deed, and both under a common source, no notice, however full and formal, will supply the place of registration, and the party claiming under the registered deed has the better title.

Appeal by plaintiff from Lyon, J., at September Term, 1912, of Wilkes.

This is an action for tbe recovery of 23 acres of land. The defendants are Mary Johnson and her children, Thomas Johnson and Walter Johnson. If Mary Johnson can successfully defend the action, plaintiff cannot recover against her code-fendants, her children, as they are in possession under her.

Plaintiff claimed title as follows:

1: Grant from the State to Richard Parker for 80 acres of land, dated 29 July, 1843.

2. Deed from Richard Parker to William Tedder, 1 June, 1830, and from William Tedder to'James Calloway, 16 April, 1844; the will of James Calloway, 30 December, 1878, appointing George II. Brown his executor, with power to sell his lands, in his discretion, to pay his debts, and make title to the same, and deed of George H. Brown, executor of James Calloway, to Wilson Moore, 8 April, 1880, registered 16 March, 1909, and deed from Wilson Moore to plaintiff, P. H. Moore, 12 January, 1901, registered 2 December, 1907.

There was some evidence that all these deeds, and the will, cover the land in dispute, and evidence to the contrary. There was also evidence of possession by plaintiff of the land for about twenty-four years before this suit was brought.

Defendant denied the plaintiff’s title and asserted title in herself, as follows:

1. Grant of the State' to Janies Fletcher, dated 17 April, 1799.

2. Deed from Janies Calloway to Jesse Anderson, dated 19 October, 1863, and registered 20 February, 1906.

*2683. Death of Jesse Anderson, leaving four children, (1) James Anderson, to whom Calloway conveyed; (2) Mary Anderson, who married John Johnson in 1880, he being still alive; (3) John Anderson, who died.twenty-five years ago intestate and without having married, and (4) Reuben Anderson, who conveyed his one-third interest in his father’s land to' plaintiff, P. H.' Moore, 14 March, 1891.

4. Deed from P. II. Moore and wife to James Anderson, dated 6 October, 1900, and registered 27 September, 1912.

5. James Anderson and his sister, Mrs. Mary Johnson, the defendant, partitioned their' lands and executed deeds accordingly, James Anderson conveying to Mary Johnson her. one-half share in severalty by deed dated 6 January, 1907', and registered 6 March, 1909.

■ 6. There was some evidence that the grant and deeds in defendants’ chain of title covered the locus in quo.

.The court, in its charge, made the case turn, first, upon the question whether the defendants’ deeds covered the land in dispute, instructing the jury, if they did, to answer the issue as to ownership in favor of defendants, and still to answer in that way if they found that plaintiff’s deeds did not cover the land, the burden being upon plaintiff to show that fact; but he further instructed them to answer the issue for the plaintiff if they found that his deeds covered the land and the defendants’ did not. The court then proceeded to instruct the jury as follows: “Both parties claim under James Calloway. They admit that at one time James Calloway owned the 150-acre tract and the 80-acre tract, and that he made a deed to the defendants or to those under whom the defendants claim, and that his executor made a .deed to Wilson Moore, under whom the plaintiff claims. Now, the deed of James Calloway to Jesse Anderson, under whom the defendant Mary Johnson claims, was made in 1863, and was registered in 1906. The deed from George Brown to Wilson Moore, under whom the plaintiff claims, was made in 1880 and registered 16 March, 1909, about three years after the deed to Jesse Anderson was registered. So there is no question in this case of adverse possession. The plaintiff, P. H. Moore, has not introduced 'any *269deed under wbicb be bas beld possession of the land for seven -years. While bis deed is seven years old, it only counts as color of title against Mary Johnson from the date of its registration, and that was in 1909, and not seven-years before the suit was brought (which was 3 March, 1908). In passing upon the issues in this case, you will not consider the quitclaim deed of James Anderson either as against him or any one else. The whole question turns on whether or not the James Fletcher grant and deeds to the defendants from'James Calloway, on down, cover the land in'dispute. If they do, the plaintiff is not entitled to recover; but if the defendants’ deeds do not cover the land in dispute, and if the deed from James Calloway to Jesse Anderson did not cover the land in dispute, the plaintiff would be entitled to recover, provided you find from the evidence, and by the greater weight of the evidence, -that the Richard Parker grant and the deeds introduced by the plaintiff do cover the land in dispute.”

The jury returned a verdict for the defendant, and plaintiff appealed, having assigned as error each instruction of the court, as above stated, and also the refusal of the court to give this instruction, requested by him in apt time: “If the jury find from the evidence that the plaintiff and those under whom he claims have been in the open, peaceable, and notorious possession of the land in controversy, holding the same adversely to the defendants for seven years prior- to the commencement of this action under color of title, such possession would ripen title in plaintiff, and the jury should answer the first issue ‘Yes.’ ”

IF. W. Barber for plaintiff.

II. A. Qranor and Wackett & Gilreath for defendant.

Walker, J.,

after stating the case: We do not see why the charge of the court was not correct under the rule, now well established by the decisions of this Court, that where the parties to the action claim from a common source of title, in this case James Calloway, the true title and right to recover depends, not upon color of title and adverse possession under it, but must be determined by reference to the date of registration *270of the deeds of tie respective parties. It was ield in Austin v. Staten, 126 N. C., 783, tiat in suei a case “an unregistered deed does not constitute color of title,” since tie passage of tie Acts of 1885, ch. 147 (Revisal of 1905, sec. 980). Tiis view of tie law was adopted in Janney v. Robbins, 141 N. C., 400, tie Court following tie decisions in Austin v. Staten, supra; Lindsay v. Beaman, 128 N. C., 189; Collins v. Davis, 132 N. C., 106, and Laton v. Crowell, 136 N. C., 380. Justice Hoke in Janney v. Robbins, referring to wiat iad been decided in Austin v. Staten, and its legal effect upon titles as a construction of tie Acts of 1885, ch. 147, Revisal, sec. 980, said: “Tie plaintiff, in Austin v. Staten, claimed under a deed to iimself from H. W. Staten and two otiers, dated 31 March, 1896, registered tie same day. Tie defendant claimed under a deed to iimself from tie same parties, dated 31 December, 1887, registered 31 May, 1897. It will be noted tiat tiere boti parties claimed from tie same grantor, and tie plaintiff’s deed, thougi dated nine years or more later tian tie defendant’s, iad been registered more tian a year prior to tie defendant’s deed. Tiere were questions of fraud involved in tie case, in no way material to tie point now considered. By tie express 'provisions of tie registration act, tie plaintiff on tie record and face of tie papers iad tie superior rigit, because iis deed iad been first registered. Defendant tien took the position tiat though iis deed, by virtue of tie registration act, was avoided as against plaintiff, yet tie same was good as color of title, and proposed to maintain iis title by showing occupation under iis unregistered deed for seven years. Tie court ield that to allow tiis would be in effect to destroy chapter 147, Laws 1885, and tiis we cannot do.” It will be observed tiat tie facts thus recited as those in Austin v. Staten are substantially the same as those we have before us in tiis record.

Tie Court, both in Janney v. Robbins and Collins v. Davis, expresses a very serious doubt as to whether tie Legislature intended to effect such a radical change, by tie Act of 1885, in tie law of color of title, as formerly declared, but tiis doubt was finally settled in Collins v. Davis, supra, by tie use of tiis language: “We therefore hold tiat where one makes a deed *271for land for a valuable consideration, and tbe grantee fails to register it, but enters into possession thereunder and remains thereon for more than seven years, such deed does not constitute color of title and bar the entry of a grantee in a subsequent deed for a valuable consideration who has duly registered his deed. Except in eases coming within this rule, the rights acquired by adverse possession for - seven years under color of title are not disturbed or affected by the act of 1885. To this extent we affirm the law as laid down in Austin v. Staten, supra. It is in harmony with the legislative purpose and policy incorporated into our laws by the act of 1885. The act intended to make secure and give notice of the condition of titles, and thereby prevent the evils existing under the law prior thereto, and must be construed with reference to this evil and in furtherance of the remedy,” which was afterwards approved in Janney v. Robbins, supra. The Court did say in both of these cases that the doctrine of color of title is not modified except to the extent stated, that is, where the parties claim from the same source of title and in cases coming strictly within the principle, and that when they do not so claim, but derive their alleged right from independent sources, the doctrine of color of title, with respect to an unregistered deed, still exists. The plaintiff argues, though, in his brief, that the parties in this case do not claim from a common source, and he seems to think that because the plaintiff introduced one grant from the State to Richard Parker for the 80 acres, and defendant a grant to James Fletcher for the 150 acres, both of which covered the disputed land, they claimed by independent titles. But not so, for the true title afterwards was acquired, or is presumed to have been acquired, by James Calloway, who thereby became, if we may so speak by analogy to a descent, the propositus of both parties, as they both introduced mesne conveyances to themselves from him and those under whom they claimed. The grants are of no importance, as there was no evidence of any better title than that presumed to have been held by Calloway, with which plaintiff connected himself.

It was upon the idea that, by the introduction of the grants it was shown that the parties claimed under different titles, *272and not from a common source, that plaintiff requested the instruction which was refused, and properly so, and his exceptions to the charge are all based upon the same erroneous view of the law. This is not a question of the lappage of two grants, though they may actually interfere with or overlap each other. The true title, so far as appears, came finally into James Callo-way, and we start with him and are not required to consider the Parker or Fletcher grants. It may be added, that neither of the parties is connected by mesne conveyances or otherwise with the Fletcher grant. The rulings of the court were all correct, unless it be that the plaintiff’s deed was color of title, and we have held that it was not..

The case was tried upon the theory that the pivotal question involved was whether the plaintiff’s deed, not having been registered until the year 1909, was color of title, the defendant’shaving been registered before that year and before the bringing of this suit, and upon this theory we decide it. There is no merit in the other question. A quitclaim deed from James Anderson to Wilson Moore, who conveyed to the plaintiff, can play no part in the case, as it appears that, at the time it was made Anderson had parted with his title, and the joinder in the deed of Mary Johnson, alone or without her husband, was void as to her, she being a married woman, and the joinder of her husband, with acknowledgment of both and her privy examination, being necessary to give efficacy to the deed. But plaintiff’s counsel admits that this, the second, exception becomes immaterial 'and the ruling unprejudicial in view of our holding as to the other assignment of error. The act of 1885 was intended, of course, to protect only bona fide purchasers for value and without notice, but there is no question of that sort in this ease. No .notice, however full and formal, will supply the place of registration. Robinson v. Willoughby, 70 N. C., 358; Blevins v. Barker, 75 N. C., 436; Quinnerly v. Quinnerly, 114 N. C., 145, and cases cited. Both parties appear to' have acted in good faith in buying the land, and-to have given value therefor, and the plaintiff loses unfortunately by his neglect to have his deed duly registered. There was no request for instructions, except as indicated. The only prayer *273raises the same question practically as the exception to the charge. We have considered the questions discussed in the brief of appellant, covered by his assignments of error, and have discovered no error in the trial.

No error.