#### JOHN L. ROPER LUMBER COMPANY v. RICHMOND CEDAR WORKS and DISMAL SWAMP RAILROAD COMPANY.

(Filed 25 February, 1914.)

1. Limitations of Actions — Tenants in Common — Partition—Color of Title — Adverse Possession.

An allotment of lands to a tenant in common under a judgment in proceedings to partition them among all of.the tenants, purporting to allot to each tenant his share of the entire estate in severalty, is color of title as to the share allotted or purparty, and seven years adverse possession of such tenant thereunder, or those claiming under him by deeds, will ripen the title thereto.

2. Limitations of Actions — Foreign Wills — Defective Probate — Color of Title.

A will purporting to devise certain lands, sufficiently, describing them, is color of title, though made in another State and defective as to the probate here.

Appeal by defendant from Bragaw, J., at July Term,, 1913, of CAMDEN.

This is an action to recover damages for trespassing upon land known as the Whitehead tract, and being Lot No. 12 in the New Lebanon Division. The same ease was before us at a former term, and is reported in 158 N. 0., 161, and involved the claim of the defendant to' an easement or right of way over the land,- for the purpose of operating’ a tramroad and hauling lumber thereon over and across said land. We then denied the existence of any such right, defendant admitting that plaintiff owned the land. Defendant has since amended its answer and set up title to' Lot No. 12, and plaintiff cannot recover for the alleged trespass unless he has' shown a title to the same, giving him constructive possession thereof, which it has attempted to do, and, as we think, has succeeded in doing.

The-sole claim of plaintiff, in view of the restrictive charge of the court, is that it has acquired title by color and seven years adverse possession. We are confined to the decision of this one question, as the case was so submitted to the jury, although *84plaintiff seems to have insisted upon bis title to tbe land as established by an open, adverse, and continuous possession, under a claim' of right, for twenty years prior to tbe bringing of tbe action. Plaintiff introduced in evidence tbe record of tbe New Lebanon Division-, which shows that Lot No. 12 was allotted to W. B. Whitehead, and by mesne conveyances tbe plaintiff has acquired bis title. 'The defendant alleges that tbe parties to that partition, or some of them, claimed as devisees of Josiah Riddick, of Soldiers’ Hope, in Nansemond,County, Virginia, whose will has never been properly probated and recorded in this State, where tbe land in controversy is situated. We think it would be unprofitable to enter upon an examination of this contention for tbe purpose of deciding whether it is a valid will or whether it has been properly proved ánd recorded here or not, as our decision can well be made to turn upon another feature of tbe case. If it be granted that tbe will is not valid and sufficient in this State to pass tbe land devised in it because of tbe defective probate, tbe plaintiff has made out bis case in another way, not connected with the will, as a valid instrument, and not, therefore, dependent upon its validity, for, as stated, it has shown in evidence a partition of tbe lands in 1846, between William B. Whitehead and the devisees of Josiah Riddick, Lot No. 12 having been set apart to William B. Whitehead, and plaintiff having acquired whatever title Whitehead got in this division by mesne conveyances from him. It seems that there had been a previous partition between Mills and Josiah Riddick and others in 1817, known as the New Lebanon Division, by which certain lands, embracing those now in dispute, were allotted to Mills and Josiah Riddick. Mills Riddick conveyed his interest to William B. Whitehead, between whom and the devisees of Josiah Riddick, claiming under the will above described, the division in 1846 was inade by the court. Defendant appealed.

W. B. Rodman, A. D. McLean, and J. K. Wilson for plaintiff.

Ward & Thompson, Charles Whedbee, Starhe .& Tillitt, and Winston & Biggs for defendant.

*85"Waleier, J\,

after stating tbe case: Tbe question now presented for our decision is, wbetber tbe partition of 1846 and tbe allotment to 'William B. Whitehead and the deeds of those claiming under him are, in law, good color of title, for tbe jury have found that plaintiffs have bad adverse possession of tbe land for a sufficient time to ripen their title, provided we settle tbe other question in their favor. We are aware that this Court has held that a deed by one tenant of tbe entire estate held in common is not sufficient to sever tbe-unity of possession by which they are bound together, and does not constitute color of title, as tbe grantee of one tenant takes only bis share and “steps into bis shoes.” In such case, twenty years of adverse possession, under a claim of sole ownership, is required to bar the entry of the other tenants, under the presumption of an ouster from the beginning raised thereby. Cloud v. Webb, 14 N. C., 317; Hickes v. Bullock, 96 N. C., 164; Breeden v. McLaurin, 98 N. C., 307; Bullin v. Hancock, 137 N. C., 189, and Dobbins v. Dobbins, 141 N. C., 210, where the other cases are collected.

We are not inadvertent to the fact that this State stands alone in the recognition of this principle, the others holding the contrary, that such a deed is good color of title (1 Cyc., 1078 and notes) ; but it has too long been the settled doctrine of this Court to- be disturbed at this late day, as it might seriously impair vested rights to do so. It should not, though, be carried beyond the necessities of the particular class of cases to which it has been applied, but confined strictly within its proper limits; otherwise we may destroy titles by a too close attention to technical considerations growing out of this particular relation of tenants in common, and more so, we think, than is required to preserve their rights. This view has, within recent years, b@en thoroughly sanctioned by the Court.

It has been held that where less than the whole number of tenants join in a proceeding to sell the common estate for partition, and the same is sold, a deed made under order of the court to the purchaser is color of title, and seven years adverse *86possession thereafter by him under the deed will bar the coten-ants who were not parties. Amis v. Stephens, 111 N. C., 172 (opinion by the present Chief Justice), citing The Code, secs. 141, 148; McCulloh v. Daniel, 102 N. C., 529, and Johnson v. Parker, 79 N. C., 475.

Tt will be found in the case first cited that there were tenants who were not made parties to the proceeding at law, and yet they were held to be barred by the adverse possession of seven years’; and this was because the court attached importance to the fact that the deed had been made under a decree in a judicial proceeding which closely resembled one made by a stranger to. the title held by the cotenants. Only a part of the estate held in common was sold for partition, but the parties to the proceeding claimed the entirety in that part, or purparty, as it is technically called. The case strongly resembles this one, in that the proceeding was brought to divide 70 acres of a larger tract among the heirs of B. D. Paylor, who had purchased the’ same presumably under an order in a proceeding in equity for the partition of the larger tract. The plaintiffs alleged that they had not been made parties to ’the last mentioned proceeding, and sued to recover their interest in the tract of 70 acres from the defendants, who had bought the same at the sale thereof in the proceeding for its partition. The Paylor heirs claimed the entire interest in the 70 acres, as did "Whitehead and the Riddicks in the land partitioned in 1846, and this Court held that the deed for.the 70 acres to the purchaser was color of title, and seven years adverse possession thereunder barred the cotenants not made parties to the first partition or to the second, and the case was approved in Ferguson v. Wright, 113 N. C., 537, the distinction being made that the title derived under the court proceeding purported to be adverse to' all of the ’tenants, the land having been sold as an entirety, in disregard Of any community of estate. This being equivalent to a dis-seisin, it followed that seven years adverse possession barred under the statute.

The only difference between that case and this one is, that here there was an actual partition, and Lot No. 12 was allotted *87to Whitehead in the partition, instead of being sold and conveyed to. him as a purchaser thereof at a sale for partition. But there is no difference in principle between the two, for in both the Oourt deals with the entire interest, .the rights of the cotenants being ignored by not making them parties. If they are barred in the one ease, there is no valid reason why they should not be in the other.- In deciding this question, though, the proceeding at law is to be regarded as having the force and effect that a deed of one not connected with the tenancy would have. It purports to sever the relation of all the cotenants, whether it does so in law or not, at the time, as against those tenants not made parties to it.

In this case the court divided the land among the devisees of Josiah Riddick and William B. Whitehead, as the sole owners thereof. All the devisees of Riddick were parties, as appears by the record, as the division is said to have been made among them. The proceeding professes to pass the entire interest in the land, and not merely the purparties of some of the coten-ants. It comes manifestly within the definition of color in McConnell v. McConnell, 64 N. C., 342, which is stated to be, not a writing which in law passes the title, but one which professes to do so, but fails in that respect, either .from want of title in the person making it or from the defective mode of conveyance employed, with this qualification, that the defect must not be so obvious that a man of ordinary capacity could not be misled by it, excluding, though, from our consideration the presumption generally applicable, that every man knows the law.

McCormell’s case, in which Justice Rodman delivered a most lucid opinion, has often been approved by this Oourt, notably in Greenleaf v. Bartlett, 146 N. C., 495 (opinion by Justice Connor), where the authorities are collected. The Oourt there adopted the dissenting views of Chief Justice Taney and Justice Catron in Moore v. Brown, 11 How. (U. S.), 414, where it is said: “If every legal defect in the title papers of a purchaser in possession, as they appear on the record, may be used against him after the lapse of seven years, the law itself is a nullity and protects nobody. The statute has no reference to *88titles good in themselves,. but was intended to protect apparent titles void in law, and supply a defense where none existed without its aid. Its object is repose. It operates inflexibly and on principle, regardless of particular cases of hardship. The condition of society and the'protection of ignorance, as to what the law was, required the adoption of this rule. The law should be liberally construed.”

If we adopt this principle and apply it to the facts of our case, it follows, we think, that the Whitehead allotment, as well, as the will of Josiah Riddick, is color of title; the allotment, because the proceedings at law in-which it was made profess to operate upon the entire estate in the land as being in the coten-ants named therein; and the will, because if defectively probated, it is not a whit more defective than was the will of John McConnell, which was held to be good color of title; it is really less defective, and is more apt to mislead a man of ordinary capacity, for we may go further and say that a very serious question has been presented to us, as to whether the probate is not a valid one, though we do not decide it.

There are other considerations which, perhaps, would lead us to the same conclusion we have reached, but they need not be stated, as those already mentioned are quite sufficient to support the judgment. The other assignments of error are based upon a view of the law contrary to the one we have adopted, and' must consequently be overruled. The jury have found that plaintiff has had sufficient adverse possession of the land in dispute fori seven years under color to bar the defendant’s right, if they ever had any, and as the State has parted with the original .title, judgment was properly entered in favor of the plaintiff, upon the verdict.

No error.

BeowN, J., did not sit.