#### UNITED LUMBER COMPANY v. H. B. PEARCE.

(Filed 7 October, 1914.)

1. Tax Deeds — Recitations—Interpretation—“Color” of Title.

It is unnecessary tbat a tax deed to lands made by tlie sheriff should recite in specific words that the lands were sold for taxes to constitute color of title for the purchaser in possession, when it i's perfectly apparent from its context and easily inferred from language used that the lands were thus sold; and it is held to be sufficient that the deed describes the lands, recites the date of sale, that it had not been redeemed, and that the holder of the certificate of purchase has complied with the laws of the State necessary to entitle him to a deed for the lands.

2. Tax Deeds — Descriptions—Identification—Parol Evidence.

A sheriff’s deed to land sold for taxes recites: “The following described real estate was sold, towit, a tract of 166 acres of land lying in S. Township, adjoining J. W. V., deceased, J. R., and others, being a part of the lands belonging to the estate of W. J. B., deceased.” Held, the description was sufficiently definite to admit of parol evidence of identification of the lands; and further, it was also competent to show by parol whether J. J. B. and W. J. B. are identical.

*5893. Equity — Cloud Upon Title — Tax Deeds — “Color” of Title — Payment of Taxes — Burden of Proof.

In an action brought to remove a tax deed as a cloud upon title to lands, the defendant as purchaser under such deed being in possession, it is necessary for the plaintiff to prove that the taxes upon the land for which it had been sold had been paid by him, as well as his own paper title.

Appeal by defendant from Peebles, J., at February Term, 1914, of JOHNSTON.

Tbis is a civil action brought to declare a certain deed hereinafter set out void and as a cloud upon the plaintiff’s title. Upon motion of the plaintiff, his Honor, upon the allegations contained in the pleadings, adjudged “that said sheriff’s deed is void, but that .it constitutes a cloud- upon the plaintiff’s title, and to this end this judgment is ordered to be recorded in the registry of Johnston County as a cancellation of said sheriff’s deed.” The deed referred to is as follows:

Noeth CAROLINA — Johnston County.

Whereas, at a sale of real estate made in the county aforesaid, on 5 May, 1902, the following described real estate was sold, to-wit: A tract-of 166 acres of land lying in Selma Township, adjoining the lands of J. W". Vick (deceased), Jackson Eaines, and others, being part of the lands belonging to the estate of W. J. Barrow, deceased; and whereas the same not having been redeemed from such sale, and it appearing that the holder of the certificate of purchase of said real estate has complied with the law of North Carolina necessary to entitle him to a deed for said real estate: Now, therefore, know ye that I, J. T. Ellington, sheriff of said county of Johnston, in consideration of the premises and by virtue of the statutes of North Carolina in such case provided, do hereby grant and convey unto H.-B. Pearce, his heirs and assigns forever, the said real estate hereinbefore described, subject, however, to any redemption provided by law.

Given under my hand and seal, this 3 September, 1903.

J. T. Ellington,

Sheriff, [seal]

The defendant appealed from the judgment rendered.

*590 L. II. Allred and F. II. Brooks for plaintiff.

J. D. Parker, Abell & Ward for defendant.

Beoww, J.

1. It is admitted in tbe pleadings tbat J. J. Barrow was tbe owner and seized in fee simple of tbe land in controversy at tbe time it was sold for nonpayment of taxes. Wbetber J. J. Barrow and ~W. J. Barrow are identical does not appear, and it may be a matter open to explanation by parol evidence.

It is further alleged in tbe answer tbat tbe defendant purchased tbe lands at tbe sheriff’s sale for taxes on 5 May, 1902, and tbat the defendant has since been in actual possession of tbe same continuously to tbe present time, claiming tbe same under tbe said deed. His Honor held tbat tbe deed was not color of title and tbat it was void on its face. In this ruling we think tbe learned judge was in error. A tax deed regular upon its face is color of title, when describing tbe land with sufficient certainty. Greenleaf v. Bartlett, 146 N. C., 496.

Color of title, as has often been -said, is tbat which purports on its face to be a good title, but in fact is not. It is a writing upon its face professing to pass title, but which does not do it, either from want of title in tbe person making it or tbe defective mode of conveyance tbat is used. It must not be plainly and obviously defective, so much so tbat no man of ordinary capacity should be misled by it. Tate v. Southard, 10 N. C., 119; Smith v. Proctor, 139 N. C., 323.

Tbe Supreme Court in tbe case of Greenleaf v. Bartlett, supra, after citing Neal v. Nelson, 117 N. C., 393, approves this language:

> “These authorities, and many others which might be added, show tbat tbe trend.of judicial opinion is towards tbe reasonable view tbat a purchaser tbat has paid tbe price for which be bought, wbetber from a public officer at auction sale or from an individual contractor, if be is in tbe occupation of tbe land bought, bolds it adversely to all tbe world under any writing tbat describes tbe land and 'defines tbe nature of bis claim.”

Tbe deed in question is not so obviously void on its face tbat a person of ordinary intelligence would discern tbat it passed *591no title. It is true tbat it fails to recite in specific words that the lands were sold for taxes, but that is perfectly apparent from its context and is easily inferred from the language used. It describes the land, recites the date of sale, that the same has not been redeemed, and that the holder of certificate of purchase has complied with the laws of the State necessary to entitle him to a deed for the land. These recitals indicate plainly that the lands were sold for the taxes and that the purpose of the deed by the sheriff is to convey the title to the purchaser.

2. It is contended that the description is not sufficiently definite and that, therefore, the deed is void. We think the description is amply sufficient to allow the introduction of parol evidence for the purpose of identifying the land. Many cases have been before the courts where it has been necessary to decide upon the sufficiency of a description contained in a written instrument to admit of extrinsic evidence to locate the land. They are too numerous to review. A very full discussion of the subject by the learned Chief Justice Smith is to be found in Farmer v. Batts, 83 N. C., 387. In that case the description in the paper-writing was, “93 acres, more or less, it being the interest in two.shares adjoining the lands of James Barnes, Eli Eobbins, and others.” See, also, Moore v. Fowle, 139 N. C., 51, and cases cited.

3. The learned judge overlooked the statutory requirement, or else failed to give force and effect to it, that as a condition precedent to contesting the title carried by a sheriff’s deed, the contestant must show that the taxes have been paid, as well as make out the prima facie title in himself. The latter requirement is fulfilled only when the plaintiff connects itself by proof with the title of J. J. Barrow, who, it is admitted, owned the land. When his Honor rendered judgment upon the pleadings and declared the defendant’s tax deed void, he relieved the plaintiff of the necessity of proving that the taxes upon the land, for which it was sold, have been paid.

It is true that this Court has decided in Beck v. Merony, 135 N. C., 533, that in an action to set aside'a tax deed as a cloud on title it is not necessary that the complaint allege that all the *592taxes bad been paid, but tbat ease expressly decides tbat evidence of tbat fact must be introduced on tbe trial.

In Moore v. Byrd, 118 N. C., 688, it is said: “Since tbe statute makes tbe sheriff’s tax deed prima facie evidence of title, tbe purchaser, as plaintiff in ejectment, is entitled to recover upon proof of tbe tax deed conveying tbe land, if the defendant introduced no evidence of bis' title and of bis having paid tbe taxes for which tbe land was sold.

In McMillan v. Hogan, 129 N. C., 314, it is again held tbat, before successfully contesting a title under a tax deed, tbe contestant must prove tbat be has paid tbe taxes for which tbe land was sold. See, also, McNair v. Boyd, 163 N. C., 478.

For tbe reasons given, we think bis Honor erred in rendering judgment upon tbe pleadings. Tbe judgment is set aside and tbe cause remanded, to be proceeded with in accordance with this opinion.

Reversed.