“Color of Title”… NC Civil procedure goodies

“Article 4 – Limitations, Real Property.

§ 1-35.  Title against State.

The State will not sue any person for, or in respect of, any real property, or the issue or profits thereof, by reason of the right or title of the State to the same –

(1)        When the person in possession thereof, or those under whom he claims, has been in the adverse possession thereof for thirty years, this possession having been ascertained and identified under known and visible lines or boundaries; which shall give a title in fee to the possessor.

(2)        When the person in possession thereof, or those under whom he claims, has been in possession under color of title for twenty-one years, this possession having been ascertained and identified under known and visible lines or boundaries. (R.C., c. 65, s. 2; C.C.P., s. 18; Code, s. 139; Rev., s. 380; C.S., s. 425.)”

Notice “title in fee to the possessor”. This means absolute title, unencumbered ownership. If you are on land for 30 years, it is yours and the state can’t do anything about it. If you have a deed of trust for 21 years, the state cannot bring suit for ownership of the property. There goes the eminent domain theory!

“§ 1-36.  Title presumed out of State.

In all actions involving the title to real property title is conclusively deemed to be out of the State unless it is a party to the action, but this section does not apply to the trials of protested entries laid for the purpose of obtaining grants, nor to actions instituted prior to May 1, 1917. (1917, c. 195; C.S., s. 426.)”

So, if title can be presumed out of State, but is in North Carolina, what does that make the meaning of “In this State” that you read all the time in General Statutes? If it were not in North Carolina, why would there need to be mention of it in the NCGS? How COULD there be? “In this State” likely means “under jurisdiction/voluntary submission to this authority”. Something can be in North Carolina, but not be “In this State”. Look up “State”.


“§ 1-37.  Such possession valid against claimants under State.

All such possession as is described in G.S. 1-35, under such title as is therein described, is hereby ratified and confirmed, and declared to be good and legal bar against the entry or suit of any person, under the right or claim of the State. (C.C.P., s. 19; Code, s. 140; Rev., s. 381; C.S., s. 427.)”

And look at this:

“§ 1-38.  Seven years’ possession under color of title.

(a)        When a person or those under whom he claims is and has been in possession of any real property, under known and visible lines and boundaries and under color of title, for seven years, no entry shall be made or action sustained against such possessor by a person having any right or title to the same, except during the seven years next after his right or title has descended or accrued, who in default of suing within that time shall be excluded from any claim thereafter made; and such possession, so held, is a perpetual bar against all persons not under disability: Provided, that commissioner’s deeds in judicial sales and trustee’s deeds under foreclosure shall also constitute color of title.”

(Trustee’s deed, or deed of trust– wikipedia says: http://en.wikipedia.org/wiki/Trust_deed_%28real_estate%29)

After seven years, your possession of the property has given you a claim to it. If you have possession but not color of title, this doesn’t apply to you. If you have color of title but no possession, this doesn’t apply to you. Is this why you should never leave a house when threatened with foreclosure? You certain rights simply because of possession.

To clarify some of those terms:

“Disability. In the acts of limitation it is provided that persons lying under certain disabilities, such as being non compos, an infant, in prison, or under coverture, shall have the right to bring actions after the disability shall have been removed.”

“Disability” simply means anything preventing a person from enforcing his/her claim of title.

“Non compos” means incompetent.

“Coverture” means the legal state of a married woman. It used to be that men had primary rights over all property in a marriage.

And the biggie:

“Color of title.    The appearance, semblance, or simulac­rum of title.    Also termed “apparent title.”    Any fact, extraneous to the act or mere will of the claimant, which has the appearance, on its face, of supporting his claim of a present title to land, but which, for some defect, in reality falls short of establishing it. Howth v. Farrar, C.C.A.Tex., 94 F.2d 654, 658. That which is a semblance or appearance of title, but is not title in fact or in law.    McCoy v. Lowrie, 42 Wash.2d 24,    253    P.2d    4 1 5,    4 1 8.    Any    instrument    having    a grantor and grantee, and containing a description of the lands intended to be conveyed, and apt words for their conveyance, gives color of title to the lands described.    Such an instrument purports to be a con­veyance of the title, and because it does not, for some reason, have that effect, it passes only color or the semblance of a title.”

I liked that one. So, if you signed a mortgage, the deed is encumbered by it; it is not perfect title. It does serve as color of title though- it is evidence of ownership in some sense of the word. Grantees named in the mortgage also have color of title– you basically granted them a lien on your property. That is the defect that makes it “color of title” versus actual title.

The Trustee or the mortgagee, depending on the type of instrument you signed when you bought your land/house, has legal title. You have “equitable title”.

The great and powerful Wiki says:

“Equitable versus legal title

At common law equitable title is the right to obtain full ownership of property, where another maintains legal title to the property. Legal title is actual ownership of the property. When a contract for the sale of land is executed, equitable title passes to the buyer. When the conditions on the sale contract have been met, legal title passes to the buyer in what is known as closing. Legal and equitable title also arises in trust. In a trust, one person may own the legal title, such as the trustees. Another may own the equitable title such as the beneficiary.”

So you and the grantee both have title to some extent. You, however, also have possession and use. I believe this seven-year clause would apply to anyone who possesses the land for seven years and is referred to in the correct paperwork.

I will admit my head hurts after reading all of this. It is a complex thing, and I am learning a lot by researching it well enough to try to explain it.

What are your thoughts?

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