Appeal by plaintiffs from Farmer, Judge. Judgment entered 4 December 1980 in Superior Court, Wake County. Heard in the Court of Appeals 8 December 1981.
Whichard, Judge. Judges Clark and Becton concur.
Plaintiffs instituted this action in June 1977 to recover possession of real property, alleging fee simple title in themselves and wrongful and unlawful possession by defendants. Defendants answered, alleging they purchased the property in 1964 from Wake County at a public sale for delinquent taxes and claiming that the judgment of Superior Court and the Commissioner's Deed pursuant thereto constituted color of title. The Commissioner's Deed indicated that Wake County had obtained the property upon failure of the owners, heirs at law of one Henry Sanders, to pay taxes; and that defendant Jackie Johns had been the last and highest bidder at the sale. As a further defense, defendants asserted that since acquiring the property they had erected a dwelling house thereon, and that plaintiffs' recovery thereof thus would constitute unjust enrichment. Defendants sought a judgment declaring the property described in their deed free and clear of plaintiffs' claims.
The court appointed a referee-surveyor to survey and map the property. At trial, without a jury, the surveyor testified for plaintiffs that the residence occupied by defendants was situated on the Isom Cook tract which had been conveyed to plaintiffs. He
further stated that the boundary description found in defendants' deed did not coincide precisely with the property in question and that the name of Henry Sanders, predecessor in title to the delinquent taxpayers through whom defendants claimed, did not appear in the files on the Isom Cook tract.
Plaintiff Allen Willis, Sr. testified that before he purchased the tract he had walked over it, had had the title searched, and had been satisfied with the title. Until the year of trial, he had paid taxes on the property. When he discovered that defendants were building a home on his property, he tried several times to contact defendant Jackie Johns and did, in fact, discuss the problem with him. Plaintiff Lucy G. Willis offered corroborative testimony.
Defendants' evidence tended to show that, in 1964, defendant Jackie Johns had purchased his tract of land, which included the property claimed by plaintiffs; that he had had it surveyed and marked; and that he had paid property taxes on it ever since. In October 1968, he had the basement of his house excavated on the disputed portion of his property, and he had a driveway constructed from the location of the house to the street. Johns could not recall talking to Allen Willis about the disputed portion until after his home had been completed and he had lived in it for approximately ten years.
The court found as facts that, in 1963, Wake County commenced a foreclosure action against the heirs at law of Henry Sanders for delinquent taxes on lands described in plaintiffs' complaint; that, in 1964, defendant Jackie Johns received a deed to lands completely encompassing plaintiffs' tract; that, in 1968, defendants commenced construction of their home by excavating for a basement; and that, while excavating, defendants received but ignored plaintiffs' warnings that defendants were on plaintiffs' property. It concluded that defendants acquired good and sufficient title only to that portion of the tract described in the tax deed which did not encompass plaintiffs' land; that, although the tax deed as to the portion embracing plaintiffs' land was defective and conveyed nothing to defendants, it did constitute color of title to plaintiffs' land; that defendants' possession of plaintiffs' land was for a period greater than seven years next preceding institution of this action; and that, by virtue of defendants'
adverse possession under color of title, fee simple title had vested in defendant Jackie Johns prior to filing of the lawsuit. The court decreed defendant Jackie Johns the fee simple owner and dismissed plaintiffs' complaint.
Plaintiffs contend the Commissioner's Deed, and the judgment of Superior Court from which it originated, did not contain a description of the land either certain in itself or capable of being made certain so that the deed would constitute color of title. While a commissioner's deed in a judicial sale constitutes color of title, G.S. 1-38(a) (Cum. Supp. 1981), a party who uses a deed to establish color of title must prove that the boundaries in the deed cover the land in dispute, Skipper v. Yow, 238 N.C. 659, 78 S.E.2d 600 ...