Northampton County NcArchives Court.....Richard Putney Sr., Jones & Jones V. 1819
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Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 February 5, 2009, 6:51 pm

Source: Nc Reports
Written: 1819

Den on the several Demises of Richard Jones and Tamerlane Jones v. Richard 
Putney, Sen.

From Northampton

November Term 1819

Colour of title. A Sheriff's deed, which recites the execution under which the 
lands in dispute were sold, as having been tested and signed by the deputy 
clerk, shall enure as colour of title. For although the Constitution declares, 
that all writs shall bear teste and be signed by the clerks of the respective 
courts, yet a writ of execution is not necessarily void because it bears teste 
and is signed by a deputy clerk; because the act of 1777, ch. 2, sec. 95, 
provides that in the event of the death of the principal clerk, the deputy 
shall sue out writs and other process.

William Jones, being seised of the lands in dispute, made his last will, duly 
executed to pass his real estates, and therein devised as follows, "I lend 
unto my son Richard Jones, during his natural life, and during his wife Sarah 
Jones's widowhood, all my lands lying on the north side of Burwell Gilliam's 
spring branch, and on the north side of the north prong of Canoe creek; and if 
the said Richard Jones should die without lawful issue, I give the above 
mentioned tract of land unto my grandson, James Johnston, to him and his 
heirs." The testator died in 1784, and Richard Jones, the devisee, took 
possession of the lands, and continued in possession until the summer of 1804, 
when Richard Putney, junior, recovered a judgment against said Richard Jones, 
in Northampton County Court, for £73 18 4, and costs of suit; an execution was 
issued thereon, directed to the Sheriff of Northampton, commanding him that of 
the goods and chattels, lands and tenements of said Richard Jones, he cause to 
be made the said debt and costs. This execution was levied on the lands in 
dispute, and at the sale, Richard Putney, senior, the Defendant, became the 
purchaser. The Sheriff executed to him a deed for the lands, and he entered 
and took possession, and hath retained possession ever since. Richard Jones, 
the devisee, died in 1812, intestate, and the lessors of the Plaintiff were 
his issue, and only heirs at law.

At the time the execution issued, Eaton Haynes was the clerk of Northampton 
County Court, and Richard W. Freear was his deputy. The execution was tested 
by Richard W. Freear, "deputy clerk," and signed by him as deputy clerk. The 
Sheriff's deed recited the execution as "tested by Richard W. Freear, deputy 
clerk." The questions made upon the trial of the case were, 1st. Whether 
Richard Jones took an estate for life, or in fee, under the will? and 2d. 
Whether, if he took an estate in fee, the title was divested out of him and 
vested in the Defendant, by virtue of his possession and the colour of title 
accompanying it? The case was sent by consent to this Court.

Mordecai, for the Plaintiff.
Hall and Murphy, (who sat for Judge. Henderson), Judges, declined giving any 
opinion upon the first question made in this case. Upon the second question, 
they were of opinion that the Sheriff's deed to Putney was colour of title, 
and he having had seven years possession under it, the right of entry in the 
lessors of the Plaintiff was barred.

Taylor, Chief-Justice: The questions arising in this case are, whether Richard 
Jones acquired a fee simple in the land under the will of his father, William 
Jones; and if he did, then whether the title was divested out of him and 
vested in the Defendant by virtue of his possession and the colour of title 
accompanying it. It is impossible to read the will, and to doubt that the 
intention of the testator was to give to Richard Jones an estate for his life 
only. It is equally clear that he intended no benefit to be enjoyed under the 
devise to his grandson, James Johnson, as long as there were any issue of 
Richard Jones remaining. This was the general intent, to which the other, the 
particular intent, must give way, where it is impossible to reconcile them. 
That cannot be done in this case, for the issue of Richard Jones can only take 
by a descendible estate being vested in their ancestor: and in giving this 
construction to the will, the Court do no more than the testator himself would 
probably have done, had he been aware that his general object could not have 
been attained, without giving up his particular intent. If the issue were held 
to take by purchase, then, upon the death of one, his share would go over to 
James Johnston; which certainly was not intended by the testator. This 
consideration, when coupled with the act of 1784, ch. 22, shews clearly that 
Richard Jones was tenant in fee simple of the land sued for.

The objection made to the colour of title set up by the Defendant is, that the 
Sheriff's deed recites the execution under which the land was sold, as having 
been signed by the deputy clerk, and being, therefore, void upon the face of 
it, could not enure as colour of title. One general ground, on which it has 
been held that a colour of title is necessary, where a party relies upon the 
statute of limitations is, that the act did not intend to protect those, who 
knowingly took possession of another's lands, and sought to acquire a title by 
continuing a trespasser for seven years. Whether that principle be correct, or 
whether a person can in any case fortify his possession by a colour of title, 
which purports on its face, that the alienor had no right to convey the land, 
I leave as questions to be settled as they arise. But I think it may be 
affirmed, without hazard, that a deed may operate as colour of title which 
does not necessarily purport the want of authority in the seller to convey, or 
which may in truth be consistent with such an authority. A man purchasing at a 
Sheriff's sale, under an execution issuing from his own judgment, may be 
thought prima facie, to have reasonable ground to believe that the Sheriff has 
a right to sell; and this presumption ought to remain, at least, until he is 
instructed by the Sheriff's deed, that the authority to make the sale was void 
under all its circumstances. If any case can be stated, wherein the execution 
might be signed by the deputy clerk, it may be intended that the purchaser 
believed that case to have happened, when he received a deed from the Sheriff. 
It makes no difference, that it now appears to the Court, that such a case had 
not happened, for the enquiry turns not upon the fact, but upon the 
purchaser's belief. Such a case is provided for by Laws 1777, ch. 2, Sec. 95, 
and there is nothing to bring home to the purchaser, a knowledge that the 
principal clerk was alive, at the issuing of the execution. This case, 
therefore, is not to be distinguished from that of a person, who enters upon 
the possession of land, believing that he has a right to do so; and as he 
claims under a deed, which, for anything appearing to the contrary, announced 
to him the rightful exercise of an authority in the Sheriff to sell, it must 
amount to a colour of title. 

Upon both grounds, therefore, I think there ought to be judgment for the 
Defendant.


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