majority"> WalKee,, J.,

after stating the case: The Court below properly admitted in evidence the report of the commissioners *271 as color of title. Tliis was not ail attempt to restore a burnt or lost record, but tbe report of the commissioners was a part of the original record in the cause. It was itself an original paper and it was not necessary to resort to parol or other evidence, such as a certified copy extant, to prove the contents of the original, as would be required in the case of a lost or burnt record. "When the Clerk was satisfied that the record was an original paper belonging to his" office and which should be spread upon its records and registered, under the order of the Court which appeared upon its face, it was not only within his authority, but it was his duty to file and record the paper. Greenlee v. McDowell, 39 N. C., 484; Harris v. McRea, 26 N. C., 81; Botelor v. State, 21 Md. (8 Grill & L), 383; State v. Morris, 84 N. C., 757. In Greenlee v. McDowell, supra, the Court says: “The plaintiff’s allegation is that, upon the loss of the records of the former suit, a copy of the original bill, properly certified by the Clerk, was filed without and against his consent; and that no copy has been served upon him. He further alleges, that the amendments upon it, and the entries upon the record, were made without his knowledge or consent. That the records and papers had been lost or destroyed, is stated by the plaintiff; and, in that case, it cannot be doubted that the Court, without or against the will of the plaintiff, had full power to order a copy of the original bill to be filed. That the copy filed was a correct one is not questioned.” It must be presumed in the ábsence of any proof to the contrary, that the Clerk duly recorded the report in his office and it was registered in accordance with the order of the Court. It is provided by the Eevisal, sec. 328 (Code, sec. 56), "that all original papers, once admitted to record or registry, whereof the record or registry is destroyed, may, on motion, be again recorded or registered, on siich proof as the Court shall require. But as the report- was recorded by the Clerk, upon satisfactory proof, and a duly certified copy was introduced *272 in evidence, it was competent, in the absence of any suggestion that the report was not genuine or had been forged. There was no such intimation, although it was open to attack by the defendants in the proper way. It had, on the contrary, every appearance of being the original report, duly certified by the Clerk of the County Court, to which it was returned, as having been confirmed and ordered to be recorded in his office and registered as required by the statute. It was color of title, as the Judge correctly held. Bynum v. Thompson, 25 N. C., 578; Smith v. Tew, 127 N. C., 299; Lindsey v. Beaman, 128 N. C., 189.

The motion to nonsuit was properly overruled. While the evidence is somewhat meagre, it was sufficient for the consideration of the-jury and tended to show an adverse possession in Susan C. Beaman for more than seven years under color, and, also, that she was seized in deed during the cov-erture, so as to entitle her husband to an estate by the courtesy at her death. This estate for his life suspended the operation of the statute of limitations, as a bar to the plaintiffs, during its continuance. There was some uncertainty as to when James Jones took possession of the land, and there was evidence that, whenever it was, Susan 0. Beaman was at the time a married woman, so that the statute did not run against her during her coverture. The charge of the ■ Judge to the jury is not-in the record, and we must assume that they were correctly instructed as to the law applicable to the case.

The parties having admitted that the title to the land was out of the State, and the jury having found, under sufficient evidence, that the plaintiffs and those under whom they claim, had acquired the title by adverse possession under color, and that the statute of limitations had not barred the plaintiffs* right of entry. There was no error in the judgment.

No error.

Citation profile

How this case has been treated — in progress