Both attorneys and surveyors use the phrase “color of title” frequently, and the standard textbook definition is quoted in countless court opinions. An attorney friend once jokingly described it as “When I see it, I recognize it,” but he then went on to admit that this issue is much more complex than a quick one-liner.
At first glance, this would seem to be a topic more suited to the attorney than to the surveyor, but study of color of title issues provides an unexpected benefit to the surveyor--an understanding of the documents discovered through the research process may prevent the surveyor from landing in serious trouble.
H. Campbell Black describes the basic concept of color of title in the following manner:
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, but because it does not, for some reason, have that effect, it passes only color or the semblance of a title. It makes no difference whether the instrument fails to pass an absolute title because the grantor had none to convey, or had no authority in law or in fact to convey one, or whether such want of authority appears on the face of the instrument…1
Color of title has also been described as a shadow of title, rather than the substance of title. Like the shadow of a physical object, the shadow of a title echoes the shape of the original but does not constitute the reality.
As opposed to more commonly applied doctrines such as adverse possession, court decisions determining precisely which documents constitute color of title (or the more antiquated term “colourable title”) vary significantly by jurisdiction, making it difficult to state specific requirements for a general article. Statutory law of individual states may (or may not) provide a precise definition of color of title. Furthermore, the list or irregularities that may cause deeds or other documents to be found void or voidable is dauntingly large--a partial list of documents that may be called into question (but could still provide color of title) would include (but not be limited to):
• Deed executed by purported power of attorney
• Forged deeds
• Condemnation proceedings
• Deeds from a commissioner of highways
• Sherriff’s deeds (when based on a void judgment)
• Grants from the state made for relief of title-holders whose documents were destroyed by the burning of a county courthouse.
• Unregistered deeds (some states)
• Deeds deemed void due to lack of adequate description.
As discussed in my November 2011 column (“Just a Mere Survey?”), an unrecorded survey taken alone will not generally be considered sufficient to either start or interrupt an adverse possession claim. Surveyors should note that, according to the definition quoted above, an unrecorded survey by itself will not normally confer even a color of title, for although a survey would adequately describe the lands in question, it generally would not include words of conveyance. Nor does a survey generally show evidence of execution by the grantor, evidence of delivery, and/or acceptance by the grantee, all of which may be required depending on individual statute. Virginia is representative of this opinion, as discussed in the Virginia Law Review:
The case of Sulphur Mines Co. v. Thompson … is more definite, and holds, that “Color of title necessarily implies that the party relying upon it must claim under something that has the semblance of title. A private survey and map, never recorded, nor referred to or made a part of the deed under which the party relying on it claimed, cannot be considered color of title.” [Cites omitted]2
Although the great majority of case law regarding color of title (and the balance of this article) deals with some form of document purporting to convey title, such as deeds, wills, bonds or contracts for sale of land, it should be noted that a few sources indicate that, in very limited situations, color of title may be proven by parol evidence, public record, or physical acts by the claimant combined with some claim of title. One might wonder in this context whether a recorded plat--called for in deeds of adjoining property owners (which would imply constructive notice to the public of the existence of the plat)--would create color of title. This would appear at best to be a risky assumption, according to the Idaho court system:
Stafford cannot maintain a color of title argument as he has failed to present evidence of any written instrument which purportedly gave him title to the portion of Lot 16 which is the subject of this action. Stafford offers only that the Owyhee Subdivision plot map reflects a twenty foot right-of-way adjacent to the cement irrigation ditch on Lot 16. The argument is unavailing to Stafford because the Owyhee Subdivision plot map is not an instrument of conveyance…3
When dealing with adverse possession claims, there is an important distinction to be made between the concepts of “claim of title” and “color of title.” A claimant may perfect an adverse possession claim and win fee simple title to a tract of land without any recourse to color of title; however, his “claim of title” in such cases will be restricted to only that property constructively possessed by a fence, residence or by some other physical evidence of possession.
The surveyor should be aware that “color of title” serves both to describe the extent of the claim and to limit what lands are being possessed under claim of title--the limits of the claimant become co-extensive with the limits of the document. For example, if a claimant has fenced and maintained only 5 acres, but is occupying the land in question under color of title by virtue of a recorded tax deed describing 12 acres, his constructive possession of the 5-acre portion will generally be interpreted as possession of the entirety of the 12 acres described in the tax deed. This principle appears to be well-established in most states. However, remember that a deed cannot be utilized to prove color of title over lands that lie beyond those described by the deed.
An interesting twist may occur when an individual holds clear title to tract “A” and also possesses color of title to the adjoining tract “B.” In such cases, the owner of “A,” if in continuous open and notorious possession of “A,” may sometimes apply that possession to tract “B.” This principle applies only if the two tracts share a common boundary; any gap between the two will generally negate the presumption.
A collateral question when dealing with color of title is that of “good faith” on the part of the claimant; in other words, has the claimant been put on notice that the document in question is void, contrary to established law, or that it conveys no title? Notice could take many forms, including (but not limited to) information on the face of the document, knowledge of an outstanding paramount title or some circumstance by which a jury could infer notice. In one Arkansas opinion, although there was an obvious title issue on the face of a tax deed, the assurance by an attorney that title issues on the subject parcel had been cleared up was presumed to show that the claimant could reasonably demonstrate good faith in his ownership.
The state courts are not unanimous in their approach to this issue. Although many states have adverse possession statutes worded so as to include a good faith requirement, several states (including Virginia, South Carolina, Florida, Maryland, Connecticut and Montana) do not appear to enforce this principle by statute. Of those states lacking such statutory authority, most (if not all) apply some form of good faith requirement through common law principles; however, the precise requirements to show good faith (or lack thereof) vary somewhat.4,5,6
The U.S. Supreme Court provides a lengthy discourse on the issues of color of title and good faith in the case Wright v. Mattison. According to that ruling, color of title is a matter of law, to be decided by the courts, but whether claim of title was made in good faith is a question of fact to be determined by the jury. In this case, the Illinois court (erroneously) included instructions to the jury that made it clear the issue of good faith had already been determined by the court; the U.S. Supreme Court reversed the circuit court decision and demanded a new trial.
The same case also stated as a general principle that, although defects on the face of the document may clearly show the document to be void, such evidence does not prove absolutely a lack of good faith on the part of the grantee claiming title from the document.
What is color of title is matter of law, and when the facts exhibiting the title are shown, the court will determine whether they amount to color of title. But good faith in the party in claiming under such color is purely a question of fact, to be found and settled as other facts in the cause. We can entertain no doubt in this case that the auditor’s deed to the purchaser at the tax sale is color of title in Woodward, in the true intent and meaning of the statute, and without regard to its intrinsic worth as a title. “Good faith,” said the court, “is doubtless used here in its popular sense, as the actual existing state of the mind, whether so from ignorance, skepticism, sophistry, delusion or imbecility, and without regard to what it should be from given legal standards of law or reason.”7
Numerous cases have illustrated situations where a grantor clearly perpetrated fraud in the process of granting lands to which he knowingly held no title, but the grantees were also demonstrably unaware of the illegal actions taken by the grantor. In such cases, the courts will generally allow the deed in question to be considered color of title.
The Supreme Court case quoted above makes it clear that the surveyor will not be given the authority to make final decisions regarding color of title issues, but as always, the surveyor should be aware of these issues, both to better serve the client and to avoid the possibility of blundering unknowingly into a minefield of conflicting claims.
Neither the author nor POB intend this column to be a source of legal advice for surveyors or their clients. The law can change over time and differs in important respects for different jurisdictions. If you have a specific legal problem, the best source of advice is an attorney admitted to the bar in your jurisdiction.
1 “Color of Title”; H. Campbell Black: “The American Law Register” (July 1887), Vol. 35, No. 7
2 Virginia Law Review: Vol. 2, No. 8 (Dec., 1896), pp. 553-559
3 Weaver v. Stafford; 134 Idaho 691; 8 P.3d 1234; 2000
4 Duran, Madrid, Sanchez, v. Rodriguez, No. 27,399; 133 N.M. 553, 66 P.3d 326
5 Cochran v. Hiden; 130 Va. 123; 107 S.E. 708; 1921
6 “Color of Title”; H. Campbell Black: “The American Law Register” (July 1887), Vol. 35, No. 7
7 Wright V. Mattison, 59 U. S. 50: Volume 59: 1855