(after stating the case). Prom the time of making the deed the defendants held possession of the land thereunder until the death of the grantor in August, 1869, and thereafter for a period of more than seventeen years, during all of which, except a half month, the statute was in full operation before the suit was brought.
Assuming the deed to be voidable, the possession under it, as color of title merely, in the absence of any indication *57of imperfection or infirmity apparent upon its face, would ripen into a good title after the expiration of seven years, unless, within three years after the “ coming of sound mind,” according to the Revised Code, eh. 65, § 1, and The Code, § 148 (the same language being used in each), the person so entitled commence his suit or make entry on the land. If the disability continued during life, and for a period thereafter sufficient to complete the prescribed time of seven years, the title would be perfected in the occupant, subordinate only to a right in the heir to sue for the recovery of the land for the space of three years next after his death. The running of the statute against the action and to consummate the title would be concurrent after the decease of the grantor >
The cause of action to set aside the deed arises at once upon its execution, while the running of the statute was so far arrested in favor of the grantor, supposing him to be of unsound mind, as to admit of the prolonged period of three years after the restoration of reason, or, as we think, after death, to those to whom the estate would have descended, in the absence of any new interrupting personal disability, in which to institute suit. Summerlin v. Cowles, 101 N. C., 473.
In this view of the case, and aside from the claim of title under the deed, as affording color of title, with the support of the hostile possession held for the prescribed time, the bar to the action is complete and effective, whether the former statute or that substituted in The Code be applicable to the case.
While we deem the law settled in this State, whatever may have been the rulings elsewhere, by the case of Riggan v. Green, 80 N. C., 236, thatthe deed of one non compos is voidable and not void, it can make no difference when such is offered as evidence of color of title only, whether it be the one or the other, to sustain a possession under it.
*58Color of title, in connection with an adverse claim and occupation, has been held to perfect the title when furnished by a deed from husband and wife, when there has been no-privy examination of the latter (Pearce v. House, 2 Hay., 386); when the deed was executed in the name of a principal, and the agent professing to have authority, had none to make it (Hill v. Wilton, 2 Murph., 14); when it was made by a.person known by the grantee to have no title (Reddick v. Leggat, 3 Murph., 539); when the deed has never been registered (Campbell v. McArthur, 2 Hawks, 33; Hardin v. Barrett, 6 Io., 159; Hunter v. Kelly, 92 N. C., 285); when the deed is fraudulent and the possession has been adverse for the prescribed period, after a sale by the creditor (Pickett v. Pickett, 3 Dev., 6; Hoke v. Henderson, ibid., 12); where the possession is under an act that is unconstitutional (Episcopal Church v. Newbern Academy, 2 Hawks, 233).
Color of title, as defined by GastoN, J., speaking for the Court, and with the hesitating assent of the Chief Justice,, who favored a less circumscribed statement of the proposition, in Dobson v. Murphy, 1 D. & B., 586, requires a party to have “ some written document of title, purporting to pass the land, and one not so obviously defective that it would not have misled a man of ordinary capacity.” Not dissimilar is the definition given in Tate v. Southard, 3 Hawks, 119.
The contention of counsel that, inasmuch as, but for the deed, the inheritance would descend to the plaintiff and defendants as tenants in common, the relation thus created prevents thestatutory bar until after the expiration of twenty years, according to the ruling in Hicks v. Bullock, 96 N. C., 164; Page v. Branch, 97 N C., 97, and Breden v. McLaurin, 98 N. C., 307, is not tenable. The adverse holding here is under a title derived from the deed, and began at its execution, and its character was not changed by the grantor’s death. The estate in its entirety was in the defendants, and while the deed remained in force, there was no estate to *59descend. The plaintiff, if his allegations were true, and the statutory bar did not intervene, could bring his action, as he does, to annul the conveyance, and the relations between him and the defendants would be hostile, as they were before, between the latter and the maker of the deed.
In no view of the case can the plaintiff prevail, and the judgment must be and is affirmed.
No error. Affirmed.