74. A fraudulent deed, if accepted in good faith, gives color of title, 8 Pet. 244; so does a defective deed, 4 Harr. & M'H. Md. 222, unless defective in defining the limits of the land, 1 Cow. N. Y. 276; so does an improperly exe cuted deed, if the grantor believe he has titla thereby, 6 Mete. Mass. 337 ; so does a sheriff's deed, 7 B. Monr. Ky. 236 ; 22 Ga. 56 ; 7 Hill, N. Y. 476 ; and a sheriff's return on a feri facias, 1 Dev. & B. No. C. 586 ; and a deed from a collector of taxes, 4 Ired. No. C. 164; and a deed from an attorney who has no au thority to convey, 2 Murph. No. C. 14 ; and a deed fbunded on avoidable decree in chancery, 1 Meigs, Tenn. 207 ; and a deed, by one tenant in common of the whole estate, to a third person, 4 D'ev. & B. No. C. 54 ; and a deed by an infant,4 Dev. &B. No. C. 289 ; and a bond for a deed. 5 Ga. 6.
75. So possession, in good faith, under a void grant from the state, gives color of title. 4 Ga. 115. And if A purchases under an exe cution against B, takes a deed, and on the same day conveys to B, though the purchase and convezance be at the request of B, and no money is paid, B has a colorable title. A will gives color of title; but if it has but one subscribing witness, and has never been proved, it does not. 5 Iced. No. C. 711. Nor does the sale by an administrator of the land of his solvent intestate, under a license of the probate court, unless accompanied by a deed from the administrator. 34 N. H. 544. Nor does the sale of property by an intestate to his son, of which the possession is held by the wife, who is administratrix, while the son lives in the family, as against the intestate's creditors. 30 Miss. 472.
76. If there is no written title, then the possession must be under a bona fide claim to a title existing in another. 3 Watts, Penn. 72. Thus, if under an agreement for the sale of land the consideration be paid and the purchaser enter, he has color of title, 5 Mete. Mass. 173 ; though if the consideration he not paid, or be paid only in part, he has not, 2 Bail. So. C. 59 ; 11 Ohio, 455 ; 20 Ga. 311 ; because the fair inference in such case is that the purchaser is by consent of the grantor, and holds subordinately to him until the payment of the full consideration. There is, in fact, a mutual understanding, and a mu tual confidence, amounting to an implied trust. 9 Wheat. 241 ; 12 Mass. 325.
77. In New York, a parol gift of land is said not to give color of title, 1 Johns, Cas. N. Y. 36 ; but it is at least doubtful if that is the law of New York, 6 Cow. N. Y. 677 ; and in Massachusetts and other states, a parol gift is held to give color of title if accompa nied by actual entry and possession. It
manifests, equally with a sale, the intent of the donee to enter, and not as tenant ; and it equally proves an admission on the part cf the donor that the possession is so taken. 6 Mete. Mass. 337 ; 13 Conn. 227 ; 2 B. Monr. Ky. 282. The element or good faith, and the actual belief on the part of the claimant that lie has title, give the claimant by color of title his advantage over the mere trespasser, who, aewe have seen, is restricted carefully to his actual occupation ; and it may be said, generally, that whenever the facts and cir cumstances show that one in possession, in good faith and in the belief that he has title, bolds for himself and to the exclusion of all others, his possession must he adverse, and according to his assumed title, whatever may be his relations in point of interest or priority, to others. 4 Hayw. Tenn. 182 ; 5 Pet. 440. When a man enters under such a claim of title, his entry on a part is an entry on the whole; but if he claims no such title he has no seisin by his entry but by the ouster of him who was seised, which can only be by the actual and exclusive occupation of the land. 4 Mass. 416.
7S. In cases of mixed possession, or a pos session at the same time by two or more per sons, each under a separate colorable title, the seisin is in him who has the prior title, 4 Wheat. 213 ; 20 How. 235 ; for, though there may be a concurrent possession, there cannot be a concurrent seisin ; and, one only being seised, the possession must be adjudged to be in him, because he has the better right. 3 Mass. 219 ; 3 Me. 216. Of course, in such a case, if one has color of title, and the other is a niere trespasser or intruder, the possession is in him who has color of title. 2 Harr. &J. Md. 112 ; 4 Serg. & R. Penn. 465 ; 5 Du. N. Y. 272 ; 2 Bail. So. C. 101.
79. But, with all the liberality shown by the courts in giving color of title, it has been denied that a grant from a foreign govern ment confers it, on the ground that the pos. session under such a title was rather a clues. tion between governments than individuals. Thus, the courts of New York have refused to recognize claims under a grant of the French government in Canada, made prior to the treaty between Great Britain and France in 1763. 4 Johns. N. Y. 163 ; 12 id. 365. But the soundness of the exception has since been questioned in the same court, 8 Cow. N. Y. 589 ; and the grant of a foreign govern ment has been expressly held to give color of title in Pennsylvania, even as against one claiming under her own grant. 2 Watts, Penn. 37. And, for political reasons, it has been held that a grant from the Indians gives no color of title. 8 Wheat. 571.