Opinion
(August Term, 1854.)
1. An entry, calling for "a chestnut tree, in a known line as a beginning corner, and lying on the headwaters of Elk Creek, and between the lands of other persons," is sufficiently certain to sustain a grant on it.
2. Where A makes an entry which loses its priority by the lapse of time, and B makes another, which is also permitted to lapse, both stand on the same footing, under the act of 1850, and A having got a grant after B's entry lapsed, it was held to be good.
CAUSE removed to this Court from the Court of Equity of WATAUGA, Spring Term, 1854.
Lenoir, for plaintiff.
Neal, for defendant.
The plaintiff made his entry for the tract of land in dispute 21 September, 1847, and had the same surveyed 25 January, 1850. On 1 December, 1850, he obtained a grant from the State. On 4 November, 1844, the defendant made an entry for one hundred acres of land, which was surveyed, and a grant obtained 11 March, 1850, which covers the greater and only valuable part of the land surveyed for the plaintiff and granted to him as above stated.
It is alleged in the plaintiff's bill that the survey was made of (271) his entry before that of the defendant was surveyed, and that the defendant was present and assisted plaintiff in making the survey, and encouraged him in doing so by pointing out the corners of adjacent tracts and showing him how and where he might include the best of the vacant land where they were running; that he fraudulently and deceitfully concealed from him the fact that he had a previous entry which could be extended over the land in question, and by various pretenses of good offices and friendship put the plaintiff off his guard, and caused him to delay the taking out his grant; that after plaintiff had made his survey the defendant went forward and made his survey of the hundred-acre tract so as knowingly to include the fifty-acre tract which plaintiff had had surveyed, and avers that there was enough vacant land there for him to have got the complement under his entry without encroaching upon the land surveyed for him, the plaintiff. He sets forth the defendant's entry as follows: "Adam Cook enters one hundred acres of land in Wilkes County, on the headwaters of Elk Creek, between Jacob Lewis and James Brown's line, beginning at a chestnut in James Brown's line and running various courses for complement"; and insists that it is too vague, uncertain and indefinite to entitle the plaintiff to any preference over him. The prayer is for a conveyance of so much of the fifty acres granted to plaintiff as is covered by the prior grant of the defendant.
The answer of the defendant denies all fraud and misrepresentation; he admits that he did go with the plaintiff and assist him in pointing out corners and in showing him the good land, but he says that he did this under the full assurance and conviction that the time for completing his title was past, and that the defendant had acquired an indefeasible right against him, but afterwards he found that the plaintiff had let his entry lapse, without having done anything to secure a priority, and being advised that they both then stood on the same ground, he did not believe there was anything against conscience in (272) endeavoring to get the first grant, and accordingly he did so.
There was replication and commissions, and some proofs taken, but the material portions of them are mentioned in the opinion of the Court.
There is not much difficulty in determining the relative rights of these parties, if we attend to the dates of their respective entries and grants. The plaintiff made his entry 21 September, 1847, and had it surveyed 25 January, 1850, and obtained his grant on 1 December the same year. The defendant's entry was made 4 November, 1844, and although the date of his survey is not particularly stated, yet we infer from the pleadings that it was after that of the plaintiff's; but his grant was prior to the plaintiff's, to wit, 11 March, 1850. It appears, then, that the defendant precedes the plaintiff, both in making his entry and obtaining his grant. But the plaintiff seeks to avoid the effects of that priority, so far as the entry is concerned, by alleging that when his survey was made the defendant was present and by his fraudulent representations induced the plaintiff to include in it lands for which the defendant afterwards obtained his grant. He contends, also, that the defendant's entry was too vague, indefinite and uncertain to be of any force against his entry and survey, because his survey was prior to that of the defendant, which he insists gives to him the effect of a prior entry, of which the defendant had notice at the time when be obtained his grant. But if this be not so, then the plaintiff contends that Laws 1850, ch. 59 (see Ire. Dig. Man., 182), by virtue of which the defendant had the right to take out his grant, contains a proviso by (273) which the plaintiff's right as a junior enterer was saved.
Neither of the grounds of defense, against the effects of the defendant's prior entry and grant, can avail the plaintiff. The allegation of fraud and misrepresentation is expressly denied and disproved by the defendant. As to that, then, the plaintiff fails upon the question of fact. The objection to the vagueness and uncertainty of the defendant's entry and its effect upon his rights is equally against the plaintiff. Such an objection would have come with more force from the plaintiff to repel the allegation of notice of the defendant's entry, if he had obtained the first grant; but in truth the defendant's entry was sufficiently definite and certain to fix the plaintiff with the actual notice which it is clear from the proofs he had of it. It specifies a certain tree in a certain line of another tract of land, at which it commences; and it mentions the headwaters of the creek on which, and the tracts of land belonging to other persons between which, it is located. In that respect it differs materially from the entries set forth in Johnson v. Shelton, 39 N.C. 85; Monroe v. McCormick, 41 N.C. 85, and Fuller v. Williams, 45 N.C. 162, and is sufficient to sustain the proof of actual notice of it, according to the principles established in Harris v. Ewing, 21 N.C. 369.
The last and main ground upon which the plaintiff contends that he is entitled to relief is that at the time when he made his entry the defendant's entry had lapsed, and the acts of 1848, ch. 54, sec. 2, and 1850, ch. 59, sec. 2, which gave further time for paying the purchase money to the State and perfecting the title, contains a proviso in favor of junior entries, by virtue of which his, the plaintiff's, right was made the preferable one. That would have been true had the plaintiff, after making his entry, proceeded to pay the purchase money, and take out his grant within the time prescribed by law; Bryson v. Dobson, (274) 38 N.C. 138; Buchanan v. Fitzgerald, 41 N.C. 121. But unfortunately for the plaintiff, his entry lapsed by reason of his not having paid the purchase money and taken out his grant on or before 31 December, 1849, 1 Rev. Stat., ch. 42, sec. 10. He was therefore compelled to claim the aid of the act of 1850, ch. 59, sec. 2, which extended the time for the benefit of the defendant's entry as well as for his own. They both then stood upon the same footing, and we can see no reason why the defendant's equity is not as good as that of the plaintiff, and thus give application to the maxim that "qui prior est tempore portior est jure." Indeed, in Bryson v. Dobson, 38 N.C. 138, the Court say, arguendo, that the law is so "when applied to two entries which had both lapsed and were both revived by the act. As neither could get the land but by that act, they stand on the same ground, and then the general principle applies that priority of time in making payment creates a priority of equity." The act to which reference was made was the act of 1842, ch. 35, sec. 2, the object of which is the same as that of 1850, ch. 59, and the latter must receive the same construction in this respect as the former. The bill must be
PER CURIAM. Dismissed with costs.
Cited: McDiarmid v. McMullen, 58 N.C. 31; Wilson v. Land Co., 77 N.C. 458; Gilchrist v. Middleton, 107 N.C. 678; Euliss v. McAdams, 108 N.C. 512; Perry v. Scott, 109 N.C. 379; Grayson v. English, 115 N.C. 364; Barker v. Denton, 150 N.C. 725; Cain v. Downing, 161 N.C. 599, 600.
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