Opinion
(August Term, 1849.)
1. There is now no statute prescribing the time within which grants must be issued, where the entry money has been paid.
2. A person, therefore, who pays the entry money may take out his grant when he chooses, subject to this risk, that if another person enters the same land without notice of the prior entry, and first obtains his grant, this shall be preferred.
CAUSE transmitted from the Court of Equity of ASHE, at Spring Term, 1849.
(261) H. C. Jones for plaintiff.
Clarke and Boyden for defendants.
On 18 March, 1834, the plaintiff made an entry of 100 acres of land, beginning at a forked black oak, a corner of the land of Adam Krous, deceased, the southwest corner, on the Long tract of Cane Camp Creek, etc. In September, 1841, the plaintiff obtained a duplicate warrant of survey, upon which the land was surveyed and a grant issued in November, 1841.
On 5 April, 1837, an entry of 100 acres of land, beginning on the line of Joseph Alexander, was made by the defendant John Long, through his agent, James Maxwell, the testator of the other defendants. Under this entry a survey was made by the said Maxwell, who was a deputy surveyor, so as to include all the land which is contained in the plaintiff's grant, except 10 acres, and a grant issued therefor to the defendant Long in 1838, who brought an action of ejectment against the plaintiff and effected a recovery in October, 1845. These facts were admitted in the pleadings.
(260) The bill charges that in November, 1834, the plaintiff filed a certified copy of this entry in the office of the Secretary of State, and paid the purchase money, $5, to the Treasurer of the State, and obtained a certificate of the same from the proper office that in November, 1836, having had his entry surveyed, he inclosed the necessary papers to the Secretary of State by letter, and made application for a grant, but the grant did not issue, owing, as he supposes, to the miscarriage of his letter.
The bill also charges that the defendants John Long and James Maxwell, the testators of the other defendants, at the time the plaintiff made his entry had full notice that the land was covered by the entry of the plaintiff and that the purchase money had been paid within the time required by law.
The prayer is for a conveyance and an injunction against suing out a writ of possession, etc.
The defendant John Long denies that he had notice of the plaintiff's entry or of the payment of the purchase money, and insists that the entry of the plaintiff had lapsed or been abandoned at the time his entry was made. He admits that James Maxwell acted as his agent, as he did not reside in this State, in making the entry and survey and in taking out his grant; but he says he does not believe that the said Maxwell had notice of the plaintiff's entry; and, if he had notice of the entry, he does not believe he had notice of the payment of the purchase money, but believes that the said Maxwell made the entry for him under the belief that the entry of the plaintiff had collapsed.
The other defendants, who are the executors of the said Maxwell, to whom his real estate was devised, deny any personal knowledge and disclaim any title; they deny that their testator used the name of the other defendant and made this entry for his own benefit or acted otherwise than as agent.
The allegation made in the bill, that Maxwell made the entry for his own benefit, is not sufficiently proven in opposition to the answers. We are satisfied from the proofs that Maxwell had notice of the entry, and the location of the plaintiff's entry, at the time he made the entry for the defendant Long. Notice to the agent is notice to the principal, so that the defendant Long had notice. We are also satisfied from the exhibits and the deposition of Mr. Hill, the Secretary of State, that the plaintiff did pay the purchase money within the time required by law, so that his entry did not lapse. This being the case, it is immaterial whether the defendant had notice of the payment of the purchase money or not. In making an entry and taking out a grant for land which he knew had been before entered by the plaintiff, he acted at his peril, and has no right to hold land to which another is entitled because he may have persuaded himself that the entry had lapsed by the nonpayment of the purchase money, as it turns out that he was mistaken. It is no excuse for one who takes the legal title to land for which he knows another has contracted, to say that he believed the conditions of the contract had not been complied with, and that the right was forforfeited [forfeited], if it turns out not to be as he hoped it was.
So if one knows that another has made an entry, he has no right to take it for granted that the entry has lapsed. He should inform himself, for he is put on inquiry, and if it turns out that, on fact, the entry had not lapsed, he cannot be allowed to hold the land. It was his fully to be too hasty in seeking an advantage from a supposed state of facts, and to act in the dark. He reckoned without his host. It was insisted in the argument for the defendant that, although the plaintiff had paid the purchase money within the time required by the law, yet as he (262) did not take out a grant and perfect his title until November, 1841, which was more than two years from the date of his entry, the grant is inoperative, unless he can bring it within the provisions of some of the statutes extending the time for perfecting title, and that if this case falls within any of those statutes, his grant must give way, under the proviso, to the defendant, who had in the meantime obtained his grant. The argument assumes that the law requires a grant to be taken out within two years, from the date of the entry, notwithstanding the purchase money has been paid within the time required by law. In this the counsel are mistaken. If the purchase money be paid in due time, there is no law fixing upon any particular time within which the grant must be obtained. The enterer is looked upon as a purchaser who has paid the price and may call for a title when he chooses, with this restriction only, that if his entry be vague it cannot amount to notice, and even when it is so specific or has been made so by a survey, that he can allege notice, still, if he is unable to prove it, and any other person makes an entry without notice, he loses his right. Subject to this risk, he may call for a grant when he chooses, as the law now stands.
Laws 1796, ch. 445, sec. 13, required grants to be taken out, as well as surveys to be made, within two years after the date of the entry, although the purchase money had been paid in due time. Laws 1804, ch. 651, ib., repeals so much of the act of 1796 as required grants to be taken out, but surveys were still required to be made within two years from the date of the entry, and there are acts regularly extending the time for making surveys, and some of the acts extend the time for taking out grants, without any necessity for it, unless in cases where the purchase money had not been paid in due time. Laws 1836, ch. 42, Rev. (263) Stat., "Entries and Grants," has no provision requiring either that the surveys should be made or that grants should be obtained within any limited time, provided the purchase money is paid within the time required; and thus the act of 1796 is repealed; but person who have made entries and paid the purchase money, by neglecting to perfect title, take the chance of losing the entries and their money, if any other person enter upon the land whom they cannot prove to have had notice, or if the entry be so vague and uncertain as not to be capable of being identified, in which case it cannot be made the subject of notice. Harris v. Ewing, 21 N.C. 369.
There are since the act of 1836 statutes from time to time extending time for perfecting title. They are only necessary when purchase money has not been paid within time required by law, although in some the provision is general, probably because the fact that the act of 1796 has been repealed by the act of 1836 in this particular was not adverted to.
The plaintiff is entitled to a decree for a conveyance from the defendant John Long of so much of the land as is covered by his grant, with costs; and as the injunction heretofore granted has, by an interlocutory order, been heretofore dissolved, if the defendant has taken possession, the plaintiff is entitled to have the possession given up to him and an account of the profits and of the costs at law paid by the plaintiff to the defendant. As to the plaintiff's own costs at law, he is not entitled to a decree, because he ought not to have resisted the recovery, as he did not have the legal title. As to the other two defendants, the bill must be dismissed without costs. The allegation that their testator acted otherwise than as an agent, although not fully sustained, so as to entitle the plaintiff to a decree against them, is still so supported as to show that the plaintiff had a reasonable ground for making them parties and to call for their title.
PER CURIAM. Decree accordingly.
Cited: Gilchrist v. Middleton, 108 N.C. 716, 717.
(264)