Land & Lumber Co. v. Coffey, 144 N.C. 560 (1907)

May 14, 1907 · Supreme Court of North Carolina

144 N.C. 560

LAND AND LUMBER COMPANY v. D. C. COFFEY.

(Filed 14 May, 1907).

1. Grants — -Vacant Lands — Notice—Alias Notice — Practice.—Tile purpose of Revisal, sec. 1709, is to bring the claimant into court to show cause, if any he has, why his entry upon “vacant and • unappropriated lands” should not be vacated. Upon an insufficient notice given thereunder it is proper for the Court to order the issuance of alias notice.

2. Same — Evidence—Prior Grant — Action Dismissed — Title.—When it is shown by uncontradicted evidence that the lands claimed by the claimant had, prior thereto, been granted to the grantor of the protestant, under Revisal, sec. 1709, it is not error in the Court below to refuse to dismiss the action on motion, under the Hinsdale Act, or to charge the jury to answer in favor of the xjrotestant if they believed the evidence, the right of entry being on “vacant and unappropriated lands”; and it is not required that the protestant make out a perfect chain of title, with no link unbroken, as in an action of ejectment.

Civil actioN, tried before Brycm, J., and a jury, at November Term, 1906, of tbe Superior Court of Caldwell County.

Erom a judgment' for plaintiff, defendant appealed.

W. C. Newland and Jones & Whisnant for plaintiff.

Lawrence Walcefield for defendant.

Brown. J.

On 11 August, 1904, D. C. Coffey filed an entry in tbe entry taker’s office of Caldwell County, describing and entering certain lands. On 6 September following, tbe Caldwell Land and Lumber Company filed its protest according to tbe statute, Revisal, sec. 1109. Tbe entry and protest being certified to the Superior Court, tbe Clerk docketed tbe same for trial under tbe above title, and issued notice to tbe claimant Coffey to show cause at tbe ensuing November Term why bis entry should not be declared inoperative and void. At that term the respondent entered a special appearance and moved to- dismiss the proceeding because no proper notice bad issued. Ilis motion was sustained, and by order of the Court an alias notice in due form was issued and served. To the refusal of the Court to dismiss the proceeding the claimant excepted. We find no error in this action of the Court. the former notice having been declared insufficient, it was the duty of the Court, upon motion, to direct an alias to issue. the purpose of the statute is to bring the claimant into court to show cause, if be bas any, wby bis entry should not be vacated. Because the notice is insufficient is no reason the proceedings should be dismissed. As in the case of a summons which bas not been properly served, the Court will direct an alias to issue. Battle v. Baird, 118 N. C., 861. ITis Honor submitted the following issue, to which there is no exception: Is the land embraced in Coffey’s entry, or any part thereof, covered by the grants to G. N. Folk, under whom protestant claims? If so, what part of said entry? Answer: Yes, all of it. At the conclusion of the evidence, the claimant, who offered no evidence, moved to dismiss the proceedings, under the Hinsdale Act. His Honor overruled the motion, and charged the jury that if they believed the evidence they should answer the issue “Yes.” We find no error in giving such instruction. The three grants to George N. Polk, under whom the protestant claims, according to the surveyor, Kirby, who was the only witness examined, cover the land entered by claimant. The surveyor’s testimony will not admit of any other construction. That being so, his Honor’s charge was coz’rect. It being shown that the State had already granted this land to George N. Foils:, under whom protestant claims, it was not open to entry. In the terms of the statute, only “vacant and unappropriated” lands are the subject of entry. The title having been granted to Folk, under whom the protestant discloses a bona fide claim of title,, the claimant cannot be beard in bis endeavor to “pick flaws” in every point of the chain of title wbicb connects the protestant’s with Folk. This proceeding is not an action of ejectment with the laboring oar on the protestant to make out a perfect chain of title with no link unbroken.

No error.