D. A. Hurley made entry to certain lands in Randolph County, under C. S., 1554, alleging tbe same to be vacant and unappropriated. Two separate protests were filed by tbe beirs of Ransom Lucas, under C. S., 1557, claiming title to each and every part of tbe lands covered by tbe entry. These protests were consolidated for tbe purpose of trial, and a survey of tbe lands was made under order of court.
On the bearing, and after the evidence was in, protestants orally entered a disclaimer to about one-balf of the lands covered by the entry. Their evidence showed that they were the owners of the other part, and the jury so found. With respect to the judgment entered in favor of protestants for the land which the jury found was covered by the deeds under which they claim, we have found no reversible error (Nelson v. Lineker, 172 N. C., 279); but we think .the enterer was entitled to judgment declaring the remainder of the lands covered by bis entry to be vacant and unappropriated, and for costs. Staley v. Staley, 174 N. C., 640. the protestants did not enter a disclaimer to the undisputed part of the land until after claimant bad gone to the trouble and expense of preparing for trial and having bis witnesses in court. In fact, the disclaimer was not entered until after the evidence bad been offered on the bearing. This was too late to save the costs, which, under C. S., 1241, the enterer is entitled to recover. Swain v. Clemmons, 175 N. C., 240; Bryan v. Hodges, 151 N. C., 413; Moore v. Angel, 116 N. C., 843. As thus modified, the judgment -will be affirmed.
Modified and affirmed.