Maxwell v. Wallace, 38 N.C. 593, 3 Ired. Eq. 593 (1845)

June 1845 · Supreme Court of North Carolina

38 N.C. 593, 3 Ired. Eq. 593

JOHN T. MAXWELL vs. MATTHEW WALLACE.

An feritry-taker cannot appoint a deputy, nor Can th'C acts of one in the city of a deputy be rendered valid by the subsequent acquiescence of entry-taker in what he has done.

Cause removed by the consent of the parties from the Count of Equity of Mecklenburg County, at the Spring Term, 1845.

This bill was filed to compel the defendant to convey to the' plaintiff a tract of land, therein described, alnd to enjoin him; from prosecuting a suit at law, brought to recover possession of it. The facts of the case are as follows : The plaintiff, intending to enter the land in que’stion, went, on the 17th of February, in the year 1842, to the house of the entry-taker, Who was absent, and applied to his wife to take from him an entry thereof. She at first refused, but, at length, made an entry upon the entry-takers book to that effect, and on the 8th June following, the plaintiff obtained a grant for the land. On the same day, and before the plaintiff procured this entry to be made, and with his knowledge,- the defendant applied to’ the entry-taker to enter the same land for him, and paid his fee, and the entry-taker promised so to do upon his return to his house, and which he accordingly did, and the defendant took out a grant, prior in date to the plaintiff’s. When the latter procured the entry-taker’s wife to make the entry for him, he handed her a paper describing the land, but it Was not signed by him, nor was it left at the house of the entry-taker, but was carried away by him and handed to that officer, about three weeks thereafter. The entry-taker proved, that his wife' had often taken locations for him, and that he had authorised her to enter them on his books in his absencej but that this was the first She had ever made,- and that when. he made the defendant’s entry, he saw the entry of the plaintiff made by his wife, and the defendant’s entry next to it. The defendant had brought an action of ejectment against ° . . the plaintiff, to recover possession of the land. An injunction was granted, and, upon the coming in of the answer, replica-' tion was taken.

Osborne for .the plaintiff.

Alexander for the defendant.

Nash, J.

In the view we have taken of this case, it isH unnecessary to inquire into the title of the defendant /it being;' very clear, we cannot grant to the plaintiff the relief he seeks^ Unless his grant is founded upon a valid entry, such as the' law recognises, however imperfect the defendant’s grant may be, the plaintiff cannot ask the court to compel him to confey the land to him. The 42d ch. Rev. Slat, in the 4th section, directs the justices of the pence in every county, to elect one good and sufficient person to receive entries of claims of land, within such county respectively, and the 13th section requires the claimant of any land to produce, (the language is, shall produce) to the entry-taker, &c. It is not pretended in this case, that the plaintiff did make an entry of the land; with the entry-taker, but it is said, his wife was the agent or' deputy of the latter to act for him, and that he subsequently recognised and adopted her act. We know of no power in an entry-taker to appoint a deputy or agent, to perform his duties. The law has made them personal to himself, and that it did not intend he should have any such power, is evidenced by the fact, that, in the 7th section, the power is. given to the surveyor toappoint a deputy. The 4th section, which requires the appointment pf one entry-taker, also requires the appointment of not more than two surveyors for the county. We think if is manifest, the Legislature intended to confine the power to receive entries in each county to one person. And among several other reasons, to avoid the very evil exhibited by this Case, a double entry of the same lani by different persons. It would further be difficult, if not impossible, for the Legislative will, as expressed in the 13th sec" ,tion to be complied with, in the case of there being two per- • .sons entitled to receive entries. By that section, the entry-taker is required to indorse on every entry the date when made, and to enter a copy thereof in a well bound book, and •“ every entry to be made in the order of time in which it shall be received, and numbered in the margin.” Suppose the entry-faker to appoint several agents or deputies; for if he may appoint one, he may a dozen ; and the same piece of land to be entered on the same day with each. How is the priority to be ascertained, and in what order are they to be spread upon the book ? It is evident much confusion and uncertainty would be produced, which is now avoided by confining the power to receive entries to one person. It follows as a necessary consequence, if he cannot appoint a deputy, he cannot by any recognition of his, make that lawful, which is in itself unlawful. If he could, the priority and certainty which the law recognizes and requires, would not depend upon the action of the parties, but upon the will and pleasure of the entry-taker. The plaintiff's claim to relief rests upon the assumed fact, that he made au entry before the defendant, as required by law, and upon it procured a grant for the land to issue to himself; and that the defendant, with a knowledge of his priority, made an entry of the same land. As he has never made an entry, such as the law requires, his equity has never .arise».

P¡er Curiam, Bill dismissed with costs.