Johnston v. Shelton, 39 N.C. 85, 4 Ired. Eq. 85 (1845)

Dec. 1845 · Supreme Court of North Carolina

39 N.C. 85, 4 Ired. Eq. 85

JOHNSTON AND FRANCIS vs. SHELTON & AL.

A vague entry of lands is not absolutely void, but the defect may be supplied by a survey, which renders the party’s claim more specific.

But if the entry be not so explicit, as to give reasonable notice to a second enterer of the first appropriation, and the same land is entered again, before a survey on the first entry, equity will not deprive the second enterer of his title.

An entry of “ 640 acres of land, beginning on the line dividing the Counties of Haywood and Macon, at a point at or near Lowe’s Bear-pen, on the Hogback Mountain, and running various courses for complement,” is, in itself, too vague and indefinite.

The case of Harris v. Ewing, 1 Dev. and Bat. Eq. 363, cited and approved.

Cause removed from the Court of Equity of Haywood County, at the Fall Term, 1845.

The case, as far as .concerns the questions determined, in the Supreme Court, was as follows :

On the 30th day of August, 1842, the plaintiffs made their entries, in the office of the entry-taker of vacant land in the County of Haywood. The first was, “ No. 1440, for 640 acres of land, beginning on the line dividing the Counties of Haywood and Macon, at a point at or near Lowe’s Bear-pen on the Hogback Mountain, and running various courses for complement.” The two others were, each, for 640 acres adjoining the first: the one lying east, and the other North of it. The Hogback mountain was in a wild tract of country, nearly all mountains, but little explored, and having very few inhabitants. The object of the plaintiffs, in making the entries, was to obtain lands that were then supposed to be rich in minerals, and particularly gold, at the heads of Tuckasegee river ; and about the same time, they entered a number of tracts on the opposite side of the line, in' Macon. The plaintiffs were unacquainted with the part of the country in which the lands were situate, and received from other persons the information, on which they selected the locations and descriptions of their entries. The Hogback mountain consists of two distinct knobs, now known as u The iíogback” and “ The Little Hogback,” extending together about four or, five miles, and having between them a deep depression or gap, two miles wide or near it; though, formerly, both knobs were known by hunters asThe Hogback” simply, and it so continued, as understood by some persons, to the beginning, of this controversy. The Rig Hogback and the Little Hogback are both in the lino between Haywood and Macon, which there runs nearly East and West lor six or seven miles. On the former was a Bear pen, which was known to some as “ Lowe’s Bear pen,” and to others as the “ Locust Bear pen” : and West from the Little Hogback, near the County line, there were two Bear pens, that had befen built by a bunter, named Lowe, which were Within six or seven hundred yards of the Western foot of the Little Hogback mountain, in a valley or gap of the Blue Ridge.

In September, 1842, the defendants, Reeves, Shelton, and C. Hooper, made an entry of 640 acres, lying also on the County line West from the JLittle Hogback, somewhat' more than a mile, and running North from the- County line, and then West, South and East, to the beginning. At the time they made their entry, they saw the previous entries of-the plaintiffs; but they sa.y,'that, from their knowledge of that part of the country, they believed their entry would not be within five miles of the plaintiffs’ land, as described in their entries ;. and that, when' the entry-taker saw the defendants’ entries, he was of the-same opinion. Thereupon, the defendants made their' entry. At the same time, they took copies of the entries of the complainants, in order* that they might submit them to the judgment of others, as to the lands they would cover, and with the intention of abandoning their own entry, in case it would interfere with the plaintiffs’ entries. At that time, the defendants had discovered near the County line a deposit gold mine, and it was the object-of their entry to obtain a grant for it; and' their entry was so laid as just to include it in the South-east corner of the tract, being that part of it which lies nearest to the entries of the plaintiff. The defendants state that they made enquiry of several persons- as to the location of the plaintiffs’ beginning, and they were satisfied from the information obtained, that it was at the Bear pen on the Big Hogback, which was at least five miles from the gold mine. In December following, the defendants took out a warrant and delivered it to the County Surveyor, who made their survey and plat; on which they obtained a grant shortly after. At the time of making the survey, the defendants exhibited to the Surveyor, with their own entry, the copies of the plaintiffs’ entries, and requested him to inform them, whether, from his knowledge of the country, he thought their entry would cover any land.of those embraced in the plaintiffs, saying, that, if he thought so, they would go no further, as they did not wish to lose their money or have a controversy ; and the surveyor also gave it as his opinion, that the entries were for different land. The survey was then proceeded in, and, when completed, the defendant sent to Raleigh for the grant, in order to have the elder legal title, if there should be a dispute.

In the succeeding spring, the plaintiffs had their surveys made, and the survey of entry No. 1440 was so made, as to include the gold mine and other parts of the land granted 1 o the defendants aforesaid, and they paid the purchase money to the State and obtained grants also.

The beginning was in the County line at the foot of the West end of the Little Hogback Mountain, about six hundred yards from the Be.ar pen in the valley called “ Lowe’s.” The bill was then filed against the original grantees of the gold mine and various lessees under them, praying that those prior grantees might be declared to be trastees for the plaintiffs, as they were the prior enterers and the others had notice of their entries, and that they might be compelled to convey the legal title to the plaintiffs, and in the mean time praying for a receiver.

A vast mass of depositions has been filed by the parties for the purpose of establishing, which was “ Lowe’s Bearpen” and what was known as the Hogback Mountain, and at which particular Bear pen and knob the plaintiffs meant to begin. For the purposes of the point on which the decision of the Court rests, it is material only to state a small portion of it. A witness states, that the plaintiff, Johnston, mentioned, when he made his entries, that he began on “ the main Hogback Mountain “'and went out towards “ the white oak flats” ; which are on the Tuckasegee, nearly North from the Big Hogback, and seven of eight miles from the defendants’ entry,. Another -witness states, that, wishing to get a lease of §, part of the gold mine, he went to the entry-taker’s books and examined the plaintiffs’ entries, and found that the beginning was at a Locust Bear pen on the Hogback mountain, and that he then applied to Johnston for a lease, and enquired of him, whether his entry began on the Big or the Little Hogback; and Johnston replied, “ that he knew nothing of the Big Hogback or the Little Hogback — that he made his entry from information, and made it special, calling for a Locust Bear pen on the Hogback mountain in the County line.” Another witness states, that Johnston employed a man to examine the land entered by him, for gold ; and to enable the person to know the land, Johnston told him, that it commenced on a Locust Bear pen on the Big Hogback, and included the white oak flats. It also appears', upon the warrant of survey issued on the entry No. 1440, that, as first written, it called a for Locust Bear pen as the beginning, which was altered to “ Lowe’s.” But the entry-taker states, that he altered it, and also the entry in the same way; because, in transcribing the entry on his books from the location furnished by the plaintiffs, he made an error in writing “ Locust” for “ Lowe’s.” On the other side, several witnesses state, that the persons,' upon whose information the plaintiffs took their locations, gave him “ Lowe’s Bear pen” as the beginning, which was West from the Little Hogback, and is a different place from “ The Locust Bear pen,” which is on the top of the Big Hogback. And it appears very clearly from the Surveyor and others, that the plaintiffs did not intend to enter the particular land, where the gold mine is — for it was not then discovered — nor any other covered by the defendant’s grant; for neither of the plaintiffs knew the place called for as their beginning, whether that be the one Bear pen or the other, nor;any of the land subsequently included in their survey and grant. Indeed, when the plaintiffs went to survey, they could not designate to the Surveyor their beginning, and had to call on one Hooper to point it out. He .designated “ Lowe’s Bear pen in the gap,” as that which he meant in giving the plaintiffs the description by which they made their entry ; though the same person, Hooper, has-been examined as a witness in the cause, and in his examination says, that “ the Locust Bear pen,” on the top of the Big mountain, was the one he gave Johnston for a beginning, and that he purposely deceived the plaintiffs and the Surveyor, in pointing out a different one when the survey was made. After Hooper 'had designated Lowe’s Bear pen in the gap as the beginning, the Surveyor commenced his survey at the point of the Little Hogback mountain nearest to “ Lowe’s Bear pen,” and laid out the land very irregularly, and so as to include the gold, mine and other parts of the land granted to the defendants. To that mode of making the survey, the defendants, who were present, objected, because in fact, the plaintiff’s beginning, as described in the entry, was at a Bear pen on the Big Hogback, three or four miles off; and because they, the defendants, had obtained a grant for some of the land, which would be- included in the plaintiffs’ survey, and had made their entry and. survey, and obtained the grant, without the means of ascertaining from the plaintiffs’ entries, whether they would interfere with the lands the defendants took up ; and further, because, in point of fact, there was still a sufficiency of vacant land to give the plaintiffs their quantity, without taking any of the defendants’, if they would so run tbeir lines. But the plaintiffs insisted, that as theirs was the oldest entry, no one else could enter and survey before the plaintiffs had surveyed, except at the risk of losing their land; for that the prior entry gave the plaintiffs the right to be first satisfied, at all events, and to run in any direction they might choose, from their beginning, so that they got. no more than their quantity. In obedience to the instructions of the plaintiffs, the Surveyor then completed the surveys, upon which the plaintiffs’ grants were subsequently issued.

The cause, having been set for hearing, was transmitted. to this Court. *

Badger, for the plaintiffs!

W. H. Haywood, Avery and Iredell, for the defendants'.

Ruffin, C. J.

Without wading through the voluminous depositions, or discussing the various points of fact that arise on them, the Court may safely decide this cause «pon the insufficiency of the plaintiffs’ entry. Its vagueness renders it void, as against a subsequent enterer, who surveys and pays his money before the plaintiffs had made their entry more specific, if the expression may be allowed, by-a survey, identifying the land they meant to appropriate. The construction of the entry laws, contended for by the plaintiffs, would change the meaning of them entirely, from what they have been understood; and would make an entry, not a mode of appropriating a particular pieee of land as distinguished from all other land, but as creating a prior, and, in some degree, a floating right, to have a certain quantity of unappropriated land, any where the enterer might select within the two years, on a certain stream or mountain in the County. It would consequently postpone all other persons in entering and surveying, until the prior enterers chose to make their selection, and in any form which their caprice or interest might from time to time dictate. No construction of the acts could be more erroneous or mischievous — more directly opposed to the language or the policy of the Legislature. In the case of Harris v. Ewing, 1 Dev. and Bat. Eq. 369, the Court held that a vague entry was not indeed absolutely void; because it was not material to the State, to whom she granted, and the defect might be supplied by a survey, which would render the party’s claim more specific. Therefore, there was a decree against another enterer, who made his entry after the prior vague enterer had actually surveyed, and with notice of it. That was, indeed, going beyond the words of the act, upon a'very liberal construction, which was adopted with hesitation. It certainly can be carried no further in support of vague entries; which would be an encouragement to negligence or deception in enterers. And in that case, the Court used the language, that an entry ought to be so explicit as to give reasonable notice to a second enterer of the first appropriation; and that, if it do not, and the same land be entered again, the last purchaser has conscience on his side, while the fault is on thfe other. The present case falls precisely within that rule.The plaintiffs’ entry is altogether indefinite, except in quantity, and except in the beginning — supposing that to be as now claimed by the plaintiffs. It is true, that from its lying on the County line it is seen, that it is to be on the North of the beginning. But it does not specify any thing else, and it cannot be told, whether the land is to laid out by running East or West on the County line irom the beginning, nor how far-in either direction, neither by calls for distance, or natural objects or other lines, or any other thing. It was therefore positively uncertain, what lands the plaintiffs would survey, for the description bound them to nothing but a beginning, and they might shift and change as they pleased, until the time when it would lapse unless ripened into a grant. No case coiild more strikingly illustrate the danger and error of the construction contended for by the plaintiffs, than this very one. The entry is vague in itself, and wre find a multitude of witnesses disputing about the single object designated in it, and about the plaintiffs’ declarations at different times, as to the point of beginning ; and, moreover, it is absolutely certain, that they had, when they entered or for months afterwards, no view to the particular place which is the bone of this contention. Standing upon the entry alone then, the plaintiffs could not recover, according to the rule in Harris v. Ewing. But in that case the plaintiffs had made a survey and completely identified the land he wanted, and this the defendant knew before he made his entry; and upon that ground exclusively that decree proceeded. Now, that circumstance operates directly the other way between the present parties; for these plaintiffs let their claim rest in their vague entry, until the defendants had made an entry and survey, and got a grant. The reasoning therefore and principle of decision in Harris v. Ewing are directly against the plaintiffs in this suit. It is true, that the defendants had notice of the-entry of the plaintiff; but, after they read it, they could learn nothing from it. Nobody could lay it down, unless he had the plaintiffs there to say, which land they chose. It is manifest, therefore, the very subject of the entry is not designated in the entry, but by the subsequent election of the enterers. Had the defendants gone to the plaintiffs themselves for information, as to the land they meant to take up, (if they had been under any obligation to do so in any case) the enquiry would have been unavailable in this case, for the plaintiffs did not then know how they would have their survey made. They could only have answered the defendants, that they must wait their pleasure to select the land, so as, in effect, to stop all entering after the first in a neighborhood, until the title on that is completed. But the defendants were not at all obliged to make any application to the plaintiffs on the subject. Where one is buying a legal title and has notice that a person claims an equity therein, he must take care in due time to ascertain the nature and extent of the claim. But that does not apply in a case of this sort; for an enterer has no equity or collateral claim independent of the entry itself, if the case still stands on the entry, and therefore the entry ought to give the requisite information, or, at all events, the enterer ought without delay to supply its defects by an actual survey, setting apart the land entered. Then an entry, made by one with knowledge of the survey as well as of the entry, would be mala fide, and convert the party into a trustee. It is unquestionable, however, that these defendants did not and could not know or guess, that they were encroaching on the plaintiffs’ entries. For, independent of the disputes as to the point intended and understood by different persons as the beginning, according to the present caff for “ Lowe’s bear pen,” it is certain, that the entry, as actually written in the entry book, when the defendants entered, called for “ the Locust bear pen,” which was five miles from the nearest point of the defendants’ grant. Indeed, if the call therein -had been “ Lowe’s” and not “ Locust,” it would still have been impossible for the defendants, by any experimental lines, to have first loft the land for the plaintiffs, before they took that for themselves. The defendants, therefore, intended no wrong to the plaintiffs and did them no wrong. The whole wrong was with the plaintiffs themselves in not getting such knowledge of the land, as to be able to give a sufficient description of it in the entry, and then in delaying t.o identify it by a survey, so as by notice of it to affect the conscience of the defendants. Therefore the bill must be dismissed with costs.

Per Curiam.

Decree accordingly.