Buchannan v. Fitzgerald, 41 N.C. 121, 6 Ired. Eq. 121 (1849)

Aug. 1849 · Supreme Court of North Carolina

41 N.C. 121, 6 Ired. Eq. 121

WILLIAM BUCHANNAN & AL. vs. SAMUEL FITZGERALD

A payment of money into the Public Treasury for an entry of land, without the certificate, required from the Secretary of State by the Act, Rev. Slat. ch. 42, sec. 22, is to be regarded as a merely voluntary and unauthorized act, and not as a payment on the entry, 60 as to entitle the party to a. grant.

The proviso in the Act of 1842, ch. 35, saying the rights of junior entries, “for which the purchase money'may have been paid,”istobe construed, as not preferring a lapsed entry before a junior entry, subsisting at the pasting ' of the Act, on which the purchase money was afterwards duly paid, and , a grant obtained in due time.

The case of Bryson v. Dobson, 3 Ire. Eq. 138, cited and approved.

Appeal from an interlocutory order, made by his Honor Judge Settle, in the Court of Equity for Haywood County, at the Fall Term 1847, dissolving the injunction, which had been granted in the cause.

John Buchannan,the late father of the plaintiffs, on the 2nd of May 1836, entered 96 acres of land in Haywood County, and took out a warrant, on which he had the land surveyed on the 2d of September 1S37. On the 5th of December 1S38, he paid the purchase money imo the public treasury, as the bill charges ; but, as the surveyor had not returned the warrant and survey, he could not then get a grant. Upon enquiry he ascertained, that the survey-, or had mislaid the warrant and survey, and he insisted that he should look for it and return if, so that he, Buchannan, might get a grant. On the 13th of September 1841, the defendant, Fitzgerald, entered 100 acres of land, and obtained a grant therefor, on the llth of January 1843, including the greater part of the land entered and surveyed for Buehannan.

The bill was filed in September 184(5, and states, that, at the time the defendant made the entry, he had full knowledge that Buehannan had made the older entry:-, and paid the purchase money to the State, and intended taking out a grant) as soon as the surveyor could find the warrant and survey or make a new one. It further states, that afterwards, those papers were found and returned to the Secretary's office, and a grant obtained July 1st 1844-, under which the grantee entered and held the land until his death, and then that it descended to the plaintiffs, who are his children and heirs at law ; and that the defendant brought an action of ejectment against them and has recovered judgment therein. The prayer is, that the defendant may be declared a trustee for the plaintiffs, and be decreed to convey the land to them, and in the mean while for an injunction.

The answer denies that the defendant had any knowledge of the entry, survey or payment of the purchase money', by Buehannan, ascharged in the bill, until after some considerable time after the Defendant had obtained his grant. It states, that, in fact, Buehannan had abandoned the entry, under whieh he now claims, and made a. second entry of the same land on the 1 Oth of November 1838; on which, however, he took no farther steps; and it insists, that both of those entries had lapsed, when the defendant made his entry on the 13th of September 1841, and, therefore, that he had a perfect right to enter the land and obtain a grant. Upon the coming in of the answer, the defendant moved for the dissolution of the common injunction, which had been granted on the bill, and the motion was allowed with costs, but the plaintiffs by leave of the Court appealed

iY W. Woodfm, for the plaintiffs.

Francis, for the defendant.

Ruffin, C. J.

The Court is of opinion, that the injunction was properly dissolved. It is not correct to say, that the purchase, money on Buchannan’s entry was paid into the treasury ; for it could only be lawfully received upon the certificate of the Secretary of State, setting forth the number and date of the entry, and the quantity of acres, found by the surveyor to be vacant, as the same may appear to exist by the returns made to him from the survey- or, or entry taker, or from the entry taker’s warrant or the plats of survey. Rev. St. Ch. 42 Sec. 22. Nothing of that kind is'alleged here, and, indeed, it appears by an endorsement of the Secretary of State on the Treasurer’s receipt, which is annexed to the bill, as an exhibit, that there was no warrant or survey, returned to his office. The payment into the treasury, therefore, must be regarded as a merely voluntary and unauthorised act, and not as a payment on the entry, so as to entitle the party to a grant on it. Consequently the entry had lapsed and the land became subject to entry by any other person, under the 10th and 11th sections of the entry law. But if it were otherwise, and the money could be deemed a payment for the land, there is nothing in the case to afiect the defendant with notice of it, and he positively denies ever having heard of the entry of the 2nd of May 1836, until nearly a year after he had obtained bis own grant ; -and, certainly, without notice of it, the defendant might innocently and justly enter the land and lay out his money for it, after a lapse of upwards of five years from the date of the entry, and nearly three from that of (he alleged payment of the money into the treasury; and therefoie is'entitled in consequr.ee to hold it to his own use.

If the acts, extending the time for perfecting titles to lands before entered, be urged for the plaintiffs, the answer is, that they all contain savings in general terms, that nothing in them shall afiect the rights of junior entries, except that of 1842, ch. 35, which, taken literally, qualifies the proviso, by restricting it to a subsequent entry, “for which the purchase money may. have been paid;” and in the case of Bryson v. Dobson, 3 Ire. Eq. 138, on the maxim, that the Legislature never intends to confer a favor on one citizen, which causes loss and injury to another, it was held, that those words were to be construed as not preferring a lapsed entry of 1836 before a junior entry, subsisting at the passing of the act, on which the purchase money was afterwards duly paid and a grant obtained in due time. In every point of view, therefore, according to the answer, the equity of the bill is completely removed ; and it must be certified t.o the Court of Equity, that there is no error in the decree. The plaintiff must pay the costs in this Court.

Per Curiam.

Decree accordingly.