Munroe v. McCormick, 41 N.C. 85, 6 Ired. Eq. 85 (1849)

June 1849 · Supreme Court of North Carolina

41 N.C. 85, 6 Ired. Eq. 85

CHRISTOPHER MUNROE vs. DUNCAN McCORMICK.

When one makes an entry, so vague as not to identify the land, such entry does not amount to notice, and does not give any priority of right, as against another individual, who makes an entry, has it surveyed, and takes out a grant.

One, who makes an entry and has it surveyed, cannot afterwards shift its location, to the detriment of a subsequent enterer.

The cases of Harris v. Erving, 1 Dev. & Bat. Eq. 369, and Johnson v. Shelton, 4 Ired. Eq. 85, cited and approved.

Appeal from an interlocutory decree of the Court of Equity, of Cumberland County, at the Spring Term 1849, his Honor Judge Caldwell presiding.

On the 4th of January, 1845, the plaintiff made an entry of “640 acres of land in the County of Cumberland, on the heads of Beaver and Big Cross Creeks, joining the Torrey and Murchison lands.” In December 1847, the purchase money was paid. In the year 1848 the survey was made; and a grant issued to the plaintiff in Septena* ber, 1848.

On the 11th of January 1841, the defendant made an entry of “500 acres of land in the County of Cumberland, on Cross Creek, on, or near, the Murchison road, joining the McKay lands.”

The defendant failed to pay the purchase money, and his entry would have lapsed, but for the act of 1844, which allows further time to pay the purchase money, and perfect titles upon entries made prior to that time, with a proviso, that it shall not affect the rights oí junior enterers. This was ratified on the 4th of January, 1845, and went into operation, “from and after its ratification.” During the year 1845, the purchase money was paid, the survey made, and a grant issued to the defendant in December 1845.

The grant to the defendant includes about 400 acres of the land, included in the grant to the plaintiff. The plaintiff cut timber upon the land covered by both grants, and the defendant brought an action for the trespass.

The plaintiff alleges, as a reason for not having his survey made sooner, that the defendant was the only County surveyor, and, although the warrant of survey was put into his hands, he delayed, under one pretext and another, to make the survey, so that the plaintiff was unable to get his land located until 1848, when one McDuffie, being appointed additional County surveyor, made the survey. This delay on the part of the defendant is alleged to have been fraudulent, and with a view of gaining a priority for his claim.

The plaintiff also alleges, that his right was protected by the proviso in the Act of 1S44, he being a junior enterer within the meaning of the act, as his entry was made on the 4th of January, 1845, and the act did not go into operation until the 5th of January; and that the defendant, with notice of his entry, located his laud, so as to include a part of it. He insists, that, as the defendant acted fraudulently and with notice, he has an equity to demand the legal title, and prays for a conveyance ; and that the defendant may be enjoined from the further prosecution of his action at law.

The defendant positively denies, that there was any delay, on his part, to make the survey for the plaintiff, after the warrant was put into his hands. On the contrary, he avers, that, having understood that one Mc-Diarmid had made an entry at the head of Beaver Creek, he urged the plaintiff, more than once, to have the survey-made, or give him such directions as would enable him to do so. This the plaintiff neglected to do, until some time in 184(5, when a survey was made by the defendant, and the plaintiff’s entry located, according to his directions, he being present, assisting in the survey, and marking the lines with his own hands. This location was at the head of Beaver and Big Cross Creeks, some miles, above the land of the defendant; and the plaintiff then knew, not only that the defendant had surveyed and taken out a grant, but also the location of the defendant’s land. The defendant avers, that the plats and other papers were, duly returned to the office of the Secretary of State ; and he is informed, that, in 1S48, the plaintiff, instead of taking a grant in pursuance of his survey, withdrew the papers, and procured McDuffie to make a second survey, so as, knowingly, to cover the greater part of the defendant’s land. The defendant denies, that, at the time he made his survey and took out his grant, he had any notice, belief, or suspicion, that he was interfering with the entry of the plaintiff. He does not believe, that the plaintiff had any idea of locating his land, as it is by the second survey, until more than a year after its first location, when he found that it interfered with older grants.

The defendant avers, that his entry was revived by the act of 1844, on the 4th of January, 1845, and has priority over the entry of the plaintiff, made on the same day, but in contemplation of law after the defendant’s was revived, which, he is advised, was, in contemplation of law, the first moment of the day of its ratification, as the act takes effect “from and after its ratification’ and not from and after “the day of its ratification.”

Upon the coming in of the answer, a motion was made to dissolve the injunction, which had been granted. The motion was refused, and the injunction ordered to be continued to the hearing. The defendant, by leave, appealed.

W. Winslow, for the plaintiff.

Strange, and D, Reid, for the defendant.

Pearson, J.

The allegation of a fraudulent delay, on the part of the defendant, to make the plaintiff’s survey, is positively, lully, and fairly denied by the answer; which, in this stage of the proceeding, is taken to be true. A question is raised, whether the plaintiff’s entry was made before the defendant’s was revived by the Act of J844. This involves the consideration, whether the fractions of days are to be estimated : whether there be not a distinction between an Act taking effect from and after its ratification, and from and after the day of its ratiñcation ; whether legislative proceedings do not relate to the first moment of the day, on which they go into effect; and what would be the rights of the parties, if both entries take effect at the same time.

It is unnecessary to enter into a consideration of the question of time, about which so much learning and so many nice distinctions are met with in the books; for, there is a plain principle, settled by two decisions of this Courf, which is fatal to the plaintiff's case. Harris v. Ewing, 1 Dev. & Bat. Eq. 369. Johnson v. Shelton, 4 Ire. Eq. 85.

When one makes an entry so vague as not to identify the land, such entry does not amount to notice, and does not give any priority of right, as against another individual, who makes an entry, has it surveyed, and takes out a grant. By a liberal construction of the iau\ such entries are not void, as against the State. It is not material to the State what vacant land is granted ; bnt such entries are not allowed to interfere with the rights of other citizens, and are not susceptible of being notice to any one, because they have no identity. It would be taking advantage of his own wrong, for one to make a younger entry, and afterwards take from another land, which ho had, in the mean time, entered and paid for.

When an entry is vague, it acquires no priority', until it is made certain by a survey. The good sense of this principle will strike every one, as soon as it is suggested.

Both the entries in this case are vague, — they have no beginning corner — no lines are called for, and the genera! description will fit one piece of land, as well as another, on the heads of Beaver and Big Cross Creek. They' are " floating” rights upon either Creek, and the first survey and grant give the title.

There is another fact which makes the principle apply even more forcibly to the plaintiff’s case. He had a survey upon his entry, and located his land, in 1846. Admit, that, as against the State, the plaintiff is not concluded by his election, and that the same liberal construe ■ tion will allow him to shift his location to other vacant land by a second survey, before he takes his grant; this cannot be tolerated, as against an individual, who, before the second survey, makes an entry and takes out a grant. The plaintiff’s entry was too vague. He locates his land by the first survey; this is notice to others, at least until the second survey, that the surrounding land is vacant. It would be most unreasonable to allow him to shift his location, and call upon another, who had perfected his title, to make a conveyance to him.

We think his Honor erred in refusing the motion to dissolve the injunction, and ordering it to be continued, until the hearing.

The injunction should have been dissolved. This opinion will be certified to the Court below'. The plaintiff will pay the costs of this Court.

Per Curiam.

Ordered accordingly.