Currie v. Gibson, 57 N.C. 25, 4 Jones Eq. 25 (1858)

June 1858 · Supreme Court of North Carolina

57 N.C. 25, 4 Jones Eq. 25

JOHN D. CURRIE against NATHANIEL P. GIBSON.

A prior entry, which is vague, acquires no priority as against other enterers. until it is made certain by a survey.

Cause transmitted from the Court of Equity of Eichmond County.

The bill, in this case, was filed for an injunction, and for a reconveyance of the land in controversy, upon the ground that the defendant had notice of a prior entry of the plaintiff, and that, notwitstanding such notice, he made his entry and had the land surveyed, and obtained a grant before the plaintiff obtained his grant. The plaintiff’s entry is in these words : “John D. Currie enters one hundred acres of land in Eichmond county, on the south side of Eeedy branch, adjoining his own lands and the lands of James Mclunis, deceased.” This entry was made 25th of December, 1852; it was surveyed on the 30th of September, 1854, and a grant obtained on the 8th of November, 1854. The defendant, made his entry of the same land on the 17th of January, 1853, had it surveyed and obtained a grant on the 5th of March, 1853.

After obtaining his grant, the plaintiff took possession and commenced using the timber, for which defendant brought an action of trespass at law.

The prayer is for an injunction and for a conveyance of the legal title.

The defendant denied that he had notice of the plaintiff’s entry of the land; he says that he knew that he had made an entry, but supposed it related to other vacant land adjoining him.

There was replication, commissions were taken out, and proofs taken as to the defendant’s knowledge of the land which plaintiff had entered; but as the opinion of the Court super-cedes the enquiry, they need not be stated.

Eell/y, for the plaintiff.

No counsel appeared for the defendant in this Court.

Pearson, J.

Where the terms of description in which an entry is made are so vague as not to identify any land, the entry is not void, and the defect may be cured by the survey, so as to make the grant which issues in pursuance thereof, valid as against the State. This liberal construction of the law is put on the ground that it is not material to the State what vacant land is granted. Munroe v. McCormick, 6 Ire. Eq. Rep. 85; Johnson v. Shelton, 4 Ire. Eq. Rep. 85; Harris v. Ewing, 1 Dev. and Bat. Eq. 369.

But such vague entries are not allowed to interfere with the privilege that other citizens have to make entries until the defect is cured by the survey, whereby the land is identified, and is made capable of being the subject of notice, for there cannot be notice of that which has no identity.

In Harris v. Ewing, supra, there was a decree against one who made his entry after the prior vague enterer had actually surveyed, and who had notice of the survey. In Johnson v. Shelton, supra, the Court say “ that was going beyond the words of the act upon a very liberal construction. It certainly can be carried no further in support of vague entries which would be an encouragement to negligence and deception in enterers.”

In our case, the defendant made his entry before the plaintiff had surveyed, and to deprive him of a right acquired before the plaintiff had identified any land, as the subject of his entry, would be carrying the construction much further than is done in Harris v. Ewing, or any other case, and would not only go beyond the words, but would violate the spirit and do manifest injustice.

The plaintiff alleges that the defendant had notice of his entry. The defendant positively denies having notice at the time he made his entry. It is unnecessary to examine the proof, because it is impossible that the defendant could have had notice of that which had no identity; and the character of the evidence taken in this cause shows the necessity of adhering to the principle established in Munroe v. McCormick, supra, “where an entry is vague it acquires no priority until it is made certain by a survey.”

Per Curiam. Bill dismissed.