Call v. . Robinett

*617 OoNNOR, J., after stating tbe facts: Defendant proposed to attack tbe grant under wbicb plaintiff claimed, for that tbe entry was vague, indefinite and incapable of location by survey- — -that it was a “shifting entry,” and tbe survey did not cover tbe lands indicated in tbe entry. We .are inclined to tbe opinion that tbe entry complies with tbe requirement of tbe statute. It fixes witb reasonable certainty tbe beginning point — refers to tbe waters of Elk Creek and adjoining lands. Tbe cases decided by this Court illustrating tbe entries wbicb are too vague, and those capable of location by survey, are cited and discussed by Mr. Justice Avery in Grayson v. English, 115 N. C., 358, and in Fisher v. Owens, 144 N. C., 649. If, however, tbe entry is vague after tbe survey and issuance of a grant by tbe State, it is not open to defendant to attack it. In Currie v. Gibson, 57 N. C., 25, Pear son., J., said: “When tbe terms of description in wbicb an entry is made are so vague as not to identify any lands, tbe entry is not void, and tbe defect may be cured by tbe survey, so as to make tbe grant wbicb issues in pursuance thereof valid as against tbe State.” It cannot be attacked collaterally. Dosh v. Lumber Co., 128 N. C., 84. Tbe cases in wbicb a grant may be attacked collaterally, treated as void upon its face, are pointed out in Holley v. Smith, 130 N. C., 85. Tbe learned counsel for defendant insists that a grant which is not supported by an entry is void. If this be conceded it does not aid tbe defendant, because tbe grant from tbe State recites, as the statute requires, that there was an entry. Tbe description in tbe grant is full and complete. Whether it corresponded to tbe entry was a question to be decided by tbe officers who were empowered to issue tbe grant. A stranger to- tbe title, as in this aspect of tbe case defendant must be regarded, cannot attack tbe grant. It seems that it is valid against tbe State — certainly it is so as against a stranger — and, it would seem equally clear, as against a subse *618 quent claimant under the State. The cases cited by defendant do not militate against this view. The defendant says, conceding that the legal title passed to plaintiff by the entry, survey and grant, he is entitled to have him declared a trustee for his benefit. It is well settled that when an entry is made, and subsequent thereto another person lays an entry and takes a grant, he acquires the title, and the grantee will be declared a trustee for the first enterer; the reason of this being that the first entry entitled the enterer to a prior right or equity to call for the legal title upon complying with the statute, and the second enterer took subject to this prior claim or equity, the entry being notice thereof. The defendant is confronted with two difficulties in this aspect of the case: Eirst, his entry is subsequent to that under which plaintiff claims. Second, his entry is too vague and indefinite to give any notice. It is always held that, to entitle the first enterer to have the grantee declared a trustee, his entry must be sufficiently definite to put the second enterer upon notice. In Johnston v. Shelton, 39 N. C., 85, Ruffin, C. J., says that if the first entry is too vague to put the second enterer upon notice, equity will not aid him. This is a different question from that which we first discussed. There the survey makes the vague entry certain, and the State accepts it and issues the grant. Here the question of notice of the first entry controls the rights of the parties. If the first enterer make his entry certain by survey before the second entry, it is sufficient. So, in Munroe v. McCormick, 41 N. C., 85, Pearson, J., says: “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.” Tested by the decided cases cited in Grayson v. English and Fisher v. Owens, supra, we think defendant's entry too vague to afford notice. It is a “floating entry,” without any definite beginning point. “A stake in S. G. *619 Anderson’s line” is about as vague as it is possible to make it. It calls for no single point from wbicb a survey could be made, and gives no other indicia for that purpose. The der scription'in Johnston v. Shelton, 39 N. C., 85, was: “Beginning on tbe line dividing the counties of Haywood and Macon, at or near Lowe’s bear pen, on the Hogback Mountains,” etc. It was held too indefinite to affect a second enterer. The discussion by Ruffin, C. J., is, as usual, clear and strong. We could not hope to add anything of value to what he says. We concur with his Honor that the defendant’s entry was too vague to give notice of the land intended to be appropriated. Defendant seeks to fix plaintiff with notice by parol evidence of what defendant intended to claim. It has not, so far as our own and the investigation of counsel goes, been decided whether the parol evidence is competent to fix a second en-terer with notice of a former vague entry. The intimation in Johnston v. Shelton, supra, is against defendant’s contention. In Fisher v. Owens, supra, it is said: “A number of expressions are used by the Judges indicating the opinion that the only notice which will be sufficient to protect a vague, indefinite entry is a survey, and, as said by Judge Pearson, the good sense of this principle is manifest.” We concur with his Honor that in any point of view there was no evidence of notice in this case which entitles the defendant, if otherwise entitled, to have plaintiff, adjudged a trustee. Plaintiff, having the first entry, the first survey and the first grant, is the owner of the land. The judgment of his Honor was correct and must be Affirmed.