Cain v. Downing

Walker, J. This case seems to have been considered in the court below by the protestant and the judge, in one aspect of it, as if it was a contest between parties holding senior and junior entries, in which case it must appear, in order to defeat — 595 — tbe junior enterer wbo first takes out a grant, tbat be bad notice of tbe prior entry, and tbe description of tbe land therein, for tbat reason, becomes very material. It must be sufficiently accurate or specific to notify tbe junior enterer of tbe prior entry. But there is no such question in this proceeding. It was brought under Revisal, sec. 1109, which provides tbat “if any person shall claim title to or an interest in tbe land covered by an entry, or any part thereof, be shall file bis protest in writing with tbe entry taker against tbe issuing of a warrant thereon,” and then tbe required issue is made up for trial in tbe Superior Court. It will be observed tbat tbe protestant must be a person wbo “claims title to or an interest in tbe land covered, by tbe protested entry,” whereas in this case tbe plaintiff, instead of admitting or alleging tbat tbe land is covered by tbe entry, is strenuously denying and combatting tbat very fact, by contending that tbe description in tbe entry is too vague and uncertain to cover or describe any land at all. Tbe object of a protest, under this statute, was to prevent double or plural entries, or, in other words, tbe entry of land which was not vacant or not subject to entry, having already been appropriated, and is predicated, necessarily, upon the formal sufficiency of tbe entry. Tbe j)rotestant starts out by denying tbe existence of this very fact, which constitutes tbe essential basis of bis protest, to wit, tbat tbe entry covers land belonging to him and which tbe State bad no right to grant again, having already parted with its title. It was early said, in Harris v. Ewing, 21 N. C., 369, tbat an entry is not absolutely void in any case, merely because it is not as “special” as tbe party could have made it by tbe use of all tbe indicia, internal and external, supplied by tbe act as evidence of identity, but it is valid or invalid in respect of a subsequent enterer according to tbe fact tbat be may or may not have sustained loss by the want of particularity in it. “It is plain tbat it was not intended tbat tbe entry should be so specific as entirely within itself to identify the land by its boundaries, because tbe same statute commands a survey to follow tbe entry at short interval, and in tbe seventeenth section points out tbe means of identity to be set out in tbe certificate of survey. Tbe truth — 596 — is tbat tbe interest of tbe State, as vendor, was not at all concerned in tbe entry’s being more or less special. Tbe quantity was alone important to ber, because tbat regulated tbe price. Again, tbe entry bas never been considered in tbis State as a constituent part of tbe legal title, and for tbat reason sucb precision in its terms is not necessary as will upon tbeir face connect and identify tbe land granted witb tbat entered. It appears to tbe Court, therefore, tbat a vague entry is not void, as against tbe State, but gives tbe enterer an equity to call for tbe completion of bis title by tbe public officers. If it be not void against tbe State, it is a necessary consequence, as we think, tbat it is likewise not so as against a subsequent purchaser from tbe State witb notice. . . . We have before stated tbat tbe only purpose on which a special entry is preferred to a general and vague one is to give notice to a second enterer. If tbat be correct, tbe' specific notice established in tbis case must supply tbe original defect in tbe entry. It is a defect which does not avoid it altogether, but only displaces it when otherwise it would prejudice tbe ignorant and tbe innocent.” And tbis idea, tbat certainty in tbe entry is required in order to protect innocent subsequent purchasers of tbe land from tbe State, tbat is, junior enterers, runs through all tbe cases upon tbe subject. Johnstone v. Shelton, 39 N. C., 85; Munroe v. McCormick, 41 N. C., 85; Fuller v. Williams, 45 N. C., 162; Currie v. Gibson, 57 N. C., 25; Ashley v. Sumner, 57 N. C., 123; Grayson v. English, 115 N. C., 358;. Fisher v. Owen, 144 N. C., 649. It was said by Judge Pearson in Munroe v. McCormick, sufra, and quoted witb approval by Judge Battle in Fuller v. Williams, tbat “when one makes an entry so vague as not to identify tbe land, sucb entry does not amount to notice, and does not give any priority of right as against another individual, who makes an entry, bas it surveyed, and takes out a grant. By a liberal construction of tbe law, sucb entries are not void as against tbe State. It is not material to tbe State what vacant land is granted.” And Justice Avery, in Grayson v. English, supra, quoted approvingly what is said by Chief Justice Ruffin in Harris v. Ewing, supra: “It appears to tbe Court, therefore, tbat a vague entry is not void as against — 597 — tbe State, but gives tbe enterer an equity to call for tbe completion of bis title by tbe proper public officers.” Justice Con-nor said in Fisher v. Owen, supra, after referring to and quoting tbe language of tbe statute in regard to tbe description of land in an entry: “Does tbe description in tbe entry, under wbicb plaintiff claims, comply witb these requirements? It. will be observed tbat we are not discussing tbe question 'whether tbe entry is sufficient, after survey is made and grant issued by tbe State, to vest tbe title. The State alone is interested in this question.” So in Ashley v. Sumner, 57 N. C., 121, Judge Pearson again said tbat “it is tbe policy of tbe public to have tbe vacant land appropriated by individuals. So far as tbe State is concerned, it is a matter of indifference who appropriates tbe land, provided it be paid for. Upon this ground it is settled tbat where an entry is made in terms of general description, it may be made certain, and tbe particular land identified by a survey, if it be done before tbe right of another enterer has attached.” All of wbicb simply means tbat it is competent to lay what is called a “floating” entry in accordance witb tbe established policy, and it is in itself valid as between tbe State and tbe enterer, for tbe State is indifferent as to what vacant land is taken up by entry, but tbe en-terer takes tbe risk of bis intended appropriation of public land being defeated, if be fails to identify it witb certainty by a survey in such a way tbat others will have notice as to tbe location of tbe land described in tbe entry; but so long as there is no subsequent entry upon wbicb to challenge bis right, tbe first entry is perfectly valid. If an entry is void for uncertainty as against a subsequent enterer or purchaser from tbe State, it nevertheless is sufficient to sustain a grant issued upon a definite location by a survey theretofore made wbicb will be good as between tbe State and tbe grantee. Lovin v. Carver, 150 N. C., 710. After stating, in Call v. Robinett, 147 N. C., 617, tbat tbe vagueness of an entry may be cured by survey, under tbe statute, identifying tbe land, and notice thereof to a subsequent enterer, or what is equivalent thereto, tbe Court cites and quotes from Currie v. Gibson, 57 N. C., 25, as follows: “When the terms of description in wbicb an — 598 — entry is made are so vague as not to identify any lands, tie entry is not void, and tie defect may be cured by tie survey, so as to make tie grant whici issues in pursuance thereof valid as against tie State.” And it is also good against every one wio ias not acquired a prior claim or right to tie land, or an equity therein as a purchaser for value without notice of tie prior entry. If, therefore, protestant or any one under whom he rightfully claims ias received a grant for tie land from the State, or ias otherwise acquired tie title as against tie State, so that its right ias been divested, that right or title will prevail against tie enterer, even if he should hereafter survey tie land and take out a grant therefor with a perfect description; and if he ias such right or title, he may also protest tie entry under tie statute. But if he ias no right or title to protect as against tie entry, the latter is to be taken as valid, as tie State does not contest it, and, as ias been said, ias no interest to do so. All tie cases emphasize tie distinction between an entry which is valid between tie State and tie enterer, and yet invalid as to a subsequent enterer without notice wio first obtains a grant. If tie principles thus settled are applied to this case, tie error of tie court in adjudging tie entry void on its face is apparent. Tie enterer offered to prove that tie land could be located by tie calls of tie entry, and also that it is vacant land, being completely surrounded by tie lands of tie other proprietors named therein, but this was excluded, and, without any opportunity to locate his entry by a survey according to tie statute, and without the least showing that tie protestant ias any interest in tie land or any right to challenge tie validity of tie entry, tie enterer was nonsuited. He was summarily dismissed from tie court without any chance to establish tie facts by proof, if it was necessary for him to do so, in order to prevail against a plaintiff wio had shown no title to tie land or any interest whatever therein. But assuming, for tie sake of discussion, that tie whole burden rested upon him (Walker v. Carpenter, 144 N. C., 674; Lumber Co. v. Coffey, ibid., 560), it was held in tie later case of Bowser v. Wescott, 145 N. C., 56, that a protest, as authorized by tie statute, Revisal, sec. — 599 — 1709, “is a simple proceeding, under tbe entry laws, to ascertain if the enterer, so fair as the protes'tant only is concerned. has a right to enter the land described in the entry.” (Italics ours.) So far as the record in this case shows, the protestant has not only no shadow of title or claim to the land proposed to be entered and surveyed by defendant, and for which he will ask for a grant from the State, but he is not even an occupant of the land. But apart from this consideration, the en-terer proposed to prove that the land was subject to entry) and that he was entitled to have it surveyed, and further, that it was accurately described in the entry; but was not permitted to do so. Can it be that an entry will be vacated upon such a showing? We think not. Besides all this, the land was sufficiently described and bounded so as, at least, to let in parol evidence for the purpose of identifying and locating it. It substantially complies with the directory provisions of the statute. Revisal, sec. 1707; Harris v. Ewing, 21 N. C., at pages 373, 374. But the land is described as being 200 acres, near Colly Swamp, in Colly Township and in and around Ditch Bay, adjoining the lands of J. H. Downing, A. E. Martin, Kate Owens, and others, and being “a parcel or tract of land vacant, unappropriated, and subject to entry.” It would seem to be as definite as the descriptions held to be good in Horton v. Cook, 54 N. C., 270, and Farmer v. Batts, 83 N. C., 387. In Horton v. Cook the only certain element in the description was the “chestnut tree,” the other calls being far more indefinite than those in this case. The land was described as lying “on the headwaters of Elk Creek and between the lands of other persons,” but how far from them, or whether it touched them or not, did not appear. No course or distance was given. The description here is a certain tract of vacant land near Colly Swamp, in Colly Township, in and around Ditch Bay, and adjoining the lands of several persons named, and others, containing 200 acres. It is possible that 200 acres of vacant land can be found answering that very description, and it may be that it is the only 200-acre tract of vacant land that does. It is quite as certain as the call for a physical object or point and thence running various courses (or any direction) for complement, — 600 — as in tbe Horton case. When it is described as vacant and unappropriated land, it means land owned by the State at tbat place or not taken np by entry, wbicb is as definite as if it bad said tbe uncultivated land of a person named, wbicb would bave been sufficient, under Farmer v. Batts. "What is required by tbe law is not absolute certainty, but a description sufficient to be fitted to tbe thing intended to be designated. In tbe case of Horton v. Cook, 54 N. C., at p. 213, tbe Court said: “Tbe objection to tbe vagueness and uncertainty of tbe defendant’s entry, and its effect upon bis rights, is equally against tbe plaintiff. Sucb an objection would bave come witb more force from tbe plaintiff, to repel tbe alleg-ation of notice of tbe defendant’s entry, if be bad obtained tbe first grant; but in truth, tbe defendant’s entry was sufficiently definite and certain to fix tbe plaintiff witb tbe actual notice wbicb, it is clear from tbe proofs, be bad of it. It specifies a certain tree, in a certain line of another tract of land, at wbicb it commences; and it mentions tbe headwater of the creek on which, and tbe tracts of land belonging to other persons between wbicb, it is located.” There is no suggestion in this case tbat protestant is a subsequent enterer or has any interest tbat may be prejudiced if this entry is upheld. Tbe case seems to bave been tried as if it were an ejectment or an action to settle conflicting titles, or to remove a cloud from plaintiff’s title; whereas it is simply an attack upon an entry, which is valid as against tbe State and all others not having some interest or equity in tbe land in question, as we bave already seen. If, as tbe case is now presented, we should bold this entry to be void for uncertainty, there would be no sucb thing as a “floating” or “shifting” entry, to be definitely located by a survey under tbe statute, and yet sucb entries bave been distinctly recognized, as will appear by reference to tbe cases we bave cited. • There was error in tbe ruling of tbe court. Error.