50 S.E. 857 | N.C. | 1905
This is a controversy without action submitted to the Court upon facts agreed for the purpose of settling the matters in difference between the plaintiffs and the defendant under section 567 of The Code. The plaintiffs claim the land in controversy under grant No. 883 to W. D. Sprague for 640 acres dated 29 December, 1875, and registered in the office of the Register of Deeds of Caldwell County, 31 October, 1878, and by mesne conveyances making a complete chain of title to *315 the plaintiffs, all of which are in due form and registered. The defendant claims title to the land under Grant No. 265 to Wilson Foster for 100 acres, dated 23 December, 1848, and registered in the office of the Register of Deeds of Caldwell County, 5 April, 1895, and by mesne conveyances making a complete chain of title to the defendant, all of which are in due form and registered. It is admitted that both grants covered the land in controversy, and it is also agreed that neither the plaintiffs nor the defendants nor those under whom they claim title have ever held any possession of the land in controversy, or any part of it, included in either of the said grants, except the recent entry by the defendant for the purpose of cutting trees therefrom.
The court being of opinion that upon the facts agreed the plaintiffs ought not to recover, rendered judgment for the defendant. Plaintiffs excepted and appealed.
After stating the facts: The statutes in force in (439) this State for more than a century have permitted "all vacant and unappropriated lands belonging to the State" with certain well-defined exceptions, to be entered and grants taken therefor. Code, section 2751. "To be subject to entry under the statute, lands must be such as belong to the State and such as are vacant and unappropriated." Hall v. Hollifield,
We therefore conclude that in view of the facts set out in the record the plaintiff had not, at the time of the registration of the grant of 1848, acquired by the grant of 1875 any "right, title, or equity" as against the senior grant which gave it priority. Neither (442) grantee had actual possession of the land. The legal title vesting in the first grantee drew the constructive possession, which continued until there was an ouster. It appears that the plaintiff had never taken possession; therefore, the possession is by operation of law in the defendant by virtue of the senior grant. It may be suggested that the construction which we have placed upon the proviso of the act of 1893 practically emasculates it — gives it no operative force. If the defendant had gone into actual possession of the land, thereby ousting the senior grantee, and remained in possession for seven years, he would have acquired title. However this may be, we are not at liberty to give to the words of the proviso any other or larger operation than they have in the law. The act does not profess to confer any right, title, or equity, but to protect such as the junior grantee had at the time of its passage. As he had none as against the senior grantee, he does not come within its provisions. *318
We are of opinion that the judgment of the court below was correct, and must therefore be
Affirmed.
Cited: McAden v. Palmer,
(443)