McDiarmid v. . McMillan

58 N.C. 29 | N.C. | 1859

In 1850 the defendant made an entry of a tract of land (a part of which is that in controversy) which he had surveyed in February, 1851, and in January, 1853, he paid the purchase money and took a grant from the State. Shortly after obtaining the grant the defendant entered into possession, and had the same in possession at the time the plaintiff's bill was filed.

In December, 1852, the plaintiffs made eight entries of land in the same vicinity, the first of which is as follows: "Daniel McDiarmid and Daniel Turner enter 640 acres of land in Richmond County on the south side of Big Muddy Creek, beginning at or near the ford of the creek where the Rockingham road crosses." The seven other entries are described as "adjoining the first and each other." On 27 November, 1854, they caused these entries to be surveyed, and on 27 December in the same year they paid the purchase money and took out a grant embracing the said eight entries and covering a part of the land (30) contained in the above mentioned grant of the defendant. The plaintiffs insist in their bill that the defendant's entry having lapsed became void as to their junior entry, and that the grant which he obtained thereon was of no validity in equity, and they pray that the defendant shall convey to them the title to so much of the premises as is covered by their grant and also included in his grant.

The defendant, in his answer, alleges that the lands in controversy had been granted previously to one Alexander McMillan and to one David Allison, and that it was not subject to entry when the plaintiff made his entry, and that his grant founded thereon cannot be upheld in equity. There are several other matters urged against the plaintiff's equity and in support of defendant's title, but as the opinion of the Court is based on a consideration altogether independent of these views, it is deemed unnecessary to notice them or the testimony put in by both sides in relation to them. The plaintiffs are not entitled to relief, because their entries are too vague to amount to notice or give them any priority.Monroe v. McCormick, 41 N.C. 85, is decisive. In that case (which is founded upon Harris v. Ewing, 21 N.C. 369; Johnston v. Shelton,39 N.C. 85) it is held, "Where 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 law such entries are not void as against the State. It is not material to the State what vacant land is granted, but such entries are not allowed to interfere with the rights of other citizens, and are 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 vague entry and afterwards take from another land which he had in the (31) meantime entered and paid for." "Where 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."

The first entry of the plaintiffs, on which the other seven turn as a point, is in these words: "Daniel McDiarmid and Daniel Turner enter 640 acres of land in Richmond County on the south side of Big Muddy Creek, beginning at or near the ford of the creek where the Rockingham road crosses." Admit that this reference to "the ford" on the creek fixes a point to begin at with sufficient certainty, what course is then to be taken — up or down the creek ? If off from it, at what angle? What shape is the land to lie in — a square, a parallelogram, or some irregular figure? No adjacent tracts are called for and nothing whatever whereby it can be made certain. If this conclusion required authority it is furnished by Johnston v. Shelton. supra. There the description was "640 acres of land, beginning on the line dividing the counties of Haywood and Macon, at a point at or near Lowe's Bear-pen on the Hog-back Mountain, and running various courses for compliment," and the Court, admitting that the reference to Lowe's Bear-pen on the Hog-back Mountain in the dividing line of the two counties, fixed a point to begin with with sufficient certainty, held the entry to be too vague, "for it cannot be told whether the land is to be laid off by running east or west on the county line, nor how far in either direction, neither by course or distance or natural objects or other lines, or any other thing."

Horton v. Cook, 54 N.C. 272, was cited for the plaintiffs. That case, however, is distinguished from the cases cited above, in the opinion of the Court, on the ground that the beginning corner was fixed at a certain tree in a certain line of another tract, and "it mentions the headwaters of the creek on which and the tracts of land belonging to other persons betweenwhich it is located."

(32) Without reference to the other questions raised by the pleadings, we are of opinion that the bill must be dismissed because of the vagueness and uncertainty of the plaintiffs' entries.

PER CURIAM. Bill dismissed.

Cited: Berry v. Lumber Co., 141 N.C. 393; Bowser v. Westcott,145 N.C. 59.