Grayson v. . English , 115 N.C. 358 ( 1894 )

The question that gives rise to this controversy is, whether the plaintiff is the owner of the equitable as well as the legal estate of the land in controversy. If the description contained in the older entry of the defendant so identified the land intended to be covered by it that the plaintiff could, upon reading it and prosecuting any inquiry as to boundaries suggested by its terms, have ascertained that it was the same land for which he subsequently obtained a grant under the junior entry, then the latter, as junior enterer, took with constructive notice of the inchoate equity of the senior enterer. It is not to be understood that any description in an entry, not void upon its face for uncertainty (however imperfect as a means of identification it may be) operates as constructive notice to all persons making subsequent entries of (362) the land that such description was intended to embrace. The rule in reference to the validity or sufficiency of the descriptions in entries as between the State and the enterer is much more liberal than that applicable to deeds and to contracts for sale of land between individuals. In Harris v. Ewing, 21 N.C. 374, Chief Justice Ruffin said: "It appears to the Court, therefore, that a vague entry is not void as against the State, but gives the enterer an equity to call for the completion of his title by the public officers." In the subsequent case of Johnston v.Shelton, 39 N.C. 85, the same learned judge, in speaking of the validity of an entry and its sufficiency as notice, said: "Its vagueness renders it void as against a subsequent enterer who surveyed and paid his money before the plaintiffs had made their entry more specific, if the expression may be allowed, by a survey identifying the land they meant to appropriate." As between the State and the enterer, the inchoate equity created by making an entry, not containing a specific description that confines it to a particular place, is "in some degree a floating right to have a certain quantity of unappropriated land anywhere the enterer may select within two years on a certain stream or mountain in the county." Johnston v. Shelton, supra. While, therefore, an entry containing a description that would be altogether insufficient in a contract for sale or a conveyance of land was not void as between the State and the enterer, it was, nevertheless, not notice to subsequent enterers until its location had been made certain by an actual survey. Constructive notice might be given to one desiring to enter the same land in two ways, and whenever given by either method the junior enterer, being affected by it, would hold under any grant taken out by him, subject to the right of the person holding the older entry to take out a grant also and have the senior grantee declared a trustee and ordered to convey to him. (363) Nunn v. Mulholland, 17 N.C. 381. The two methods of affecting all subsequent enterers with constructive notice are:

1. By making a survey of a floating or vague entry or one containing an indefinite description, and thus identifying that which was before uncertain. Currie v. Gibson, 57 N.C. 25; Munroe v. McCormick, 41 N.C. 85;Johnston v. Shelton, supra; Harris v. Ewing, supra.

2. By making the description "so explicit as to give reasonable notice to a second enterer of the first appropriation." Johnston v. Shelton,supra, at p. 92; Harris v. Ewing, supra, at p. 372. "The object of description is to identify the thing for which the contract is made, and whatever means will effect that end must be all-sufficient." Harris v.Ewing, supra.

The statement sent up by the parties as the foundation of a controversy without action contains a description which is certainly not so vague as to affect the validity of an entry. Indeed, upon its face it seems probable that it may have pointed to extrinsic proof, such as would have made the identification complete. If it does, then it was constructive notice, and the plaintiff holds in trust for the defendant. The equity of the defendant depends upon this question.

Two entries were made on the same day, in the following terms:

"No. 2252. R. Don Wilson enters 640 acres of land lying on both sides of Huntsville or (or and) Haney Mountain, extending from the north end along the summit and down both sides to deeded lands adjoining lands of Mills Higgins, Dr. Gilbert, John Jarrett, the Prices and others. This 25 November, 1868."

And on the same day a like writing on the entry-taker's book was made, in the following language, to wit:

"No. 2253. R. Don Wilson enters 640 acres of land adjoining the above, the lands of Early Gurley, Charles Dixon, Butler, the Powell place, Jason Allen's Dealsville tract, extending along the summit of the Huntsville Mountain and down both sides to deeded land. (364) This 25 November, 1868."

On 30 December, 1870, R. Don Wilson procured a grant to be issued to him by the State of North Carolina on the last-mentioned writing in entry-taker's book.

It would seem that the description contained in Entry No. 2252 was so drawn that it must include all vacant land on the summit of Haney Mountain at the north end and extending down from the summit on the east and west sides of the summit to deeded land or lands for which claimants (several of whom are mentioned) had titles. The second entry, No. 2253, upon which the junior grant, through which defendant's claim was issued, is located by its terms so as to adjoin the other entry on the south, include the summit further south and to extend from said summit on either side so as to join the deeded land of Early Gurley and others mentioned. The land intended to be appropriated must have been surveyed so as to join the lands of the persons named on either side of the summit, and on the south and on the north so as to extend to any vacant land surveyed under the preceding entry, or, if none should be found, to the lands of adjacent owners named in said entry. Though the more advisable practice in such cases is to locate the bounds of the entry by means of an actual survey, and thus make the sufficiency of the description appear more clearly by proof of extrinsic facts to which it points, yet, in this particular case, we must hold, without any parol proof, that the land entered appeared upon its fact to lie between the tracts of the persons mentioned therein, or, in case no vacant land was found to constitute the northern boundary, then the lands of persons named in Entry No. 2252. Instead of specifying a beginning corner in a certain line and lying on the headwaters of a particular creek, as inHorton v. Cook, 54 N.C. 273, the entry in our case is declared to include the summit of a certain mountain — in effect, to lie between the deeded lands of certain owners and to lie south of certain other deeded tracts or any vacant land that might be found between (365) them along the northern end of said summit. While we would have been saved from some hesitancy by incorporating into the affidavit, as a part of the statement of facts agreed, some proof of the location of the lands of the adjacent owners, we conclude that the senior entry contained upon its face a sufficient description to affect subsequent enterers of the same land with notice of the equity of Wilson. We deem it proper to say, however, that it must almost necessarily be more advisable for one or the other of the parties in any case where the right to recover in an action or an a counterclaim depends upon the question whether an entry is so definite as to affect subsequent enterers with constructive notice of its location, to offer testimony, if the facts are in dispute, and have a finding by a jury or by consent by the court, of the developments made by an actual survey.

For the reasons given, the judgment of the court below is

Affirmed.

Cited: Wyatt v. Mfg. Co., 116 N.C. 277; Carr v. Coke, ib., 252; Fisherv. Owen, 144 N.C. 654; Call v. Robinett, 147 N.C. 617; Lovin v. Carver,150 N.C. 711; Cain v. Downing, 161 N.C. 596.

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