On 17 January, 1838, the plaintiff made an entry of the vacant land "lying on the north side of Clear Creek in Buncombe County, adjoining the lands of Edmonson, the said George Allen, and Edward Shipman, and running so as to include the rock quarry," and afterwards had a survey and obtained a grant for 19 acres, including the quarry, dated 20 December, 1838. On 19 November, 1838, the defendant obtained a grant for 95 acres and 79 poles, purporting, to be issued on an entry made 7 January, 1831, and surveyed on 10 November, 1838, which includes the land granted as above to the plaintiff. The bill state that, a few days after the plaintiff made his entry, he informed (253) the defendant that he had made it and that it included the quarry, and that the defendant had full knowledge that the plaintiff had caused his survey to be made and it included the rock quarry, which was a notorious place well known to the defendant and the people of the neighborhood generally. The bill further states that, before that time, the defendant had claimed the said rock quarry under a conveyance made to him of a tract of land by one Edward Shipman, which was supposed to include it; and the plaintiff discovered that the same was not within the lines of the land granted to Shipman and by him sold to the defendant, and then he made his entry, and communicated it to the defendant, as before mentioned; and that thereupon, and with a view to defeat the plaintiff of his entry, and after the plaintiff's survey, the defendant had an entry, which he had made in 1831 for 150 acres, of which the beginning corner was in the mountains at the distance of 2 miles from the *Page 186 quarry, and which was vague in its terms, so surveyed and to include the quarry and the other land granted to the plaintiff, and that, in order to do so, the defendant was obliged to pass directly through four tracts of granted land and to make his tract 180 poles in length, while for nearly the whole length it is only a few yards wide. The bill charges that, in truth, the defendant had no intention, at the time he made his entry, to include therein any of the land granted to the plaintiff, or any of the intermediate granted land, and that when he found the conveyance from Shipman did not cover the quarry, he had it surveyed in the from he did, for the sole purpose of defeating the plaintiff's special entry and survey. The bill further states that the defendant had brought an action of trespass against the plaintiff for taking stone from the quarry, and had recovered therein. The prayer is that the defendant may be (254) declared a trustee for the plaintiff as to so much of the land as was entered by the granted to the plaintiff, and be decreed to convey the same to him, and to repay the damages and costs recovered from the plaintiff, and to come to an account for profits otherwise made by him.
The answer states that on 25 October, 1831, Shipman conveyed to the defendant a tract of land containing 265 acres, by metes and bounds, which the parties believed covered the quarry, which is the subject of dispute; and that on 22 November, 1834, the defendant contracted to sell the same land to the plaintiff (reserving the quarry) at the price of $400, in annual installments of $100, and to convey the same in fee upon the payment of the purchase money, of which the last installment fell due 25 December, 1839, and that they entered into written articles to that effect, in which the defendant obliged himself to convey the said land by the description specified in the deed of Shipman to him, expressly, however, "excepting and reserving to himself and his heirs and assigns 10 acres out of said land, lying on the southwest part of said tract, including the rock quarry in the center of a square, with the right of way through said land to pass to and from the said quarry." The deed from Shipman and the articles with the plaintiffs are exhibited, and agree with the statements of their contents in the answer. The answer admits that the plaintiff informed the defendant, in February, 1838, that the plaintiff had ascertained by a survey that the Shipman deed did not include the quarry, and that the had entered it; and it states that the defendant did not know whether it was in fact vacant or included in the Shipman tract, and that he determined, with the intention of protecting his own rights and out of abundant caution, to guard against a fraud on himself by the plaintiff in defeating his claim to the quarry, thus agreed to be reserved, to have the quarry included in a survey and grant upon an entry he had made in 1831, which might be made to extend to *Page 187 it, as it called for the waters of Clear Creek and the lines of (255) Shipman; and that accordingly he did so. The answer states that, when he made his entry of 1831, the defendant "had no correct idea of the lines of the many tracts of land lying of supposed to lie adjoining or nearly so, or of the other tracts in the vicinity; and, of course, that he could not have intended it to cover any particular quantity or parcel." And the defendant insists that the plaintiff cannot call in question the right of the State to grant her land in any form, or of the defendant to make his survey upon the elder entry, made in good faith, so as to take in any land all small pieces of vacant land that might be found between the lines of the other tracts. The answer further states that, after both grants were issued, that is to say, on 1 July, 1839, the plaintiff accepted a deed from the defendant for the land sold to him, describing it according to the lines and corners in Shipman's deed, and expressly excepting and reserving the 10 acres including the rock quarry in the same terms in which that reservation was made in the articles; and so it appears by the deed, which is filed as an exhibit. And the answer insists it was a fraud on the part of the plaintiff to make an entry of the land which it had been thus agreed between the parties should belong to the defendant; and that, by reason thereof, the plaintiff ought not to have the assistance of the court. So far as the rights of the parties depend merely upon their entries and grants, and without reference to any contract or other equity between them, the plaintiff seems to be clearly entitled to the relief seeks. The defendant has not filed a copy of his entry, and from the omission and the inferences from the answer it (256) must be understood to be a vague one, not specifying the land entered by the defendant or that granted to him. Indeed, it is clear the defendant did not intend to embrace the disputed land in his entry; for, upon being informed that the plaintiff had entered the quarry, he said to a witness that the entry should do him no good, as he had an entry on the mountain which he could run down so as to include the quarry; and, upon being reminded that there was granted land between his entry and the quarry, he replied that made no difference, as he could pay the State for granted land, if he chose, without hurting his title to that which was vacant. Moreover, the contract between those parties shows that the defendant could have had no motive to include in his entry the rock quarry, as he then thought it his under his purchase from Simpson; it is established by proofs that the defendant claimed the quarry under that purpose, and not under an entry of his own, down to the time in *Page 188 1838 when he was informed that the plaintiff had discovered it was vacant and entered it. The case, then, is that the plaintiff entered the land without any knowledge of the defendant's entry, and without the defendant's having an entry in fact which did cover it specifically, or which was designed by him to cover it; and that, with full knowledge of the special entry of the plaintiff, he perverted a previous vague entry of his own, by having it, contrary to his original intention, so run as to include the land entered by the plaintiff, with the express view to defeat him; and that the plaintiff went on afterwards in due time to survey his entry, pay the purchase money, and get a grant, without even a knowledge on his part, as far as appears, that the defendant had made any such entry or survey or obtained a grant, until after the grant to the plaintiff had issued. Clearly upon these facts the plaintiff would be entitled to a conveyance from the defendant; for, by reason of the vagueness of his entry, the defendant stands in the same situation (257) as a junior enterer, with notice of the prior entry of the plaintiff, and the right of the plaintiff is the preferable one. Plemmons v.Fore, 17 N.C. 312; Johnson v. Shelton, 39 N.C. 85.
But the defendant insists that he had a right thus to intercept the plaintiff, because the plaintiff knew the defendant claimed the quarry, and in the contract between them that and 10 acres of land were reserved to the defendant, so as to make it a fraud in the plaintiff to get the land by entering it himself. But whether it be a fraud or not depends upon the obligations imposed on the plaintiff by the contract, and no equity is perceived to have been raised by it to restrain the plaintiff of the liberty in common with other citizens, of entering this land. The reservation of it in the articles makes it evident that the parties thought it was included in the conveyance to the defendant. But, in fact, it was not, and was vacant, and so was the subject of entry by any one. A person of a delicate sense of propriety, situated as the plaintiff was, might not have thought himself at liberty to make an entry, but have rather thought it a duty of kindness and honor to advise the defendant that the land was vacant, so as to let him have the opportunity of entering it. But a similar obligation rests upon every man who finds out that a person is living on or improving vacant land under a belief that it is his own. Yet such land is subject to entry by any one, as well as by the occupant, and the court cannot restrain the right, notwithstanding the hardships, unless there be something peculiar in the relation of the parties, binding in conscience on the one to take care of the interest of the other. There does not seem to be anything here to establish a fiduciary relation between the parties. It was, indeed, their contract that the plaintiff should not have the quarry under his purchase from the defendant, but is was no part of it that the plaintiff should assure to *Page 189 the defendant his supposed title to the land reserved or though (258) to be reserved, or that the plaintiff should not purchase it from any other person to whom it might belong. If the plaintiff had not purchased from the State, any one else might; and the plaintiff, by his contract with the defendant, neither acquired access to any peculiar means of information nor obliged himself to refrain from availing himself of any he might first gain as to the title of the land, which was alike open to the defendant and to all the world. Therefore, there is no ground for saying that the plaintiff took an undue advantage of the defendant, which might not be said with equal truth of any one who should have entered the land with a knowledge that the defendant claimed it, and, though mistaken, believed it to be his own. It cannot be declared, therefore, that the defendant's fraud in endeavoring to defeat the plaintiff of his entry was justified or excused by its necessity in order to counteract a fraud projected by the plaintiff against the defendant; and the plaintiff must have the decree he asks for, a conveyance and account. The plaintiff is not only entitled to receive back the sum he paid for damages in the action at law, but also the costs adjudged to Gilreath, the plaintiff in that action. The present plaintiff's own costs at law, if any, he must submit to lose, as he had no legal defense, and it was his folly not to apply at once for relief in equity. Keaton v. Cobb, 16 N.C. 439.
PER CURIAM. Decreed accordingly.
Cited: Gilchrist v. Middleton, 108 N.C. 708; Kinney v. Munday,112 N.C. 831.
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