The plat of the land was as follows:
[EDITORS' NOTE: THE MAP IS ELECTRONICALLY NON-TRANSFERRABLE.] SEE 112 N.C. 534.]
NOTE. — The plaintiffs' lands are represented inside the dotted lines and the defendant's by the dark solid lines. The May lot, No. 2, and the Chestnut Orchard lands are not in dispute. *Page 535 It will be seen that chapter 17 of The Code in relation to entries and grants, does not apply to those of the plaintiffs, for the reason that the lands therein granted were a part of the land acquired by treaty from the Cherokee Indians and are governed by the provisions of what is known as the "Cherokee Land Law," chapter 11 of the Code, wherein a different mode of procedure is prescribed for the acquisition of land from the State previous to 1 November, 1883, when by section 2478 the Cherokee lands were made subject to entry as other public lands.
The plaintiff claims title to that portion of the lands on the (826) plat which is embraced in the dotted lines by virtue of entries made in 1855 and 1860 and grants issued to him as assignee on 10 February, 1890.
The defendant Heighway claims the land embraced within the solid lines under an entry made by defendant Munday on 21 December, 1889, a grant to said Munday, 20 October, 1890, and a deed from Munday to Heighway, 16 March, 1891.
By the claim of the plaintiff he has the senior entries and the senior grants. But the defendant contends that the entries of 1855 and 1860 had lapsed, and that all rights to grants thereunder had been abandoned and lost by long failure on the part of the enterers to take out grants, as, deducting the time between 20 May, 1861, and 1 January, 1870, when the statute of limitations did not run, there was a period of over twenty-six years between the laying of the entries and the taking out of the grants. Defendants deny that plaintiff is the owner and entitled to the possession of the land described in the complaint, that within the dotted lines, and admit the possession by defendants and deny that it is wrongful. Their further defenses and the plaintiff's reply are set out in the statement of the case.
Defendant tendered eight issues covering the evidential questions rather than the issues proper, which should be submitted to the jury. His Honor declined to submit them, and submitted the usual issues in an action of ejectment. We think his Honor might have presented every pertinent inquiry to the jury under the three issues. It was a matter of discretion with him how they should be presented. The matter has been discussed so often of late that we forbear to quote authorities.
Under the general law regulating entries and grants, the entry creates an equity, which, upon the payment of the purchase-money to the State in due season, entitles the party to a grant, and consequently to a conveyance from another party who obtained a (827) *Page 536 prior grant under a junior entry with knowledge of the first entry.Plemmons v. Fore, 37 N.C. 312, and cases cited; Gilchrist v. Middleton,108 N.C. 705; Bryan v. Hodges, 107 N.C. 492.
Section 2766 of The Code prescribes the time within which the enterer shall pay for said land as on or before 31 December which shall happen in the second year thereafter (viz., after the entry), or the entry shall become null and void and the land may be entered by others.
But the law regulating entries and grants of Cherokee lands before 1 November, 1883, provides only such limitations of time within which the purchase-money shall be paid, as will appear in the series of acts collected in chapter 11 of The Code, Vol. II. By section 2465 of The Code, Laws 1852, ch. 119, it was provided at what prices the lands lying in Cherokee County should be sold, and by section 2466 the mode of payment therefor was prescribed as follows:
"It shall be lawful for all persons entering vacant lands in said county of Cherokee to file their bonds, with approved security, with the entry-taker, payable to the State in four equal annual installments, which shall when paid be in full of the purchase-money for the tract or tracts so entered, and upon proof of such payment as herein provided, the Secretary of State shall issue the grant or grants according to the entry and survey thereon, and in case the land shall have been surveyed by authority of the State the grant shall issue according to the survey so made, and not otherwise, and no portion of any tract so surveyed shall be granted without the whole." And this section is made applicable (828) to lands in Macon and Haywood counties by section 2468.
By section 2477 of The Code, which is section 1, chapter 22, Laws 1854-55, ratified February 15, 1855, shortly after the entries heretofore referred to as made in 1855, it was provided that "All persons who have, previous to 15 February, 1855, entered any of the vacant lands in the counties of Cherokee, Macon, Jackson and Haywood, pursuant to an act of the General Assembly at its session of 1852-53, chapter 119, entitled `An act to bring into market the lands pledged for the completion of the Western Turnpike Road,' which have not yet been surveyed, and bonds filed for the purchase-money, according to said entry or entries, shall cause the same to be surveyed and file bonds for the same on or before 1 May, 1856; and in case the said entry or entries be not surveyed, nor the entry-takers of said counties notified within the aforesaid time, that it is his intention to become the purchaser accordingly, then it shall be lawful for any other person, who has entered the same lands, to cause the same to be surveyed and to file his bonds for the same on or before 1 July, 1866; and in case the person or persons who have heretofore entered any of the vacant lands aforesaid *Page 537 shall fail or neglect to comply strictly with this section according to its true meaning, then it shall be lawful for any other person or persons to enter said lands, and be allowed three months to survey and file bonds for the same; and the said time of three months shall be allowed in any other instance from and after the date of said entry, unless otherwise provided for: Provided, and it is the true meaning of this section that the right to take the said lands in whatsoever manner entered heretofore or hereafter shall be regulated according to priority of entry."
And, so far as we are informed, there was no further (829) legislation on the subject until the adoption of The Code of 1883, when section 2478 was inserted, opening said lands to entry as other public lands.
That the equity in the enterer to secure the title may lapse or be abandoned under the general law is evident; and as to the entries No. 8,059 and No. 8,060 on the plat there can be no question that a neglect for many years to comply with the requirements of the statute (section 2477) bars the right of the enterers to take out a grant under those entries.
As to the entry of tract No. 9,360 on the plat of 16 March, 1860, under the provisions of section 2466, quoted in full above, it was the duty of the enterer to file his bonds, with approved security, with the entry-taker of Macon County, payable to the State in four annual installments.
It could hardly have been intended by the law that as to those entries made after 1856 there should be no limit upon the enterer as to the time in which he was to perfect his right to a grant. Indeed, the requirement that he should give bonds, the last of which was to become due in four years after the entry, would indicate in strong terms the intention of the law that the land should be paid for in that time. If, however, he should be allowed a reasonable time after the maturity of the last bond to pay it and take out his grant, by all analogies twenty years would raise a presumption of abandonment.
In Pennsylvania it was held that "ordinarily abandonment involves a question of intention, and is for the jury on all the circumstances, but where it depends on lapse of time, and there are no repelling circumstances in proof, it becomes after seven years a conclusion of law to be declared by the Court." Emery v. Spencer, 23 Pa. St., 271.
The entries of 1855 are governed by the act of 1854-55, and (830) had lapsed by failure to comply with that act. The entry of 1860 being governed by no express limitation of statute, it was the duty or privilege of the enterer to have paid his bonds and taken out his grant within a reasonable time. And without announcing any rule as to what *Page 538 length of time would be reasonable in every case, we have no hesitation in holding that the period between 15th March, 1860, and 10th February, 1890, deducting the period in which the statute of limitations did not run, was unreasonable for delay on the part of the plaintiff and his assignor, and that the defendant Munday might have entered the same land, even with notice of the previous entry, unaffected by any equity of the plaintiff under the old entries.
It is not to be understood, however, that the grants to the plaintiff upon the lapsed entries are void. "Because a grant is taken out upon an entry which has lapsed by the efflux of time it does not follow that it is void." Wilson v. Land Co., 77 N.C. 445. It was held in Gilchrist v.Middleton, supra, that where a grant was issued in 1847 under an entry made in 1801 the grant was not void on its face, but the enterer had a right to call for a grant even 46 years afterwards, provided the purchase-money was paid to the State before the 31st of December of the second year after the entry was made.
We do not understand that the defendants undertake in this case to attack the plaintiffs' grants collaterally, for it is well settled that a grant can only be vacated by proceedings under the statute, sections 2786 and 2788 of The Code. Crow v. Holland, 15 N.C. 417. But as very fully pointed out in Gilchrist v. Middleton, supra, by Mr. Justice Avery, where he cites many authorities: "Where controversies have originated in such conflicting claims it has sometimes happened that the grantee under the senior grant issued on the junior entry brought an (831) action of ejectment against the grantee in possession claiming under the junior grant and senior entry, and the latter, being unable to set up his equity as a defense in a court of law, filed a bill in a Court of Equity asking that the former be declared a trustee and ordered to convey the legal estate, and that pending the investigation of his claim for such relief, the plaintiff in the action of ejectment should be enjoined from further proceeding. In other instances the junior grantee was evicted and subsequently filed his bill. If in such suit the plaintiff succeeded in proving that the defendant had either actual or constructive notice of the older entry when he took out his grant, and that the older entry covered the same land embraced in it, then the court would declare the defendant a trustee for the plaintiff, and compel him to convey the legal title. But the burden was upon the claimant under the junior grant then, as it is now, to establish this fraud in a direct proceeding in which it must be distinctly alleged. Currie v. Gibson, 57 N.C. 25; Monroe v.McCormick, 41 N.C. 85; Allen v. Gilreath, ib., 252."
Since the distinction between actions at law and suits in equity have been abolished the plaintiff may bring his action or the defendant his counterclaim, seeking this relief, in the one action under the Code of *Page 539 Civil Procedure. In our case the plaintiff seems to have the senior grant and the senior entry. The defendant, however, in his defense or counterclaim, sets up his equity alleging the lapse and abandonment of the senior entry, and other defenses. But the defendant does not seek to vacate the first grant. His demand is that the plaintiff be declared a trustee for him, and required to make him a deed for all land embraced in plaintiff's grants, which is also covered by defendant's grant. His demand repels the position that plaintiff's grants are void between these parties. It is founded on the very contrary position (832) that they are not void, but that the grantee is a trustee for the claimant under the later entry, because the prior entry had lapsed and been abandoned. Featherstone v. Mills, 15 N.C. 596. The plaintiff cannot claim under his entries of 1890, because the grants recite the older entries and are issued in pursuance of them. It has been held that even though the claimant, the subsequent enterer, had notice of the lapsed entries when he made his own, it would not revive the lapsed entries. "The law does not forbid a person from entering land previously entered by another." The second entry is made subject to the engagement of the State to make a grant to the first enterer, provided he pays the price before or at the day limited by law. Stanly v. Biddle, 57 N.C. 383.
It being determined that his Honor should have instructed the jury that upon the evidence the plaintiff's entries of 1855 and 1860 had lapsed, and that he could not fall back upon his entry of 27 January, 1890, the question of priority of survey, as to which there was much testimony going to show that plaintiff's survey was made prior to that of defendant, can be of no moment, for as between plaintiff and defendants the prior survey and grant upon lapsed entires [entries] cannot give the plaintiff the advantage, neither would the vagueness of defendant's entry if it were not sufficiently definite to give notice of all the land claimed by defendants, for this was cured by defendant's survey and grant, which covered all the land within the solid lines. Harris v. Ewing, 21 N.C. 369; Johnson v.Shelton, 39 N.C. 85; Monroe v. McCormick, supra.
It was error in his Honor to instruct the jury that if A.P. Munday did not give notice to Kimsey and Slagle that his entry was there and covered the land claimed by defendants, that the defendant's line would be established from I to 4. He ought to have instructed (833) them upon the evidence that defendant was entitled to all the land within the solid lines.
But as it was admitted that the lands represented on the plat by the solid lines A, B, C, D, E, F, G, H, I, J, K and L are covered by the defendant's grant, and that the lands represented by the dotted lines are covered by the grants of the plaintiff, and that the May place and Chestnut *Page 540 Orchard are not in dispute, and as it appeared that the defendants admitted possession of all the lands claimed by plaintiffs and a portion of said lands was not embraced within the solid lines, the plaintiffs were entitled to recover such part from defendants, and defendants were entitled to a conveyance from plaintiffs of all that part of the land embraced within the solid lines which was covered by plaintiff's grants.
ERROR.
Cited: Ritchie v. Fowler, 132 N.C. 790; Frasier v. Gibson, 140 N.C. 278;Berry v. Lumber Co., 141 N.C. 393; Dew v. Pyke, 145 N.C. 305;Barker v. Denton, 150 N.C. 726; Anderson v. Meadows, 159 N.C. 408.