The defendant, John Sumner, made an entry of vacant land in the office of the entry-taker of Buncombe county, on the tenth day of November, 1851, which describes the land as follows: "One hundred acres of land, on the west side of French Broad River, joining his own lands, and the lands of James Case," which was intended to cover certain land adjoining his own and James Case. Afterwards, to wit, on 2nd *Page 122 of November, 1852, William B. Lance entered the land in controversy, and described it in his entry as "fifty acres of land, on the west side of French Broad River, on the waters of Asten's branch, joining the lands of Jackson Shipman, John Sumner and Polly Steward," and obtained a grant from the State for the same, dated 15th day of August, 1854, which, while it was yet an entry, was sold to the plaintiff by Lance, for a valuable consideration.
After Lance made his entry, Sumner proceeded to survey the land according to his entry, and on doing do, he found that the land, which he intended to enter, and which was a piece adjoining his own land and that of James Case, was already embraced in a grant which he had taken out. Thereupon, he had the land, which is the subject of this controversy, surveyed, and obtained a grant for the same as above stated. This land does adjoin his (Sumner's) own land, but does not adjoin that of James Case, being separated therefrom by another tract of land, owned by a third person. At the time Sumner shifted his location to the land entered by Lance, he had notice that the latter location covered the land entered by Lance.
The prayer of the bill is to convert the defendant into a trustee for the plaintiff's use and benefit, and to compel him to convey the land, thus held by an elder grant, to himself as the assignee of Lance.
The answer admits that the defendant failed on the first survey to find the land which he then surveyed, under his entry, vacant, as it turned out to be within the boundaries of a tract which had been formerly granted to him. He further admits, that he transferred his location to the land that had been entered by Lance, and that this does not adjoin the lands of James Case. He admits the conveyance of Lance's right to the plaintiff for a valuable consideration.
The cause was set down for hearing on the bill, answer, exhibits and proofs, and sent to this Court by consent. It is the policy of the public to have all the vacant land appropriated by individuals. So far as the State is concerned, it is a matter of indifference who appropriates the land, provided it be paid for. Upon this ground it is settled, that where an entry is made in terms of general description, it may be made certain, and the particular land identified by a survey, if it be done before the right of another enterer has attached;Johnston v. Shelton, 4 Ire. Eq. 85; Monroe v. McCormick, 6 Ire. Eq. 85;Fulton v. Williams, Busb. Eq. 162, and Currie v. Gibson, ante 25. In this case, according to the proofs, the defendant "shifted" his entry, so that the land, which was surveyed, and for which he obtained a grant, does not answer the general description used in making the entry; for although it adjoins his own land, it does not adjoin the land of James Case. This, it would seem, goes beyond the principle established by the above cases.
But waiving that objection, at the time he made his survey, the land in question was entered by Lance, under whom the plaintiff claims, so as to give him a prior right, and take from the defendant the right to shift his entry for the purpose of including it. The restriction upon the right to make a vague, or general entry certain by a survey, that it shall not interfere with the rights of a prior enterer, is recognised in all the cases, and the good sense and justice upon which it is made, will strike every one as soon as it is suggested. Add to this, the fact, that at the time the defendant shifted his entry, and had his survey made, he had notice that he thereby covered land which had been before entered by Lance, and it is manifest that it is against conscience for him to do so. It follows, that in regard to the legal title, afterwards acquired by him, he must be held a trustee for the plaintiff, who, it is admitted by the answer, has succeeded to all the rights of Lance for valuable consideration. This admission, in the answer, also meets the objection that Lance was a necessary party, for it thereby appears that he has no interest in the subject of controversy.
PER CURIAM, Decree accordingly. *Page 124