The defendant in his answer admitted that after the entry made by him, which he averred was in December, 1810, and before a grant issued thereon, he heard that the plaintiff had made an entry of the same land. He stated that he could not answer with absolute certainty whether the land was situated in Burke or Iredell, as the line between the two counties had never been properly settled; but averred that according to his honest belief it was in the county of Iredell — his entry called for the dividing line between the two counties. The entries and grants were filed, and from them it appeared that the defendant was correct in his account of their respective dates.
A replication to the answer was filed, and many depositions respecting the line between the two counties were taken. A summary of them will be found in the opinion of the Court. The bill is filed to obtain a conveyance of a tract of land which the defendant entered in Iredell County, for which, in December, 1812, he obtained a grant, describing it as lying in Iredell. The plaintiff alleges that the land is in fact situate in Burke County, and that before the entry of the defendant, and within his knowledge, he had himself entered it in Burke, and obtained a grant in November, 1813.
Upon that notice, and upon the distinct ground that the defendant's entry and grant are void, because the land lies in Burke, the equity of the bill is raised.
The answer and the defendant's grant show that one of his (485) entries was prior to that of the plaintiff. But it is unnecessary to discuss the particular circumstances on that point, since the opinion of the Court is determined by other considerations.
The first observation which occurs is that if the principle assumed in the bill, that the validity of the entry and grant depends upon the land being in the county mentioned in it, be correct, notice is immaterial; for the defendant's defective title would not be helped by ignorance of the previous valid entry of the plaintiff. On the other hand, if the land lie in Iredell, and the plaintiff's entry of it in Burke be, for that reason, void, knowledge of it would not affect the defendant. If he knew of it, he knew also that it was void; for if the entry created no obligation on the State to perfect the plaintiff's title by a grant, it could not oblige the defendant, in conscience, to convey to the plaintiff the legal title, which *Page 290 the State had conferred on him. The two titles coming through different sets of officers, of whom only one had authority to perform the acts necessary to precede the issuing of the grant, they are as distinct and independent, in reference to this question, as if they had been derived from different persons. The doctrine of notice is therefore inapplicable; and the cause stands upon the intrinsic strength of the respective titles of the parties.
Taking the fact for granted that the land lies in Burke, it may, however, be inquired what equity the plaintiff has, or how he gives this Court jurisdiction. If it be true that a grant for land lying in one county, which describes it as lying in another, be void, the plain, direct, and complete remedy of the plaintiff would seem to be at law. Both the matter of fact — the location of the land — and the operation of the grant are properly triable there. The plaintiff does not stand upon the equitable title of his entry only. He is armed with a grant, appearing (486) to be a legal title, upon which he must recover in an ejectment in Burke, notwithstanding the defendant's grant in Iredell, if the latter be void. If, indeed, it was not void, or even if a court of law had held upon an ejectment that, being the first patent, it passed the legal title, notwithstanding the falsehood on its face, it would be a different matter. This Court would then inquire into the preferable equity arising out of the respective entries. But the plaintiff has not established his own title at law, so far as it depends upon the actual location of the land, nor obtained the opinion of a court of law upon the legal operation of the defendant's grant. He comes here for a decision of both these points, though the latter is purely a legal question. His bill is, in truth, simply an ejectment bill, against the tenant in possession, to try the strength of two legal titles; of which he pronounces his adversary's void. Such a bill cannot be entertained.
If, however, the Court could perceive that the defendant's legal title was not void, and would at law defeat the plaintiff's, his equity would certainly be sustained here, notwithstanding the judgment pronounced by himself upon the defendant's grant. It is not absolutely necessary to the decision of the present case that the legal validity of a grant describing the land to be in a wrong county should be determined. No conclusive opinion will therefore be given on it. My own impression is that such a grant is void. I will not say that would be the case with deeds between individuals; for the county is only a part of the description, and might probably be corrected by the more specific description by natural or other boundaries. Nor do I think a description in a grant must in all respects be consistent. Ordinarily, ambiguities arising upon evidence may be explained in the same manner, and many rules have been laid down for their construction, having respect to the objects called for, and *Page 291 among them the most conspicuous, permanent, and least deceptive. (487) But the county in which the land lies seems, under our statutes, to be of the essence of the description in a patent. The State has a right to know what land she grants, and where situate, and that she grants it upon the representations, under oath, of her proper and responsible officers. It is true that in general a court of law cannot, in a collateral proceeding, look behind the grant into any irregularity in obtaining it. Its validity must be put directly in issue. But this objection arises on the face of the instrument, and relates to the thing conveyed, in terms, by it. The grant follows, in the description, the plat and survey, of which duplicates are required to be filed in the Secretary's office, and one appended to the grant, as a part of it. This survey can be lawfully made only by the surveyor of the county in which the land lies, to whom the entry-taker of that county issues a warrant. By the act of 1777 (Rev., ch. 114) an entry-taker is appointed for each county, with whom "any person may enter a claim for land lying in such county." The entry is to be made "in writing, setting forth" (among other things) "the name of the county in which the land is situate." With that entry-taker caveats are to be lodged, and upon his certificate they are to be tried on the premises by a jury of the same county. It cannot be held, I think, that a grant purporting to convey lands thus entered and surveyed according to law, by those appearing to be the proper officers, should convey the land entered with and surveyed by officers who had no authority touching the matter. It is of the substance of a patent that the land should appear to be situate in some county; and a reference to those provisions of the statute proves that the true county ought to be stated. If a grant for land in one county would pass land in another, then the entry upon which that grant is founded must likewise be held to be good. This would lead to a vagueness, uncertainty, and contradiction in the terms of an entry which (488) would defeat the whole purpose of requiring any description in the entry, and would entangle titles beyond the ability of man to unravel. The county thus forming a material and essential part of the description in the entry, expressly required by the statute, it must be of the like important consequence in the grant, which is founded on and follows the entry in that respect. It cannot, in general, therefore, be departed from. And if the land, as described by metes and bounds, cannot be found in the county mentioned, the grant must be inefficacious to pass it, by reason of the insufficient and incongruous description. I have laid this down as the general rule. I do not suppose it a universal one. I can readily suppose an exception to it. Perhaps there may be others. If, for instance, an entry were properly made, and a warrant issued, and before its execution and the return of the survey the name of the county *Page 292 were changed, or the county divided, and then the survey were returned, and followed the entry and warrant, the grant might not be avoided, although the land, at the time of issuing the grant, did not lie in the county therein named. But in that case the land would form a part of the same identical territory, under whatever name it might be known. In the case before us that is impossible; for the same spot cannot be at once in two counties. But, without deciding this point, it is a sufficient objection to the present bill that the plaintiff has made no attempt to have the judgment of a court of law upon this legal question. Until he shall have failed there, he has no occasion nor excuse for coming here.
If, however, a court of law had so decided as to make it necessary for the plaintiff to abandon his legal title, and, relying upon his entry alone, to ask the aid of this Court, it would then have to be considered (489) how his equity stands on that. If the entry be void, it gives him no equity. The same provisions of the act of Assembly and the same reasoning which have been supposed to render inoperative the grant, apply with equal and greater force to show the entry to be void. In one respect the entry stands on less advantageous ground than the grant. The latter is, in each case, issued by the same officers — the Governor and Secretary of State. Its defect consists in a description which is materially false, and cannot be corrected. But the entry is defective, not barely in describing the land as lying in the wrong county, but also in being made with an officer who had no authority to receive it, and surveyed by another equally unauthorized. As the entries of the plaintiff and defendant are made in different counties, and their calls are for the same county line, on opposite sides of it, unless the utmost latitude and vagueness of description be allowed, it seems to be impossible that they can ever come in conflict. But if in fact the same land has been surveyed under them, the one or the other must be void. Which of them it is depends upon the question, In which county is the land? That fact is directly put in issue by the answer, in which the defendant states that he did "honestly believe" at the time he entered, and at the time of answering (in 1820), that the land was situate in Iredell, and not in Burke. The burden is thrown on the plaintiff of showing the contrary, and he has had full time to do it. Commonly the limits of a county, being of general interest, are specifically fixed by law, designated in surveys made under public authority, and notorious. Such public documents, or even a reputation, general and undisputed, and acted on by the authorities on both sides of the line, would be prima facie competent to establish the line in a private controversy of the present nature. But the answer states that the line was never "properly settled"; (490) and in this particular all the witnesses, on both sides, agree with *Page 293 it. The Court will not say that its situation might not be proved by witnesses, upon their knowledge acquired by surveys not made under public authority nor in the cause. Certainly, a survey of one or the other of the latter kind would be most satisfactory. But no survey of any kind appears in the proofs before us. The parties have relied on the opinions of their witnesses; and they are given without any sufficient grounds on which to found them. One witness barely states that he believes the land to be in Burke. Another states that from a survey he made, he thinks about 120 acres lie in Burke. But we are not told what survey he made, whether of the land or of the county line; if the latter, where he began or went to, nor his reasons for adopting either terminus. Such evidence is not sufficient proof of an ordinary line between individuals — much less a public and disputed boundary. But its feeble strength is further impaired by the contrary opinions of the defendant's witnesses. Five or six of those declare that before the defendant made his entry, "a rough measurement" was made to ascertain the line. They all thought the line was in Iredell; and the defendant then entered. The fact in dispute — the boundary between the two counties — is susceptible of clear proof, and ought not to be established upon less proof. But the plaintiff has not rendered his allegation of it even probable. The Court is therefore obliged to declare that the land covered by the defendant's grant does lie, according to the terms of the grant, in Iredell County.
Counsel for the plaintiff has asked for an inquiry upon this point. A reference is ordered to ascertain the mode and extent of the relief which the particular circumstances may require, after a decree, upon the hearing, establishing the right to some relief. Where a mortgage or a partnership is declared, accounts are ordered. Where an agreement for a sale under a general description is established, the estate (491) may be further identified by a survey. But a fact constituting the gist of the controversy, and directly put in issue by the pleading, must be proved before publication. It enters into the plaintiff's title, and must be established on the hearing; else there is no case upon which to institute an inquiry. It is never referred to the master whether a party can supply a deficiency of evidence to make a case. If it were, inquiries would be interminable and the final decree indefinitely postponed. Inquiries relate to matters supplementary to the general relief decreed on the hearing. If the plaintiff had proved that some of the land certainly lay in Burke, but it did not appear what part in particular, and it was deemed necessary to the clearness and precision of the decree that such part should be designated by the particular metes, bounds, and quantity, a survey would be ordered to establish those facts. But here, no part of the land is shown to be so situated. The plaintiff *Page 294 has therefore failed to prove the case stated in his bill; and the Court cannot supply the deficiency, but must dismiss the bill.
PER CURIAM. Declare that the land granted to the defendant is not proved to lie in Burke County, and is therefore held and deemed to lie in Iredell County. Declare further, that if the land did lie in Burke County, the plaintiff would be without any matter of equity upon which to ask the aid of this Court, since he hath obtained a grant from the State for the land claimed by him, and may, for anything appearing to the contrary, have a direct, speedy, and complete remedy at law; and therefore decree that the bill be dismissed, with costs.
Cited: Douglass v. Caldwell, 64 N.C. 373; Harris v. Norman, 96 N.C. 63.
(492)