Currie v. Gibson

• Decision Date: 30 June 1858
• Citation: 57 N.C. 25,4 Jones 25
• Court: North Carolina Supreme Court
• Parties: JOHN D. CURRIE v. NATHANIEL P. GIBSON.

4 Jones Eq. 25

57 N.C. 25

JOHN D. CURRIE

v.NATHANIEL P. GIBSON.

Supreme Court of North Carolina.

June Term, 1858.

A prior entry, which is vague, acquires no priority as against other enterers. until it is made certain by a survey.

CAUSE transmitted from the Court of Equity of Richmond County.

The bill, in this case, was filed for an injunction, and for a reconveyance of the land in controversy, upon the ground that the defendant had notice of a prior entry of the plaintiff, and that, notwitstanding such notice, he made his entry and had the land surveyed, and obtained a grant before the plaintiff obtained his grant. The plaintiff's entry is in these words: “John D. Currie enters one hundred acres of land in Richmond county, on the south side of Reedy branch, adjoining his own lands and the lands of James McInnis, deceased.” This entry was made 25th of December, 1852; it was surveyed on the 30th of September, 1854, and a grant obtained on the 8th of November, 1854. The defendant made his entry of the same land on the 17th of January, 1853, had it surveyed and obtained a grant on the 5th of March, 1853.

After obtaining his grant, the plaintiff took possession and commenced using the timber, for which defendant brought an action of trespass at law.

The prayer is for an injunction and for a conveyance of the legal title.

The defendant denied that he had notice of the plaintiff's entry of the land; he says that he knew that he had made an entry, but supposed it related to other vacant land adjoining him.

There was replication, commissions were taken out, and proofs taken as to the defendant's knowledge of the land which plaintiff had entered; but as the opinion of the Court supercedes the enquiry, they need not be stated.

Kelly, for the plaintiff .

No counsel appeared for the defendant in this Court.

PEARSON, J.

Where the terms of description in which an entry is made are so vague as not to identify any land, the entry is not void, and the defect may be cured by the survey, so as to make the grant which issues in pursuance thereof, valid as against the State. This liberal construction of the law is put on the ground that it is not material to the State what vacant land is granted. Munroe v. McCormick, 6 Ire. Eq. Rep. 85; Johnson v. Shelton, 4 Ire. Eq. Rep. 85; Harris v. Ewing, 1 Dev. and Bat. Eq. 369.

But such vague entries are not allowed to interfere with the privilege that other citizens have to make entries until the defect is cured...