Frazier v. Gibson
| Decision Date | 12 December 1905 |
| Parties | FRAZIER v. GIBSON et al. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Swain County; Ferguson, Judge.
Action by W. W. Frazier against Franklin Gibson and others to have defendants declared to hold the legal title to certain land in trust. From a judgment for defendants, plaintiff appeals. Affirmed.
Fry & Rowe, for appellant.
Bryson & Black, for appellees.
This action was disposed of by his honor below upon a demurrer ore tenus to the complaint, which disclosed the following facts On December 11, 1879, defendant J. D. S. McMahan entered in the office of the entry taker of Swain county 640 acres of land on the waters of Ocona Lufty river in said county; said entry being No. 826. He filed his bonds for the purchase money on the 20th day of February, 1880, and paid same on the 1st day of December, 1884, obtaining grant numbered 7,294 on August 17, 1885. On March 15, 1880, one S. Everett, without notice of the McMahan entry, entered in the entry taker's office of said county eight tracts of 640 acres each, and filed his bonds for same, as required by law. A portion of such entries cover the entry made by McMahan as aforesaid. Said Everett assigned said entries to one D. Lester, who paid the purchase money on June 27, 1883, and took grants for said lands on November 4, 1891; a portion of said grants covering the aforesaid McMahan entry and grant. The defendants, Gibson and others, claim the land entered by McMahan by virtue of conveyances therefor. The plaintiff is the owner of such right and title as Lester obtained under the grant issued to him, No. 7,294. Defendant Frank Gibson is in the possession of said land. That said land is located in that portion of the state to which the statute in regard to the Cherokee lands applies. Plaintiff demanded judgment that the defendants be declared to hold the legal title to said land in trust, and that they be decreed to convey the same to him. Defendants, among other defenses, pleaded the statute of limitations. When the cause came on for trial, defendants relied upon the statute of limitations as a bar to the plaintiff's action and further demurred ore tenus to the complaint for that it failed to state facts sufficient to constitute a cause of action, and that he was not entitled to the relief prayed for. The court sustained the demurrer, and dismissed the action, from which plaintiff appealed.
The defendants claim title under a senior grant, issued upon a senior entry, by which they have a perfect title from the state, unless, for the reason assigned by plaintiff, the entry made by McMahan had lapsed at the date of the grant issued thereon. He contends that by McMahan's failure to file the bonds at the time of making the entry, and paying them within four years thereafter, the entry, with such rights as accrued therefrom, was forfeited. It will be noted that the entry was made on December 11, 1879, the bonds filed February 20, 1880, and paid December 1, 1884. If, as contended by the plaintiff, the bonds should have been filed within four years from that date, then more than that period elapsed before their payment. If, as contended by defendants the enterer had three months within which to file them, the same result in respect to time follows, it is therefore immaterial which view we take of that question. The question is therefore fairly presented whether the failure to make full payment within four years from either date works a forfeiture of the entry, so that the legal title which vested by the grant is impressed with a trust for the benefit of the Everett entry. This contention is the basis of the plaintiff's action. When we refer to chapter 17 of the Code, relating to ""Entries and Grants" it is clear that by the express terms of section 2766, which was in force at the date of both entries (Rev. Code, c. 42), the failure to pay the purchase money within the time prescribed after entry, works an absolute forfeiture of the entry or, in the language of the statute, "all entries of land not thus paid for shall become null and void, and may be entered by any other person." The lands in controversy are a portion of the ""Cherokee Lands" and in respect to the manner of entry, terms of payment, etc., are governed by the provisions of chapter 11 of the Code. The plaintiff contends that the same rule prevails in regard to the failure to pay the purchase money when due, as in case of other public lands. If he is correct in this, and the McMahan entry of December 11, 1879, lapsed by reason of the failure to pay the bonds when due, then upon the authority of the uniform decisions of this court the entry of Everett of March 15, 1880, followed by the payment of the bonds on June 27, 1883, entitles the plaintiff, succeeding to his rights, to have the defendants claiming thereunder declared trustees for his benefit, and decreed to convey to him the legal title. Gilchrist v. Middleton, 107 N.C. 663, 12 S.E. 85, in which the authorities are cited.
The defendants, however, contend that no language can be found in chapter 11 of the Code, declaring a forfeiture of an entry by reason of the failure of the enterer to pay the purchase money within the prescribed period. This contention invites us to an examination of the statutes compiled in and constituting chapter 11 of the Code, entitled "Cherokee Lands." Without entering into a discussion of this interesting subject by referring in detail to the several statutes enacted by our General Assembly beginning with the act of 1783, it is sufficient with some slight exceptions, to the decision of this appeal to note that at the session of 1852 an act was passed, being chapter 119 (Code, § 2464 et seq.), providing for the entry and purchase of such portions of the Cherokee lands as had not been sold pursuant to preceding statutes. After providing for the appointment of an entry taker and a scale of prices regulated by the date of the entry, it was provided: "It shall be lawful for all persons entering 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 of the tract or tracts so entered, and, upon proof of such payment as herein provided, the Secretary of State shall issue a grant or grants according to the entry and survey thereon, etc." Section 2466. By the same statute (Code, § 2468) it is provided that all money received from the sale of vacant lands in the counties of Cherokee, Macon, and Haywood shall be paid to contractors for making the Western Turnpike Road, etc. The remaining sections of this act provide for the construction, etc., of this turnpike. At the same session, by chapter 120, § 2 (Code, § 2476), it is made the duty of the agent appointed for the...
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