Plemmons v. Fore

• Decision Date: 31 December 1842
• Citation: 2 Ired.Eq. 312,37 N.C. 312
• Court: North Carolina Supreme Court
• Parties: PETER PLEMMONS v. LEWIS FORE & others.

2 Ired.Eq. 312

37 N.C. 312

PETER PLEMMONS

v.LEWIS FORE & others.

Supreme Court of North Carolina.

December Term, 1842.

An entry of land 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 person, who obtained a prior grant under a junior entry, with knowledge of the first entry.

It is not necessary that the first enterer should have paid the money to the State at the time of the second entry; provided it be paid within the period limited by law.

The cases of Featherston v Mills, 4 Dev. 596, and Harris v Ewing, 1 Dev. & Bat. Eq. 369, cited and approved.

This cause was transmitted, by consent of parties, from Buncombe Court of Equity, at Spring Term, 1842, to the Supreme Court. The matters contained in the pleadings and proofs are set forth in the opinion delivered in this court.

Clingman for the plaintiff .

Francis for the defendants .

RUFFIN, C J.

On the 29th of April, 1836, the plaintiff made an entry of “twenty-five acres of vacant land, lying in Buncombe county, on the west side of French Broad River, adjoining his own land and the lands of John Plemmons, William Carroll, Abner Guthrie and William Frisbie;” and, having paid the purchase money, he obtained a patent for the land on the 30th of September, 1837.

On the 11th of October, 1836, the defendant Gates made an entry of the same land in the following words: “twenty-two and an half acres of land, lying in Buncombe county, on the west side of French Broad River, adjoining the lands of John Plemmons, Peter Plemmons and Lewis Fore;” and thereon a patent was issued to him on the 24th of August, 1837, and he subsequently conveyed to the other defendant, Fore.

The bill was filed in 1840, and states, that the land was situate between a tract which the plaintiff owned, and one which William Carroll had owned, and was then occupied by the defendant Fore, under a purchase from Carroll; and that, after the plaintiff had made his entry and its becoming known to Fore, they deemed it doubtful, whether there was any vacant land between their tracts, as Fore claimed up to the line of the plaintiff's land, before granted; that, for the purpose of settling the point, Fore employed a surveyor to run the line of their respective tracts; and that on the 10th of October, 1836, the survey was, in the presence of Fore and Gates, so far proceeded in, as to satisfy the surveyor and all the parties, that the land, as entered by the plaintiff, was vacant; but that, before the survey was entirely completed, the defendant Fore procured the other defendant Gates to make an entry of the same land in his, Gates's, own name, but in trust and for the benefit of Fore; and that accordingly he did so, as above stated, on the next day, the 11th of October, 1836. The bill charges that both of the defendants had a knowledge of the plaintiff's entry of April preceding, and that Fore caused his entry to be made in the name of Gates, only to render it more difficult for the plaintiff to prove his case; and that, in fact, Fore merely paid the fees and purchase money to the State and then took a conveyance from Gates, without giving him any thing therefor. The prayer is for a conveyance to the plaintiff.

Both of the defendants put in answers, in...