Wallace v. Barlow

• Decision Date: 20 May 1914
• Docket Number: (No. 564.)
• Citation: 165 N.c. 676,81 S.E. 924
• Court: North Carolina Supreme Court
• Parties: WALLACE. v. BARLOW.

(165 N.c. 676)

81 S.E. 924

WALLACE.

v.BARLOW.

(No. 564.)

Supreme Court of North Carolina.

May 20, 1914.

1. Public Lands (§ 164*)—North Carolina —Sufficiency of Entry as Notice.

An entry of 10O acres of state lands in a certain township, "on the waters of W.'s creek adjoining the lands of B. and others, beginningon a stake in B.'s line" on a certain mountain "and running various courses for complements, " was too vague to give notice to a subsequent enterer, who received his grant first, so as to make him a trustee for the first enterer.

[Ed. Note.—For other cases, see Public Lands, Cent. Dig. §§ 466-^76; Dec. Dig. § 164.*]

2. Appeal and Error (§ 692*)—Quieting Title (§ 44*)—Proceedings—Evidence.

An exception to the exclusion of questions asked a witness, in an action to remove a cloud on title, was without merit, where there was nothing in the record on appeal to indicate what answers would have been given, and the evidence related to an entry on state lands which was not in controversy.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 2905-2909; Dec. Dig. § 692;* Quieting Title, Cent. Dig. §8 89-92; Dec. Dig. § 44.*]

Appeal from Superior Court, Wilkes County; Cline, Judge.

Action by E. Wallace against Robert Barlow. From a judgment for defendant, plaintiff appeals. No error.

This is an action to remove a cloud from title and to declare a trust in certain land. The plaintiff claims title from the state under grant No. 16, 401, for 50 acres. Grant issued on the 14th day of January, 1905, based upon an entry filed in the office of theentry taker of Wilkes county, on the 1st day of January, 1902, by plaintiff; survey made thereunder on December 12, 1904, and application for grant filed in the office of the Secretary of State, and purchase money therefor, paid on December 31, 1904; warrant of survey issued April 18, 1903. The entry of the plaintiff is as follows: "E. Wallace enters 100 acres of land in said county, in Boomer township on the waters of White's creek adjoining the lands of Robert Barlow and others, beginning on a stake in Robert Barlow's line on Berry's Mountain, and running various courses for complements 'E. Wallace.' " The defendant claims title from the state under grant No. 15, 814, issued on the 28th day of March, 1903, based upon an entry filed in the office of the entry taker for Wilkes county, on the 26th day of March, 1902, and warrant issued April 7, 1902. It was admitted at the trial of the cause that the land in controversy was covered by both grants. Plaintiff relies upon "priority of entry, and notice, both actual and constructive, " to defendant of plaintiff's prior entry. The defendant contends that the entry of the plaintiff is too vague and indefinite to affect him with notice. His honor held that the entry of the plaintiff was not sufficient to give notice, and the plaintiff excepted.

Hugh A. Cranor and Frank D. Hackett, both of North Wilkesboro, for appellant.

W.W. Barber, of Wilkesboro, for appellee.

ALLEN, J. It is not necessary to decide whether any evidence of notice, outside of a survey, is admissible to aid a vague and indefinite entry, as his honor heard the evidence tending to prove notice, and the jury has found, under proper instructions, there was no notice.

The entry of the plaintiff is in all material respects like the one considered in Call v. Roblnett, 147 N. C. 616, 61 S. E. 578, which was held too vague to affect a senior grantee with notice, and that case is decisive of this.

In the present case the entry is, "E. Wallace enters 100 acres of land in said county in Boomer township on the waters of White's creek adjoining the lands of Bobert Barlow' and others, beginning on a stake in Robert Barlow's line on Berry's Mountain and running various courses for complements, " and in the Call-Robinett Case, "640 acres of...