Babb v. Gay Manufacturing Co.

Supreme Court of North Carolina

Babb v. Gay Manufacturing Co.

63 S.E. 609, 150 N.C. 139, 1909 N.C. LEXIS 8

DecidedFebruary 17, 1909

StatusPublished

This text of 63 S.E. 609 (Babb v. Gay Manufacturing Co.) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Babb v. Gay Manufacturing Co., 63 S.E. 609, 150 N.C. 139, 1909 N.C. LEXIS 8 (N.C. 1909).

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Opinion

*140 Brown, J.

It is unnecessary to determine the validity of the entry made by plaintiff upon the lands in controversy. It is quite indefinite and uncertain, and may possibly be void for that reason. Fisher v. Owens, 144 N. C., 649; Call v. Robinett, 147 N. C., 615. But we sustain the judgment of the Superior Court upon the ground tbat plaintiff enterer bas failed to sbow tbat the lands entered are vacant and unappropriated. Walker v. Carpenter, 144 N. C., 674.

For the purpose of showing tbat the lands be bas entered are unappropriated the plaintiff introduced a grant to James P. Winslow, dated 29 December, 1891, and a deed from W. H. Lamb and J. H. Lane to defendant, dated 3 December, 1895, botb containing the following description: “Being the Tbomas E. Wins-low entry, beginning at Rufus White’s corner and running'S. 70 E. 161 chains to Stallings’ corner; thence N. 20 E. 27 chains to Hollowell’s corner; thence N. 59 W. 152 chains to David White’s corner; thence S. 32% W. 52 chains to the first station; containing 650 acres, more or less.” Tbe plaintiff contends tbat the grant and deed are void, for the reason tbat the land attempted to be described therein cannot be located. Tbe defendant introduced a deed from J. P. Winslow to-Lamb and Lane for the same land.

It is not necessary tbat the defendant, the claimant, should sbow an assignment of the Tbomas E. Winslow entry, or to show tbat the words “Tbomas E. Winslow,” recited in the grant, were intended for James P. Winslow.

When plaintiff put in evidence a valid grant from the State, issued in 1891, long prior to bis entry, be showed that the lands bad been previously granted and were not vacant and unappropriated.

We see no reason why the grant cannot be located by parol evidence. It is certainly not void on its face. Tbe Rufus White corner called for in the grant may be located by reference to the Stallings corner and the course and distance between the two, and it is competent to introduce parol evidence to locate those comers. Shepherd v. Simpson, 12 N. C., 237; Perry v. Scott, 109 N. C., 374.

The judgment of the Superior Court is

Affirmed.

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*140 Brown, J.

It is unnecessary to determine the validity of the entry made by plaintiff upon the lands in controversy. It is quite indefinite and uncertain, and may possibly be void for that reason. Fisher v. Owens, 144 N. C., 649; Call v. Robinett, 147 N. C., 615. But we sustain the judgment of the Superior Court upon the ground tbat plaintiff enterer bas failed to sbow tbat the lands entered are vacant and unappropriated. Walker v. Carpenter, 144 N. C., 674.

For the purpose of showing tbat the lands be bas entered are unappropriated the plaintiff introduced a grant to James P. Winslow, dated 29 December, 1891, and a deed from W. H. Lamb and J. H. Lane to defendant, dated 3 December, 1895, botb containing the following description: “Being the Tbomas E. Wins-low entry, beginning at Rufus White’s corner and running'S. 70 E. 161 chains to Stallings’ corner; thence N. 20 E. 27 chains to Hollowell’s corner; thence N. 59 W. 152 chains to David White’s corner; thence S. 32% W. 52 chains to the first station; containing 650 acres, more or less.” Tbe plaintiff contends tbat the grant and deed are void, for the reason tbat the land attempted to be described therein cannot be located. Tbe defendant introduced a deed from J. P. Winslow to-Lamb and Lane for the same land.

It is not necessary tbat the defendant, the claimant, should sbow an assignment of the Tbomas E. Winslow entry, or to show tbat the words “Tbomas E. Winslow,” recited in the grant, were intended for James P. Winslow.

When plaintiff put in evidence a valid grant from the State, issued in 1891, long prior to bis entry, be showed that the lands bad been previously granted and were not vacant and unappropriated.

We see no reason why the grant cannot be located by parol evidence. It is certainly not void on its face. Tbe Rufus White corner called for in the grant may be located by reference to the Stallings corner and the course and distance between the two, and it is competent to introduce parol evidence to locate those comers. Shepherd v. Simpson, 12 N. C., 237; Perry v. Scott, 109 N. C., 374.

The judgment of the Superior Court is

Affirmed.

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63 S.E. 609, 150 N.C. 139, 1909 N.C. LEXIS 8, Counsel Stack Legal Research, https://law.counselstack.com/opinion/babb-v-gay-manufacturing-co-nc-1909.

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