Garrison v. . Williams

74 S.E. 975, 159 N.C. 425, 1912 N.C. LEXIS 293

• Court: Supreme Court of North Carolina
• Decided: May 22, 1912
• Status: Published

Opinion

Per Curiam.

This action was brought by the plaintiff for the purpose of having the defendants declared trustees for the plaintiff of certain tracts of land described in the amended complaint, the plaintiff claiming that in August, 1900, she duly entered the said land in the county of Burke, and that in 1902 the defendant Richard Williams entered the saíne land, and that his rights, if he had any, have passed to his codefendants with notice of the plaintiff’s entries.

At a former trial the case was appealed to this Court and heard upon a demurrer to the complaint. The cause was remanded for a new trial.

There are fifteen assignments of error set out in the record, which in the view we take of the case need not all be considered. The plaintiff tendered two issues which were refused by the court, and, as we think, properly so. The issues submitted covered every phase of the case, and presented every point of contention between the parties.

The claim of the plaintiff is founded upon three grants, which are made the subjects of the 6th, 7th, and 8th issues, as follows:

6. "Were the lands claimed by plaintiff and covered by her grant, No. 16532, vacant and unappropriated lands of the State of North Carolina at the time plaintiff made her entry of the same? Answer: No.

7. Were the lands claimed by plaintiff and covered by her grant, No. 16533, vacant and unappropriated lands of the State of North Carolina at the time plaintiff made her entry of the same? Answer: No.

8. Were the lands claimed by plaintiff and covered by her grant, No. 16534, vacant and unappropriated lands of the State of North Carolina at the time plaintiff made her entry of. the same? Answer: No.

One of the essentials to a valid entry under the statute is that the lands should have been vacant and unappropriated at the time of the entry. As the jury have found that the lands were not vacant at the time of the plaintiff’s entry, but were covered by the Avery & Tate grants, that of necessity terminates the plaintiff’s case, unless there was some error made in the trial of these particular issues.

We find that there is abundant evidence in the. record to sustain the findings of the jury. In instructing the jury as to the manner in which grants and deeds should be located, his Honor followed precisely the rules laid down by Mr. Justice Hoke in Bowen v. Lumber Co., 153 N. C., 368. The charge of the court is clear and' pertinent to these issues, and we find no error in it.

It is not clear to us that the plaintiff was prejudiced by instructions of the court to the jury as to running one of the lines of Grant 6556 to J. 0. Tate with the county line, inas- mucb as tbe jury bave found tbat all of tbe laud covered by tbe plaintiff’s grants bad been previously granted to Tate and Avery.

We tbink it unnecessary to discuss any further assignments of error in tbis case. Tbe law of tbe case was settled and well stated in tbe opinion of Mr. Justice Walker, and seems to bave been followed carefully by bis Honor on tbis trial.

Upon a review of tbe record, we find no substantial error wbicb we tbink would warrant us in ordering another trial.

No error.