#### IN RE DREWERY.

(Filed June 17, 1902.)

GRANTS — Entries—Caveators-—Protests—Public Lands — The Code, Sec. 2765.

A person who claims title to- an interest in land covered by an entry made under The Code, Sec. 2765, may file his protest against the issuance oí a warrant of survey thereon.

PetitioN to rebear this case, reported in 129 N. C., 457, is granted.

S. J. Erwin, and J. T. Perkins, for petitioner.

Avery & Erwin, in opposition.

MONTGOMERY, J.

Tbis case, decided at August Term, 1901, and reported in 129 N. C., 467, is before us again on a petition to rebear. Tbe alleged error of law complained of by tbe petitioner is that tbe Court construed that part of Section 2765 of Tbe Code relating to caveats in tbe matter of land entries to be a mere reference to tbe old statutes of 1777 and 1779, now passed into disuse, instead of being a substantial law connected with tbe subject of land grants by tbe State, and intended for present application. After a careful revision of the whole matter, we are convinced that there was error in our former decision.

Upon a review of the statutes of 1777 and 1779, we have found that they referred, first, to such persons as bad entered or settled .on vacant lands of tbe State with tbe intention of becoming proprietors thereof; second, to' those persons who bad been prevented from obtaining warrants of survey by which their entries might be identified by metes and bounds, or grants for tbe land so> settled upon or entered, on account of tbe discontinuance of tbe land offices of tbe State during tbe Revolution; and third, that it was for tbe settlement only of *343such disputes as had originated in consequence of the discontinuance of the land offices. Those statutes, in clear terms, were confined to those who had not obtained a legal title to the lands. In addition to that,' those statutes were not brought forward in the Revised Code in the chapter (42) on Entries and Grants, and were therefore repealed. Rev. Code, Chap. 121, Sec. 2.

But that part of Section 1165 of The Code to which we have referred, was introduced in The Code at the time of the adoption of The Code, and its provisions, so far as they refer •to those who may become caveators, are for the benefit of persons who own the title to the land, or any interest in the same infringed upon by subsequent entries. The language of the new law is very clear, and the purposes for which the same were enacted are equally as clear. It offers a preliminary and safe reinedy to landowners who are holding their lands under legal or equitable titles against subsequent entries that might be fraudulent or mistaken. For, in such last-mentioned cases, irreparable damage might be done to the landowner’s estate, without the protection of the statute, before an injunction could be procured in a civil action to prevent trespass.

It might be well to mention, as an'aid to this construction which we put upon the statute (Code, Sec. 2769), that the same was repealed by Chapter 132 of the Acts of 1885, but that the repealing act itself was repealed by Chapter 70 of the Acts of 1889, and the section is in full force to-day, except as to Lincoln and Macon counties.

As there was error in the former decision of the case, it is remanded to the Superior Court of Burke County to be proceeded with according to law.

Petition Allowed. Case Remanded.