{ "id": 8683846, "name": "DANIEL McDIARMID AND OTHERS against JOSEPH McMILLAN", "name_abbreviation": "McDiarmid v. McMillan", "decision_date": "1859-12", "docket_number": "", "first_page": "29", "last_page": "32", "citations": [ { "type": "nominative", "cite": "5 Jones Eq. 29" }, { "type": "official", "cite": "58 N.C. 29" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "1 Jones' Eq. 272", "category": "reporters:state", "reporter": "Jones Eq.", "opinion_index": 0 }, { "cite": "4 Ired. Eq. 85", "category": "reporters:state", "reporter": "Ired. Eq.", "case_ids": [ 2100126 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nc/39/0085-01" ] }, { "cite": "6 Ired. Eq. 85", "category": "reporters:state", "reporter": "Ired. Eq.", "case_ids": [ 2102625 ], "opinion_index": 0, "case_paths": [ "/nc/41/0085-01" ] } ], "analysis": { "cardinality": 364, "char_count": 5806, "ocr_confidence": 0.427, "pagerank": { "raw": 5.298132930532853e-08, "percentile": 0.3343030809904361 }, "sha256": "037a83fc113e936d5d238fcbfd3ef9db90d16ee6341b2cb8c4886b48bc621cba", "simhash": "1:aa30f62472470947", "word_count": 1035 }, "last_updated": "2023-07-14T17:00:36.855594+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "DANIEL McDIARMID AND OTHERS against JOSEPH McMILLAN." ], "opinions": [ { "text": "PeaesoN, C. J.\nThe plaintiffs are not entitled to relief, because their entries are too vague to amount to notice, or give them any priority; Monroe v. McCormick, 6 Ired. Eq. 85, is decisive. In that case, which is founded upon Harris v. Ewing, 1 Dev. and Bat. Eq. 369; Johnston v. Shelton, 4 Ired. Eq. 85, it is held \u201cwhere one makes an entry so vague as not to identify the land, such entry does not amount to notice, and does not give any priority of right, as against another individual who makes an entry, has it surveyed, and takes out a grant. By a liberal construction of the law, such entries are not void as against the State. It is not material to the State what vacant land is granted; but such entries are not allowed to interfere with the rights of other citizens, and are not susceptible of being notice to any one, because they have no identity. It would be taking advantage of his own wrong, for one to make a vague entry, and afterwards, take from another, land which he had, in the mean time, entered and paid for.\u201d \u201cWhere an entry is vague, it acquires no priority until it is made certain by a survey. The good sense of this principle'will strike every one as soon as it is suggested.\u201d\nThe first entry of the plaintiffs, on which the other seven turn as a point, is in these words, \u201c Daniel McDiarmid and Daniel Turner, enter 640 acres of land, in Richmond county, on the south side of Big Muddy creek, beginning at or near the ford of the creek, where the Rockingham road crosses.\u201d Admit that this reference to \u201cthe ford,\u201d on the creek, fixes a point to begin at, with sufficient certainty, what course is then to be taken ? up or down the creek ? if off from it, at what angle? what shape is the land to lie in? a square? a parallelogram? or some irregular figure? No adjacent tracts are called for, and nothing whatever whereby it can be made certain. If this conclusion required authority, it is furnished by the case of Johnston v. Shelton, supra. There the description was \u201c 640 acres of land beginning on the line dividing the counties of Haywood and Macon, at a point at, or near, Lowe\u2019s Bear-pen, on the Hog-back Mountain, and running various courses for compliment,\u201d and the Court admitting that the reference to Lowe\u2019s Bear-pen, on the Hog-back mountain, in the dividing line of the two counties, fixed a point to begin, with sufficient certainty, held the entry to be too vague, \u201cfor it. cannot be told whether the land is to be laid off'by running east or west on the county line, nor how far in either direction, neither by course or distance, or natural objects, or other lines, or any other thing.\u201d\nHorton v. Cook, 1 Jones\u2019 Eq. 272, was cited for the plaintiff's. That case, however, is distinguished from the cases cited above, in the opinion of the Court, on the ground, that the beginning corner was fixed at a certain tree, in a certain line of another tract, and \u201cit mentions the head waters of the creek on which, and the tracts of land, belonging to other persons, between which it is located.\u201d '\nWithout reference to the other questions, raised by the pleadings, we are of opinion that the bill must be dismissed, because of the vagueness and uncertainty of the plaintffs\u2019 entries.\nPeR Cueiam, Bill dismissed.", "type": "majority", "author": "PeaesoN, C. J." } ], "attorneys": [ "McKay and Kelly, for the plaintiff's.", "Ashe, for the defendant." ], "corrections": "", "head_matter": "DANIEL McDIARMID AND OTHERS against JOSEPH McMILLAN.\nAn entry of a tract of land, as being \u201cin Richmond county, on the south side of Muddy creek, beginning at or near the ford of the creek, where the Rockingham road crosses,\u201d without any further indications of its locality, was Held to be too vague and uncertain, to give it priority as to an individual claiming under another entry and grant.\nCause removed from the Court of Equity of-Richmond county.\nIn the year 1850, the defendant made an entry of a tract of land, (a part of which is that in controversy,) which he had surveyed hi February, 1851, and, in January, 1853, he paid the purchase money, and took a grant from the State. Shortly after obtaining the grant, the defendant entered into possession, and had the same in possession at the time the plaintiff\u2019s hill was filed.\nIn December, 1852, the plaintiffs made eight entries of land in the same vicinity, the first of which is as follows:\u2014 \u201cDaniel McDiarmid and Daniel Turner, enter six hundred and forty acres of land in Richmond county, on the south side of Big Muddy creek, beginning at, or near the ford of the creek where the Rockingham road crosses.\u201d The seven other entries are described as \u201cadjoining the first and each other.\u201d On the 27th of November, 1854, they caused these entries to he surveyed, and on the 27th of December, in the same year, they paid the purchase money and took out a grant, embracing the said eight entries, and covering a part of the land contained in .tbe above mentioned grant of the defendant.\u2014 The plaintiffs insist in their bill, that the defendant\u2019s entry having lapsed, became void as to their junior entry, and that the grant which he obtained thereon, was of no validity in equity, and they pray that the defendant shall convey to them the title to so much of the premises as is covered by their grant, and also included in his grant.\nThe defendant, in his answer, alleges that the lands in controversy, had been granted previously to one Alexander McMillan, and to one David Allison, and that it was not subject to entry when the plaintiff made his entry, and that his grant, founded thereon, cannot be upheld in equity. There are several other matters urged against the plaintiff\u2019s equity, and, in support of defendant\u2019s title, but, as the opinion of the Court is based on a consideration altogether independent of these views, it is deemed unnecessary to notice them, or the testimony put in by both sides, in relation to them.\nMcKay and Kelly, for the plaintiff's.\nAshe, for the defendant." }, "file_name": "0029-01", "first_page_order": 37, "last_page_order": 40 }