
    JOHN KROUS vs. JOHN LONG.
    There is now no statute, prescribing the time, within which grants must b« issued, where the entry money has been paid.
    
      A person, therefore, who pays the entry money, may take out his grant . when he chooses, subject to this risk, that if another person enters the game land, without notice of the prior entry, and first obtains his grant, this shall be preferred.
    The case of Harris v. Erving, 1 Dev. & Bat. Eq. 369, cited and approved.
    Cause transmitted from the Court of Equity of Ashe County, at the Spring Term 1849.
    On the.lSth of March 1834, the plaintiff made an entry of 100 acres of land, beginning at a forked black oak, a corner of the land of Adam Krous, dec’d, the South-west corner, on the long tract of Cane Camp Creek, &c. In September 1841, the plaintiff obtained a duplicate warrant of survey, upon which the land was surveyed and a grant issued in November 1841.
    On the 5th of April 1837, an entry of 100 acres of land, beginning on the line of Jos. Alexander, was made by the defendant, John Long, through his agent, James Maxwell, the testator of the other defendants. Under this entry a survey was made by the said Maxwell, who was a deputy surveyor, so as to include all the land, which is contained in the plaintiff’s grant, except ten acres, and a grant issued therefor to the defendant, Long, in 1838, who brought an action of ejectment against the plaintiff and effected a recovery in October 1845. These facts were admitted in the pleadings.
    
      The bill charges, that, in November 1834, the plaintiff filed a certified copy, of his entry in the office of the Secretary of State, and paid the purchase money, five dollars, to the Treasurer of the State, and obtained a certificate of the same from the proper officer ; that, in November, 1836, having had his entry surveyed, he enclosed the necessary papers to the Secretary of State by letter, and made application for a grant, but the grant did not issue, owing, as he supposes, to the miscarriage of his letter. '
    The bill also charges, that the defendants, John Long, and James Maxwell, the testator of the other defendants, at the time the plaintiff made his entry, had full notice, that the land was covered by the entry of the plaintiff, and that the purchase money had been paid within the-time required by law.
    The prayer is for a conveyance and an injunction against suing out a writ of possession, &c.
    The defendant, John Long, denies that he had notice of the plaintiff’s entry or of the payment of the purchase money, and insists that the entry of the plaintiff had lapsed or been abandoned, at the time his entry was made. He admits, that James Maxwell acted as his agent, ás he did not reside in this State, in malring the entry and survey, and in taking out his grant; but he says he does not believe that the said Maxwell had notice of the plaintiff’s entry ; and, if he had notice of the entry, he does not believe he had notice of the payment of the purchase money, but believes that the said Maxwell made the entry for him under the belie! that the entry of the plaintiff had lapsed.
    The other defendants, who are the executors of the said Maxwell, to whom his real estate was devised, deny any personal knowledge and disclaim any title; they deny that their testator used the name of. the other defendant, and made this entry for his own benefit or acted otherwise than1 as agent.
    
      
      H. C. Jones, for the plaintiff.
    
      Clarke and Boyden, for the defendants.
   Pearson, J.

The allegation made in the bill, that Maxwell made the entry for his own benefit, is not sufficiently proven in opposition to the answers. We are satisfied from the proofs, that Maxwell had notice of the entry, and the location of the plaintiff’s entry, at the time he made the entry for the defendant, Long. Notice to the agent is notice to the principal, so that the defendant, Long, had notice. We are also satisfied from the exhibits and the deposition of Mr. Hill, the Secretary of State, that the plaintiff did pay the purchase money within the time required by law, so that his entry did not lapse. This being the case, it is immaterial, whether the defendant had notice of the payment of the purchase money or not. 3n making an entry and taking out a grant for land, which he knew had been before entered by the plaintiff, he acted at his peril, and has no right to hold land, to which another is entitled, because he may have persuaded himself, that the entry had lapsed by the non payment of the purchase money, as it turns out that he was mistaken. It is no excuse for one, who takes the legal title to land, for which he knows another has contracted, to say that he believed the conditions of the contract had not been complied with, and that the right was forfeited, if it turns out not to be as he hoped it was.

So, if one knows, that another has made an entry, he has no right to take it for granted, that the entry has lapsed. He should inform himself, for he is put on enquiry, and, if it turn out that, in fact, the entry had not lapsed, he cannot be allowed to hold the land. It was his folly to be too hasty in seeking an advantage from a supposed state of facts, and to act in the dark. He reckoned without his host. It was insisted in the argument for the defendant, that, although the plaintiff’ had' paid the purchase money within the time required by law, yet .as he did not take out a grant and perfect his title until November 1S41, which was more than two years from. the date of his entry, the grant is inoperative, unless he can bring it within the provisions of some of the statutes extending the time for perfecting title, and that, if this r case falls within any of those statutes, his grant must give way, under the proviso, to ihe defendant, who had in the mean time obtained his grant. The argument as« sumes, that the law requires a grant to be taken out within two years from the date of the entry, notwithstanding the purchase money has been paid within the time required by law. In this the counsel are mistaken. If the purchase money be paid in due time, there is no law fixing upon any particular time, within which the grant must be obtained. The enterer is looked upon as a purchaser, who has paid the price and may call for a title, when he chooses, with this restriction only, that if his entry be vague, it cannot amount to notice, and even when it is so specific, or has been made so by a survey, that he can allege notice, still, if he is unable to prove it, and any other person makes an entry without notice, he loses his right. Subject to this risk he may call for a grant when he chooses, as the law now stands-

The Act of 1796, ch. 455, sec. 13, Laws of North Carolina, required grants to be taken out, as well as surveys to be made, within two years after the date of the entry, although the purchase money had been paid in due time. The. Act of 1804, ch. 651, id., repeals so much of the Act of 1796, as required grants to be taken out, but surveys were still required to be made, within two years from the date of the entry, and there are Acts regularly extending the time for making surveys, and some of the Acts extend the time for taking out grants, without any necessity for it, unless in cases where the purchase money had not been paid in due time. The Act of 1836, ch. 42, Rev. Stat. “entries and grants,” has no provision requiring either that surveys should be made or that grants should be obtained within any limited time, provided the purchase money is paid within the time required, and thus the Act of 1766 is repealed; but persons, who have made entries and paid the purchase money, by neglecting to perfect title, take the chance of losing the entries and their money, if any other persons enter upon the 1 and, whom they cannot prove to have had notice, or, if the entry be so vague and uncertain as not to be capable of being identified, in which case it cannot be made the subject of notice, Harris v. Ewing, 1 Dev. & Bat. Eq. 369.

There .are, since the Act of 1836, statutes from time to time extending the time for perfecting title. They are only necessary, when the purchase .money has not been paid, within the time required by law, although in some the provision is general, probably because the fact, that the Act of 1796 has been repealed by the Act of 1836 in this particular, was not. adverted to.

The plaintiff is entitled to a decree for a con.ve3’ance from the defendant, John Long, of so much of the land, as is covered by bis grant, with costs ; and as the injunction heretofore granted has, by an interlocutory order, been heretofore dissolved, if the defendant has taken possession, the plaintiff’is entitled to have the possession given up to him, and an account of the profits and of the costs at law paid by the plaintiff to the defendant. As to the plaintiff’s own costs at law, he is not entitled to a decree, because he ought not to have resisted the recovery, as he did not. have the legal title. As to the other two defendants, the bill must be dismissed without costs. The allegation that their testator acted otherwise than as an agent, although not fully sustained, so as to entitle the plaintiff to a decree against them, is still so supported as to show, that the plaintiff had a reasonable ground for making them parties and to call for their title.

Per Curiam.

Decree accordingly.  