
    KERR’S LESSEE vs. PORTER.
    Construction of entries. How far the surveyor can depart from the entry when older claims interfere. What prosecution of a claim by suit, shall prevent the operation of the statute.
    The plaintiff, Samuel Kerr, claimed under a grant to Joseph Kerr, for 640 acres, surveyed, March the 8th, 1807, and dated May the 19th, 1789, which was conveyed to the lessor of the plaintiff, on the 8th of February, 1791. The entry on which the grant was founded, was made the 30th of December, 1784; it calls to lie “on the north side of Cumberland river, on the dividing ridge between the waters of White’s creek and Buckanon’s spring branch, bounded on said Buckanon’s line to the west, and Swanson’s line to the north: beginning at said Buckanon’s south west corner, running along said Swanson’s line, west, to include a spring marked D. L. and north for compliment.”
    
      The defendant claimed under a grant for a service right, which issued to John Ford, for 640 acres, dated February 15th, 1786, surveyed the 11th of July, 1785. This grant was founded upon an entry date March the 29th, 1784, the calls of which were to lie “on the north side of Cumberland river, and on the north side of Thomas’s creek, beginning on Nolan’s east line, running up on both sides or the creek.”
    The lands were surveyed in the manner pointed out in the subjoined plat.
    
    
      
    
    The defendant had been twenty one years in possession, and in order to remove this ground of defence, a suit had been commenced by ejectment, by the plaintiff against the defendant and others, on the 11th of August, 1795, which terminated in the year 1796, in favor of the plaintiff as to the other defendants, but against him as to the defendant, Porter. A bill in equity was instituted by the plaintiff against the defendant, on the 6th of September, 1798, which was dismissed without prejudice, in the year 1802. The present action was commenced on the 22d of April, 1805.
    It was proved. that some of the upper drains of Thomas’s creek, called For in the defendant’s entry, headed in the southern part of the tract as surveyed, but the main creek headed further north, and more east ; that no part of the main creek, which was but a branch at this place,ran through Ford’s tract,part of which the defendant claimed ; that it headed northwardly, and run southwardly, leaving the south east corner of Ford’s tract to the west,passing through the south east corner of Noland’s pre-emption. It was also proved, that the plaintiff's claim was surveyed agreeably to his entry.
    Stewart and Grundy for the plaintiff,
    took the following grounds. That their entry was special, and their survey strictly conformed to its calls.-Though we have the youngest entry and grant, we rely upon shewing, that the claim of Ford, under which the defendant holds, was not surveyed agreeably to his entry, by any possible construction that can be given to it, and on that ground we ought to recover.
    The inconsistency in Ford’s entry makes it vague; it first calls to lie on the north side of Thomas’s creek, and then to run on both sides of it; now both cannot obtain, and the entry is of no effect on this ground. The next call, though not inconsistent with another, is vague; but if it means any thing, it will not bear the construction which has been put on it in making the survey. The call alluded to, is that which calls to lie on the east line of Noland; this must mean the east boundary line of Noland. The survey is made on the north boundary line. The south boundary line of Noland, might, with as much propriety be called his east, line as the north, each of them run east. But admitting the claim might be surveyed on the north boundary, by the terms of the entry, it should have adjoined the line its whole length, otherwise, an enterer would have a latitude inconsistent with the nature and design of an entry, which is to give notice to others, where the land is intended to be appropriated, so that they may know how to take up land in safety. So that if any rational construction be put on Ford’s entry, and a survey had taken place accordingly, it never could have interfered with us. Had the surveyor surveyed of the east boundary of Noland, or the whole length of his north boundary, it would not have touched Kerr’s tract. If any other construction of the entry be relied on, it will be vague and uncertain. If we had departed in our survey from the calls of the entry, and Ford had conformed, we could not hold, and surely the rule ought to be reciprocal. It is true, it appeared in evidence, that all the claims which are laid down in the plat, were older than Ford’s, except Murray’s. That he could not run any other way than he did, and not run into older claims, is certain, but that did not give Ford a right to include land in his survey, which his entry did not call for, and which, before his survey, had been previously entered by us.
    The rule of law is, that an enterer may depart from his entry if constrained to turn aside from his endeavors to conform in the survey, by older claims ; but that departure must embrace vacant land, and not any which hod been entered in the intermediate time, between the defendant’s entry and survey.
    The latitude of running by a surveyor relied on by the defendants counsel, never can stand the test of justice, reason or law. Suppose a neighbourhood of five mile’s square, to be nearly all taken up by pre-emption claims, would a man be permitted to run in narrow slips around these pre-emptions, any way, and every way, and take a younger enterers land, many miles off? Surely not : for such enterer could not possibly have any notice or idea of such a serpentine claim as that, our entry is special, and the survey conforms to it.
    The former’ practice of this country has been to consider older enterers as having great latitude in making their surveys, and like a torrent to sweep away all before them. This is not agreeable to reason nor justice, and as men become more enlightened they will see the monstrous absurdity of such tenets.
    In the infancy of a country, there are not the same means of information, and but few, comparitively possess it. It seems difficult to suppose, that as correct decisions on complicated land questions would take place, as now, and in all probability we shall have attained ten years hence to more correct views than now.
    As to possession it has long been settled, that the statute has no operation against us, until our grant issued ; 
       from that time it might begin to run, but not before. Our grant issued in May, 1789. Agust, 1795. Suit was commenced before the expiration of seven years. This suit was ended in 1796. September, 1798, we commenced a suit in equity, which ended in May, 1892. The present action was commenced in April, 1805, so that there never has seen seven years without bringing suit, since the grant issued to us.
    The plaintiffs counsel cited Stat. April, 1784. c. 14 s. 7. Novem. 1777. c. 1. s. 10 Ten. Laws, 1797. c. 43. s. 4.
    Sharp, Whiteside and Haywood, for the defendant.
    The greatest objection that can arise from recurring to entries, in trials of ejectment is, that it leaves things in a state of uncertainty ; as to legal principles the opinion of the court must be the same. The defendant has the oldest grant as well as entry. The next enquiry is whether we have conformed our survey to it.
    An entry is to be construed, according to the common understanding of men, not with technical nicety. Much has been said with respect to its uncertainty, particularly with respect to the call for adjoining the east line of Noland. In common parlance, this would be the line running east and west; but it is said, that this would equally answer for the south boundary of Noland, as well as the north; be it so, but other descriptions in the entry clearly shew, that the north boundary was intended, for it calls to run up the creek, which it could not do without running all the way in Noland’s tract, which no surveyor or other person could suppose was intended.
    It is further said, that the east boundary of Noland, was intended; suppose it was, the same land would be included that now is, if you conform to the entry by running up the creek; for the moment you ran up, the survey would be confined by older claim, which is admitted, so that the effect would be the same. Our entry is special ; all entries obtain that character, when they are so certain to a common intent, that they convey to the surveyor an idea of the place intended to be appropriated, and consequently to others, to stand by as to themselves, until the oldest is run out. Now this is clearly the case with respect to Ford's entry.
    Upon principles of law, we have conformed to the entry. Enquiry has been made, whether Noland ran agreeably to his entry-this is no consideration with the defendant. The surveyor was entrusted by law to run, and what he did, as it respects third persons, must be supposed correct at least, unless there had been a glaring deviation. If the surveys of others were absolutely wrong, we should not be bound to follow or act upon that error. November, 1777, c. 1, s. 10. April, 1779, c. 6, s. 6. April, 1783, c. 2, s. 12, were relied on as to the intention of entries and duties of surveyors. Ford was obliged to survey his land in the manner he did, he could not survey in a square or oblong, the adjoining lands having been previously appropriated.
    .Independent of all these considerations, we are entitled to hold against the plaintiff by seven years possession. We ought to give the statute such a construction, as will attain its views. It was made to quiet disputes, and if the statute can be evaded in the way contended for on the other side, disputes might be kept alive forever. There is nothing more to do, than bring a suit once in seven years.
    In personal actions, a new action must be brought within one year after the termination of a former suit, If so in personal, it is much more important it should be so in ejectment. Having possession, we contend, that if the surveyor has deviated from our entry, the surveyor of their claim has done so too, and is that case we ought to hold. It will be recollected, that there has been no proof as to the spring called for in the plaintiff’s entry; if the entry had been complied with in that respect, we should have heard of it, no doubt; and as we have not, it is a fair conclusion, that they did not conform as to the inclusion of the spring called for. We have been and possession of part of the land in dispute, which covers the whole we claim.
    
    The plaintiff's counsel have opposed the bar of the statute, by shewing the institution of suits.
    By the common law, our entry into the land, and claim, would prevent the operation of the statute.—Agreeably to our law, 1797, c. 47, s. 4, suit is necessary, and entry will not do. Let it be admitted that suit is equivalent to entry, but such suit must be prosecuted with effect; there must be no default in the plaintiff, else it cannot create a saving —The suit spoken of in the book, must be a suit at law; one in equity will not have that effect. Admitting however that it would, it must be prosecuted with effect; a non-suit or dismission, can have no operation. After all that has been said, if such suit could have any force, it cannot last the unreasonable time of seven years; it could only stop the bar of the statute for one year from the termination of the former suit. As to the statute of limitations, 2 Atk. 395, was relied on.
    
      
       The tract represented by the letters A. B. C. D. is Kerr’s ; that represented by the dotted lines is Ford’s, under whom the defendant claims.
    
    
      
       See 3 Binn. 374. acc.
    
    
      
       See Hardin’s Rep. 362. 3 Cail. 419. 11 East.297 3 Binn. 35, 28. Taylor and Quarles vs. Brown, S. C. U. S. 1812, MSS.
    
    
      
       Willes. 257.
    
    
      
      
         2 Hayw. 178.
    
    
      
       Co.Lit. 262. Litt. S. 442.
    
   Overton, j.

The first enquiry here is, who has the oldest grant; he who has, must have the legal right on his side, and must hold, unless the other party has an equitable right, superior to the equitable right of the person having the legal title.

As the defendant has this legal right, we will enquire whether it is overreached by the equitable right of the plaintiff. In order to ascertain this, it will be necessary, first, to examine the statutes of North-Carolina, relative to the appropriation of lands ; for, so far as the legislature have declared their will, we must be bound by it, both in law and equity. And secondly, apply those principles to the case before us.

In the examination of the first, we will begin with entries. The 5th section of the act of North Carolina, 1777, is the ground upon which an opinion of entries must be founded. This section directs the enterer to describe in his entry such remarkable places as may be within the tract, or artificial or natural boundary lines of others it may adjoin. It then directs, that an order of survey shall issue from the en try taker. The section does not disclose to us what is the primary intention of the entry; the surveyor is then directed to survey, and the manner of doing it, and of making his return, is pointed out in section 10.

The next act which seems applicable to this subject, is that of April, 1779, c. 6, s. 6, which directs surveyors to survey according to priority of entry; the act 1783, c. 2, directs the same thing; April, 1734, c. 14. s. 7, directs that surveys shall be on the land entered, as nearly as may be, agreeable to the location thereof. 1786, c. 20, and 1787, c. 23, are also directory to surveyors in making surveys, so that the first enterer shall have the preference. And from them it evidently appears, that the first care of the legislature was to prevent interferences; that the oldest special enterer should have his land, and if the whole, or a part of the subsequent enterers land, be taken by an older entry, he might have the liberty of removing, or taking the quantity elsewhere. April, 1784, c. 14, s. 7. October, 1784, c. 19, s. 6. 1786, c. 20, s. 7. 1789, c. 3.

Taking all these acts together, we find, that the legislature designed, that the oldest enterer should obtain a grant in preference to others; and previous to the act of 1786, it was intended. that, that grant should be conclusive. The preamble to the act of 1786, contains a declaration of the understanding of the legislature on this subject.

If any doubt should remain upon former acts, this puts the question at rest, and shews it to have been their intention that the oldest enterer should get the oldest grant. When they made this declaration, it was perceived, that interferences had taken place, notwithstanding the care used to guard against it by the directions given to their officers, entry-takers, surveyors and secretary.

The first land law, passed November, 1777, c. 1, s. 10, clearly shews that it was the intention of the legislature, that surveys should not interfere. It directs surveyors, when running out entries, to do it in a square or oblong, not exceeding in length, twice its breadth, “unless where such lines interfere with lands already granted or surveyed, or unless where the survey shall be made on any navigable water ; in which last case the water shall form one side of the survey, and the breadth on such water, shall not be more than one fourth part of the distance back from the water.” In the 7th section of the act of October, 1779, c. 4, there is a provision, for persons having made, or who thereafter should make entries on navigable waters, that if the surveyor, in running out the lands, shall be prevented from running out the same agreeably to the directions of the before recited act, (November 1777, c. 1,) by the boundary of any land heretofore run out, that then, and in that case, the surveyor may and shall run out and survey the same, in the same manner that other lands are directed to be laid out.” Beside the general scope and language of the statutes, this provision, with that contained in the 7th section of the act of April, 1781, c. 14, unequivocally expresses the design of the legislature, that surveys should not interfere or run into each other, though in the act of avoiding it, the surveyor should be obliged in some measure to depart from the directions of the entry. The language of the last act is, that the survey shall be as near as may be on the land entered.

The next step will be to ascertain the meaning of Ford’s entry. Upon that part of it which calls to adjoin Noland's east line, no opinion will be given, supposing it stood alone without any other description. There seems, however, to be strength in the argument, that the south boundary could not have been meant, for in this view, and running up the creek, as the entry called for, it would cover Noland's land, which cannot be supposed, as the entry calls to adjoin; and being an older claim, it is a fair conclusion, that Ford did not design to interfere with it; if it had been made to adjoin the east boundary of Noland, and run up the creek, nearly the same land must be included that now is.

As to the conformity of the survey to the entry, it has been insisted, that the survey should have joined Noland’s north boundary its whole length. I am not prepared to say this, even if older claims had not interfered, but as the survey was confined by older claims, the surveyor did his duty when he confined himself to the lines of those claims and he was authorised to run until he included the quantity called for. This was one of the points determined in case of Hoggat vs. M'Crory and Gillaspie.—The surveyor had his election to run the entry in a square or an oblong, if older claims did not interfere ; where that was the case, he was authorised, or rather constrained, to depart from that method, and run it binding on old lines, until he got his quantity agreeably to the 10th section of the act of 1777. In this view of the subject, supposing the north boundary of Noland to be the line called for, upon which no decisive opinion is given, it seems that the survey of Ford is correct.

After having said thus much of the entry and survey of the defendant, it follows, that something should be said with respect to the statute of limitations.

Unless the operation of the statute is interrupted by the institution of the suits at law and in equity, the statute will bar this claim. Upon this part of the case, I am not prepared to give an opinion that would be satisfactory, not having time to consider it, further than this, that it seems as if the institution of a suit in equity will hinder the running of the statute, as well as a suit at law.

The reasoning on the part of the plaintiff, with respect to the institution and termination of the suits, is far from being satisfactory.

Powel, j. did not give any decisive opinion.

Humphreys j. being related to one of the parties, did not sit.

Verdict for the defendant, and upon motion a rule was granted for a new trial, in order that the opinion of all the judges might be had, as it involved leading and important principles.

Note.—Upon looking into the books respecting the operation of the statute of limitations on this case, it has occurred forcibly, that the law is with the defendant.

The sixth section of the statute of limitations,provides for three cases respecting suits, in which the statute shall not operate.

1st. Where judgment for the plaintiff has been reversed for error.

2d. Where judgment far the plaintiff has been arrested. And

3d. Where the defendant cannot be served with process. From this section, together with the authorities, we may attain a clear view of the law in the above case. Spencer’s case, 6 Co. 10, contains the learning of the common law on the subject. In order to entitle a person to a suit by journies accompts, says the author, the plaintiff must have been in no default in the former suit. It must be obtained afterwards per dietas computatis, recently, or as soon afterwards as may be. What should be reasonable time by the common law, was left to the judges in their discretion ; thus, in Spencer’s case, fifteen days was said to be a reasonable time. In 1 Salk. 393, thirty days was adjudged to be a reasonable time.—Our statute, section 6th, seems wisely to have put an end to this discretion, by enacting, that one year shall be this reasonable time. There is no doubt, but the bringing suit will save the statute of limitations, but the writ must be returned. 6 T. R. 617, and continued to the time the plaintiff avails himself of it in his replication. So it is, though the process may have been irregular, 2 Bl. Rep. 1131, whereby, as it would seem, the plaintiff is thrown out of court without his default. In all cases where the plaintiff has negligently or designedly abandoned his former suit, he cannot reply the institution of a new one, to save himself from a bar.

Lord Coke in Spencers case, says that the second suit must be in the same court so as to make it a continuance of the former one: From this authority I am inclined to doubt the correctness of the opinion entertained on the trial, that a suit in equity will save the bar, in a trial of a suit at law. It may perhaps do it where the plaintiff had mistaken his remedy in equity, and was sent back to law, it seems correct that it should in that case. All the cases in the books on this subject suppose one of two things.

1st. The principle of journies accompts.

2d. That the commencement of the suit, before the court, was in fact previous to the time when the attached ; and with that view courts have permitted continuances to be entered.

The first principle is embraced and regulated by the 6th section of our act. The principle contained on this section, would enable a person to avail himself of any former suit which went off without his default, as error arrest of judgment, &c. 1 Wash. 302. 2 Wash 219. but the time of instituting a new suit, is not left in such cases to the discretion of the court, as it was by the common law ; it must be within one year after the termination on a former suit. Under this principle the law always supposes such termination to have been against the plaintiff, without a determination of the merits.

The principle of acquiescence in a former suit is contained in the act. It attaches after one year, and no suit can be afterwards commenced we are certain ; but I am strongly inclined to think, that where the time prescribed by the statute has expired, previous to the termination of a suit against the plaintiff without arrest of judgment, or writ of error appeal or using any other appropriate means within a year, to produce further investigation of the same cause, that no time is allowed to bring another action, so as to save the bar of the statute of limitations. Such a case would not be covered by the most liberal interpretation, that could be given to the 6th section. Nor would it fall within the principle of the second division of cases, respecting the institution or termination, of the same suit. This view of the subject would certainly be more consistent with the peace and happiness of society for the promotion of which the statute was made, and which in the case of Green vs. Rivet, 1. Salk. 421. is said to be a statute upon which the security of all men depends and ought to be favored. 4 Mass. 188. 2 Bay 160. 1 Binn 212. 
      
       See Hardin’s Rep. 472.
     
      
      
         Sch. and Lef. 413, 425.
     