
    R. I. Chester vs. Hubbard and Anderson.
    1. Where an act of the assembly provided that the office of entry-taker should? be open for the reception of entries from and after the 1st day of January, 1838, until the 1st day of January, 1839, it seems, that the office is not open for the reception of entries on the said 1st day of January, 1839.
    2. The 11th section of the act of 1837-8, protects a possession of three years1 against an entry by a warrant holder, though the possessor may not be able to' produce legal proof of an occupant claim dr of the assignment thereof to himself..
    3. The statute of 1837-8, ch. provides that the office of entry-taker shall be open for the reception of general entries by warrant until the 1st day of January, 1839, and also provides that an occupant shall be allowed'till the 1st day of January, 1839, to prove his occupancy and spread it upon the general plan indicating the land as appropriated: Held, that the occupant would be entitled to the last moment the office was open for the probate of his occupancy, and that there-was no period of time at which the entry-taker could legally receive an entry by warrant holder upon the land.
    Robert I. Chester filed his petition for a mandamus against Hubbard, entry-taker of Haywood county, in the circuit court of Haywood county, on the 1st day of October, 1839, to compel the entry-taker to receive an entry upon land lying in said county of Haywood. Chester was the holder of a North Carolina land warrant, to the satisfaction of which, the vacant and unappropriated land lying south and west of. the congressional reservation line was subject. The petition states, that the land was vacant and unappropriated, that he had tendered to him on the 1st of January, 1839, an entry and warrant, and that the entry-taker had file-gaily and improperly refused to receive his entry and spread the same upon the general plan of the entered and appropriated lands of the county of Haywood.
    The entry-taker, Hubbard, being served with process, appeared and answered, stating, that he had refused to receive the entry, and that he had refused, because the land was previously “possessed and claimed by an occupant.”
    Anderson was permitted to be made a party defendant, he claiming the right of occupancy under the statutes of the State. His answer was filed at the February term, 1840, from which, and the testimony in the case, it appeared that in 1829 one Samuel Allen settled upon this tract of land, it being then regarded as vacant and unappropriated by all. Allen built houses upon it, cleared some fifty or sixty acres and remained in possession of it until March, 1834. At this time he sold the possession to defendant Anderson. Allen then deposited in the office of entry-taker a location containing therein according to certificate of survey, about 200 acres of land. On this location there were endorsed the following words: “Transferred by assignment to H. J. Anderson, March 19th, 1834.”
    Anderson took possession of the land by virtue of the purchas e, having paid Allen $150 therefor, and continued to reside upon it till the filing of petition. The defendant, Anderson, in his answer insists that the act of the general assembly passed in 1836, ch. 45, sec. 12, and the act of 1837, ch. 1, sec. 11, secured to him a good and perfect right of occupancy to 200 acres of land, and prays the benefit thereof in as full a manner as if formally pleaded. The defendant, Anderson, also insists that the office was not open on the 1st day of January, 1839, for the reception of entries by warrant.
    The plaintiff filed a general replication to these answers, and at the January term, 1840, the cause came on to be heard before the Honorable J. Read, judge. The petition was dismissed. From this judgment the petitioner appeals in error.
    
      Scurlock, for petitioner.
    
      Loving, for the defendants.
    The act of assembly, passed 1837-8, (chap. 1, sec. 9,) under which petitioner was authorized to enter his warrant, does not authorize entries to be made unless the land is vacant and unpossessed by any one, and expressly provides that no warrant or certificate-holder shall interfere with any occupant claim, and that the whole of said warrant or certificate, or part of warrant, shall be entered in the same county.
    It is objected by the defendants that the petitioner had no right or law for making the entry he proposed. First, because he does interfere with the occupant claim of H. J. Anderson, the assignee of Samuel Allen; and second, because his (petitioner’s) warrant or certificate is for 274 acres of land, and the petitioner only proposed to enter 200 in the county of Haywood without showing what disposition would be made of, or where, and in what county he would enter the remaining 74 acres, and until that was done the entry-taker had no right to receive the entry for the 200 acres.
    It is further objected by the defendants, that the petitioner did not present his entry to the entry-taker until the 1st day of January, 1839, when, by the law (the said act of 1837-8,) the entry-takers’ offices were all closed; and we cite the 10th section of said act in proof of this position.
    This section, declares that the several county offices shall be and remain open from and after the first day of January, 1838, until the 1st day of January, 1839 for the purpose of making entries, and on which last mentioned day, the several offices shall be finally and forever closed.
    It will doubtless be insisted by petitioner’s counsel, that that the petitioner had the right to tender his entry on the 1st day of January, 1839, and that the entry-taker was bound to receive entries on that day.
    We cannot conceive that the statute intended that any entries were to be made on that day, and although to persons not familiar with the rule laid down in law in counting time, it would seem that entries might be made, and the office closed on the same day, (there being time enough,) yet where the law knows of no fraction of a day, we must conclude, that, all entries shall have been tendered before the 1st day of January, 1839, and on that day the office closed;for if it be conceded that the entry-taker was bound to receive entries on the 1st day of January, 1839, the law knows no time of that day when he could refuse, and the statute fixing none, the consequence would be that the office would have to remain open the entire day, and therefore could not be closed until the 2nd day of January, 1839, when the statute requires that it shall close on the 1st day.
    
      We insist that the legislature intended that no entry should be made on the 1st day of January, 1839, according to the strict legal interpretation of the act, and refer to the act of 1836, ch. sec. 14, upon the same subject, where the legislature intended by that act that entries should be made on the 1st day of October, 1837, the day on which the office was to be closed. That section reads thus, “and all persons failing to present their claims, «fee. on or before the 1st day of October, 1837, shall be barred,” «fee.
    And defendants further insist and rely upon the statute of 1837, 8, ch. 1, sec. 11, to protect the defendant Anderson, as the assignee of Samuel Allen, in the possession of the occupancy which he has had for some six or seven years, to say nothing at present of the previous possession by Allen from 1829.
    The 11th section of the act of 1837-8, provides for all occupants and their assignees where they have heretofore had, or may,hereafter have the peaceable possession of the same for three years, and that no advantage shall be taken of them by reason of any informality, defect or omission in the certificate or probate of occupancy, or in transferring or assigning the same. But the said possession shall bar all other claimants and be notice against all claims or suits, legal or equitable.
    It will be seen that this section does forbid any one to take advantage of any defect of an occupant claim, and provides that the possession shall bar all other claimants and be notice against all suits, legal or equitable. Upon what ground then does the petitioner ask the entry-taker to receive his entry? surely not because the land proposed to be entered by him was vacant and un-possessed; for when he called on the entry-taker to tender his entry, the entry-taker refused (according to the answer of the entry-taker) to receive it, because he considered the land previously possessed.
    Where did the petitioner get his information that the land was vacant and subject to his entry? Not from having seen himself that the land was vacant; not that any one told him so, for there is no such proof; but on the contrary the proof in the case shows 'that Allen settled the land in controversy as an occupancy in the year 1829, and that he continued in the possession until he sold it to defendant Anderson, who has held and possessed the same, as assign-ee of Allen, ever since, and has had a good portion of it in cultivation. Nor did petitioner derive his information that the land was Vacant from'hn examination of the entry*taker’s books, but on the -contrary, upon an examination of the books there was the land spread upon the books as an occupancy in the name of Samuel Allen in the year 1829, and transferred by him in 1834 to Harrod -J. Anderson, one 'of the 'defendants, who has constantly had the same in possession since that time.
    With these facts before us, we must conclude, that petitioner has not made an effort to enter the land in controversy from any belief that it was really vacant, and unpossessed, but from the belief that there was some defect or informality- in the certificate or probate of said occupancy or in the assignment thereof; and indeed the -petitioner throws out such idea in his petition, when he speaks of the reasons given by the entry-taker for not receiving his entry-.
    Defendant Anderson insists, that if there is any defect or informality in -the -certificate or probate of occupancy, -or any defect or informality in transferring or assigning the same to him, that all persons are-expressly prohibited by the 11th section of -the act of 1837-8, from taking any advantage of it, and that the possession of the occupancy in the first instance by Samuel Allen, in 1829, and ‘his transfer to him in 1834, and possession as assignee of Allen since, is a bar to all claimants and is notice against all claims or suits, legal or equitable, and claims to be protected in -his posses•sion under and by virtue of said act.
    The proof shows beyond all doubt the settling 'of the land in dispute in the year 1829 by Samuel Allen as an occupancy; that he remained in the possession until he sold to Anderson; that Ander-■songave Allen $-150 for it; that Allen delivered up the possession to Anderson, and that Anderson has constantly ever since had it in his possession, and that he has been cultivating about fifty or sixty ¡acres, and the answer-of Hubbard, the entry-taker, shows that the-land in dispute is entered on his books as an occupancy and was previously possessed, and heffherefore refused to receive the entry ■of the petitioner. And defendant Anderson insists, with all these facts on his side, the law already referred to will surely protect him in his possession against the claim of the petitioner who had full notice of it, and is therefore barred from having and maintaining his suit, &c.
   Turley, J.

delivered the opinion of the court.

The plaintiff in error, Robert I. Chester, on the 1st day of Jan-«ary, 1839, tendered to James Hubbard, the entry-taker of Haywood county, an entry for two hundred acres of land founded on warrant No. 3643, for two- hundred and sixty-four' acres which was refused; he filed his petition for writ of mandamus for the purpose of compelling its reception. The defendant, Anderson, claiming a right of occupancy in the land sought to be entered, was permitted to defend jointly with- Hubbard,

Hubbard answers, that he refused the entry Because' he believed the land was possessed by an occupant. Anderson answers and says, that he claims the land by virtue of an assignment of an occupancy from one Samuel Allen, made to him on the 3d of March, 1834, under which he then took possession, and has remained in possession ever since. He further says that the entry-taker’s office was closed by operation of law when the- entry was tendered by the plaintiff; that the entry-taker had no power to receive, and therefore acted correctly in refusing it. The proof shows that the defendant, Anderson, did purchase the occupancy from Allen as he alleges, and that he-has been in actual possession of it ever since. There is no proof showing that the occupancy of Allen was regularly proven and spread upon the general plan.

The act of 1837, ch. 1, which was made to provide for the occupant settlers south' and west of the Congressional reservation line, and for other purposes, and under which this entry is sought to be made, provides in its first section, that all persons who before or at the passage of the act, were bona fide resident occupant settlers upon vacant and unappropriated land, south and west of the Congressional reservation line, may have any quantity of said land, to include his or their improvements,, not to consist of more, than two hundred acres, surveyed in legal form by the county surveyor, and such survey, the owner thereof may have represented on the plan of the county by the entry taker.

The 2d section provides, that the occupants-shall have till the 1st day of January, 1839, allowed them to have their claims proved, surveyed and represented in the plan of their respective counties.

The 9th section provides, that the owner of any land warrant or certificate, may enter the same on any vacant land south and west of the Congressional reservation line, provided they do not interfere with any occupant claim.

The 10th section provides, that the several county offices shall be and remain open from and after the 1st day of January, 1838, until the 1st day of January, 1839, for the purpose of making entries, on which day they shall be finally and forever closed.

The 11th section provides, that occupants provided for by that and all former statutes, and their assignees, who have had or may have peaceable possession of their occupancies for three years, shall be protected in their rights, and no advantage.shall be taken of them by reason of any informality, defect or omission in the certificate or probate of occupancy, or in transferring or assigning the same; but the said possession shall bar all other claimants, and be notice against all claims or suits,-legal or equitable.

There -are several grounds upon which defendant Anderson rests his claim under this statute.

1st. He says, the time for making the entry has expired by the provisions of the 10th section of the statute. It is difficult to say this is not so. But we do not feel .that it is necessary to say that it is.

2d. He says, he is protected against the entry by his peaceable and quiet possession of the premises for more than three years, under the provisions of the 11th section of the statute; although he may not have produced legal proof of Allen’s occupancy and the assignment to himself; and so we think.

3d. We say, if he is not protected by either the 10th or 11th sections, he is by the 3d. If there be no proof of Allen’s occupancy and the assignment, then is Anderson an occupant under the provisions of the 1st section of the statute; and by the 3d section, he is allowed till the 1st day of January, 1839, to prove his occupancy and spread it upon the general plan; and it would be strange if the office were open longer for the reception of entries than the probate of occupancies; and that too under a statute called an act to provide for occupant settlers. Not so. The day the office closed as to one, it closed as to the other, and the occupant having the last possible moment to prove his occupancy, there was no period of time at which the entry-taker could legally receive the entry.

The judgment of the circuit court is, therefore, correct, and will be affirmed.  