
    IN RE DREWRY.
    (Filed December 23, 1901.)
    
      GRANTS' — Entries—Caveators—Protest—The Code, See. 2765 — Public Lands.
    
    The Code, sec. 2765, applies only where it is admitted by both sides that the land entered is vacant land and the question to' be determined is as to whom the grant shall be issued.
    IN tbe matter of entry of lands by E. S. Drewry, beard by Judge B. W. Timberlahe, at Spring Term, 1901, of tbe Superior Court of Bubee County. Erom a judgment for Drewry, caveators, J. M. Barnbardt and others, appealed.
    
      Avery & Ervin, for Drewry.
    
      J. T. Perkins, S. J. Ervin,j and E. J. Justice, for tbe ca-veator J. M. Barnbardt.
   Fubohes, C. J.

Tbe respondent Drewry made three entries of land on tbe South Mountain in Burke County — one of 600 acres, and two of 640 acres each. Tbe entry-taker advertised these entries, as provided for in section 2765 of Tbe Code, and tbe appellants, Barnbardt and others, filed their caveat and protest. And tbe matter was certified to tbe Superior Court, notice issued to tbe enterer, Drewry, according to tbe provisions of said section, and Drewry filed a reply. Tbe caveators, in their protest, say they are tbe owners of tbe land tbe enterer claims that said entries cover; that said lands were granted to William Erwin, James Erwin and James Greenlee many years ago, and they derived their title through mesne conveyances from them, and they are now in tbe actual possession of said lands by their tenants. Tbe caveators also allege that said entries are so vague and uncertain, in location and description, as to render them void and of no effect.

Tbe respondent, Drewry, in bis answer avers tbat said entries are not void for'vagueness and uncertainty, and alleges tbat tbey are altogether regular and sufficient in location and description. He also denies tbat tbe caveators are tbe owners of tbe lands covered by bis entries, or tbat tbey are in possession of tbe same.

Upon tbe matter coming on for trial, and tbe pleadings, including tbe entries, tbe caveat, notice, and respondent’s answer being read, bis Honor dismissed tbe proceeding at tbe cost of tbe caveators, and they appealed to tbis Court.

Tbe matter bas given us trouble, as it bas been difficult to determine wbat was tbe policy of tbat part of tbe statute wbicb provides for tbis proceeding, or to discover its benefits. We bave certainly been unable to see bow it could affect tbe caveators in tbis case.

As well as we bave been able 1x> learn tbe bistory of tbe statute, tbis provision of it was incorporated into tbe law on account of tbe land offices (entry offices) being closed during tbe Eevolutionary War. And although it bas stood upon our statute-books for more than a hundred years, we are unable to find out one reported case in wbicb tbe proceedings seem to bave been under tbis statute. McNeill v. Lewis, 4 N. C., 517. And tbe information we get from tbat case leads us to sustain tbe action of tbe Court in dismissing tbe proceedings. Tbat case bolds tbat tbis proceed: ing applies only where it is admitted on both sides tbat the land entered is vacant land, and tbe question to be determined is as to whom tbe grant shall be issued. We readily yield our assent to tbis interpretation of tbe statute, as it seems to us to be tbe only one tbat can be supported by reason. Eor if it be true tbat said land bad once been granted and tbe caveators are tbe owners of said land by a regular chain of title from tbe State, and are in tbe actual possession of tbe same, as they say tbey are, no entry or grant tbe enterer Drewry could make or procure could affect tbeir title; and the enterer would be liable as a trespasser for entering upon and “treading down tbe grass.”

We do not think it necessary to discuss tbe regularity or-sufficiency of tbe entries, as they can in no way affect tbe rights and title of the caveators, whether they are regular and sufficient in formi or not.

There are quite a number of cases cited under section 2765■ of The Code, but when they are examined, it is found that they do not apply to the provision of that section which provides for a proceeding by caveat. They are suits in equity,, where there has been a grant issued by the- State, in fraud of some prior enterer; or, at least where this is alleged; and the Court is asked to declare such alleged fraudulent grantee-trustee for thé benefit of the first enterers, and have no application to the ease now under consideration.

Ear the reasons stated, and the authority cited, the judgment of the Court is

Affirmed.  