
    IDA E. GARRISON et al. v. R. WILLIAMS et al.
    (Filed 19 May, 1909.)
    1. Pleadings — Answer—Demurrer.
    When a complaint does not state a cause of action, the defect is not waived by answering, and defendant may demur ore tenus, and the Supreme Court may take notice of the insufficiency, ex mero motu.
    
    2. State's Lands — Enterer—Time for Payment — The Code — Revisal.
    The Code, sec. 2760, providing the time limit in which the en-terer of the State’s vacant and unappropriated lands should pay for them, applies to such entries made before the adoption of the Revisal, sec. 173, making certain changes in that respect.
    3. State’s Land — Enterer—Notice of Entry, by Whom Made.
    The legislative intent is that the posting of the notice of an entry of the State’s vacant and unappropriated lands should be made by its officer and not by the enterer; and the requirement that the protest should be filed within the ten days during which the notice of entry is posted (The Code, sec. 2765) is mandatory.
    4. State’s Land — Enterer—Time of Protest — Condition Annexed— Limitation of Actions.
    The provision that protest must be filed to an entry of the Stateis vacant and unappropriated land within ten days, etc., is a condition annexed to the right of protest, and not a statute, of limitation.
    5. State’s Land — Enterer—Protest—Pleadings—Irregularities—An-swe r — W a i y e r — D emurrer.
    When it is alleged by an enterer of the State’s vacant and unappropriated lands, in his complaint, that defendant protested his entries before the time limited for him to take out his grant, and thus prevented him from doing so, pending the proceedings to determine the validity of the protest, the failure to allege that the notice of entry was seasonably given would be but a defective statement of his caiise of action, which an answer would waive, and as against which a subsequent demurrer would be bad, it being equivalent to a motion to dismiss after answer.
    ActioN tried before Ferguson, J., on demurrer to complaint, at December Term, 1908, of Burke.
    Plaintiff appealed.
    
      J. M. Mull and S. J. Ervin for plaintiffs.
    
      Avery & Ervin and Avery & Avery for defendants.
   Walker, J.

This action was brought by the plaintiffs for the purpose of having the defendants declared trustees for the feme plaintiff, Ida E. Garrison, of certain tracts of land, de^ scribed in the amended complaint, containing about fifteen hundred acres. She alleged that, on 14 August, 1900, she duly entered said land in the office, of the entry taker of Burke County, and that, in the year 1902, the defendant Richard Williams entered the same land, and his rights under said entry, if any,' have passed to his codefendants, with notice of the prior entry of the feme plaintiff. That, on -22 December, 1902, just nine days before the time limited for the feme plaintiff to take out her grant, the defendants protested her entries, and thereby preventd her from having a grant issued during the pendency of the proceedings to determine the validity of the protest. That while said proceeding was pending, and during the year 1904, the defendants caused grants to be issued upon the entry laid by the said Richard Williams, and thereby acquired, though unlawfully, wrongfully and fraudulently, the legal title to the premises. That the protest of the defendants was, at August Term, 1905, of the Superior Court, decided against them, and the feme plaintiff thereupon, and within nine days after the rendition of the judgment of the court in the said proceeding, obtained warrants, of survey and received grants from the State for the said lands. Answers were filed by the defendants, denying the fraud alleged in the complaint and asserting title to the land in dispute. • When the case was called for trial the defendants demurred ore te'ivus to the complaint upon the ground that it does not state facts sufficient to constitute a cause of action. The demurrer was sustained. The plaintiffs excepted and assigned the following errors:

“1. That the court permitted the defendants, who had filed an answer, to demur ore terms to the amended complaint, when the cause was upon the calendar for trial and had been reached and called for trial.
“2. That the court refused to tax the defendants with the cost of the witnesses subpoenaed and in attendance upon the court for the trial of the cause, the same being upon the calendar and having been reached and called for trial upon the pleadings.
“3. That the court sustained the defendant’s demurrer ore terms and ruled that the amended complaint failed to state a cause of action.
“4. That the judgment rendered was erroneous.”

Disposing of the question of procedure in limine, we have repeatedly held that where a complaint states no cause of action such a defect is not waived by answering. The defendant may demur ore tenus, and, furthermore, this Court may take notice ex mero motu of the insufficiency of the complaint in this respect. If the cause of action, as stated by the plaintiff, is inherently bad, why permit him to proceed further in the case, for if he proves everything that he alleges he must eventually fail in the action. Blackmore v. Winders, 144 N. C., 212; Elam v. Barnes, 110 N. C., 73. Our decisions upon this matter are in strict accordance with the very letter and spirit of the law. Revisal, sec. 478.

' The .real question in the case is, whether the feme plaintiff was, in contemplation of the law, prevented by the action or conduct of the defendants, or any one of them, from obtaining grants upon her entfies from the State. It was provided by The Code, sec. 2766, which was in force when the entries of Mrs. Garrison were made, that “All entries of land made in the course of any one year shall, in every event, be paid for on or before the thirty-first day of December, which shall happen in the second year thereafter; and all entries of land not thus paid for shall become null and void, and may be entered by any other person.” The Revisal of 1905, see. 173, makes a different provision and requires that all entries of land shall be paid for within one year from the date of entry, unless a protest be filed to the entry, in which event the payment shall be made within twelve months after final judgment on the protest; and if the payment is not made within'the said time, the entry shall be null and void and the land may be entered by any other person. This case, of course, is governed by the law as contained in The Code. If the land was not subject to entry, any person claiming title to, or an interest in, the same, or any part thereof, was authorized to file a protest with the entry taker against the issuing of a warrant of survey thereon, and the entry taker thereupon certified the entry and protest to the Superior Court, where the issue as to the validity of the entry was tried, but the protest was required to be filed within ten days after the posting of the notice of entry by the entry taker. Code, sec. 2765. It was evidently contemplated by the Legislature that the posting of the notice of entry should be made, not by the enterer, but by one of its officers, namely, the entry taker, and that the protest should be filed within the ten days during which the notice of the entry was posted. This provision of the law we regard as mandatory. The protest must be filed within the time fixed by the statute. It is a condition annexed to the right of protest, and not a statute of limitation. The time for paying the purchase price and taking out a grant had not expired when the protest was filed. It does not appear by any allegation in tbe pleadings whether the entry taker ever posted notice of the plaintiffs’ entries. ' If it was necessary for the plaintiff to have alleged that the notice had not been seasonably given by the entry taker, so that the protest was filed in time and she was thereby, prevented from obtaining her warrant of survey and her grants, her failure to do so would constitute only a defective statement of her cause of action, and the defendants, having answered, instead of demurring, waived any such defect. They eannot avail themselves of the omitted allegation, if it is a defect, by demurring ore tenus, which is equivalent to a motion to dismiss after they have answered. Masten v. Marlow, 65 N. C., 695; Halstead v. Mullen, 93 N. C., 252. We need not now consider the question argued by counsel — whether, in law, the protest delayed action on her part in perfecting her entry and procuring her grants, so as to entitle her to the relief she demands. We will decide that question when the facts of the case are before us. The complaint sufficiently alleges a cause of action, even if it is defectively stated, and is good as against a demurrer ore tenus or motion to dismiss under the circumstances of this case.

The court erred in sustaining the demurrer.

Error.  