Citation Numbers: 64 S.E. 774, 150 N.C. 723
Judges: WALKER, J.
Filed Date: 5/21/1909
Status: Precedential
Modified Date: 1/13/2023
Defendants appealed.
The plaintiff, J. Q. Barker, entered the land in controversy, on 16 November, 1904, and caused a survey thereof to be made, but did not pay the purchase money to the State until 31 December, 1906, when a grant was issued to him. The defendants, C. F. Denton and J. L. Denton, entered the same land, on 7 December, 1906, and, on 5 January, 1907, the plaintiff, J. Q. Barker, filed a protest against the issuing of a warrant of survey thereon, as allowed by the statute. The court sustained the protest, and, defendants appealed. The question presented for our consideration is, whether the entry of the plaintiff had lapsed when the defendants laid their entry. In other words, whether the plaintiff had until 31 December, 1905, or until 31 December, 1906, to pay the purchase money, and this depends upon the meaning of section 2766 of The Code, which is as follows: "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 (the land) may be entered by any other person." The question was decided against the present contention of the defendants in Harris v. Ewing,
The Court in that case construed the act of 1808, which was substantially like section 2766 of The Code, the only difference being that, by the act of 1808, the purchase money was required to be paid on or before the 15th day of December, while by section 2766 of The Code it is required to be paid on or before the 31st day of December. In other respects the two statutes are identical. In Harris v. Ewing,supra, the Court, by Ruffin, C. J., said: "The act of 1808 (Revisal, ch. 759) enacts, `as the standing law in the future, that entries made in the course of any one year shall be paid for on or before the 15th (725) day of December in the (second) year thereafter.' Upon these words, the period is not to be computed from the day of the entry, so as to make the price payable in the second December that may succeed the making of the entry. If that had been meant, it would have been easy to express it much more explicitly than it is. We think the year of the entry, and not the day, is the epoch from which the computation of the act begins. The 15 of December of the second year after the expiration of the year of entry is the time, as seems almost necessarily *Page 595
inferable from the words `made in the course of any one year,' which make `thereafter' referable to that whole year, and not the particular day of that year. This construction is so obvious that its correctness was taken for granted by this Court in Nunn v. Mulholland,
In the other two cases cited by the defendants, Gilchrist v. Middleton,
Affirmed. *Page 596