The news & observer., 1905-12-14


md filed bonds for the same, a por-
tion of such entries covering the entry
made by McMahan. Everett assign
ID his entries to one ID. Lester, who
paid the purchase money on June
q, 1888, and took grants for said
bonds on November 4th, 1891. The
defendant Gibson and others claim
,he land entered by McMahan by
virtue of conVeyances therefor. The
)la ntiff is the owner of such right
md title as Lester obtained under the
rant issued to him. The defendant
Gibson is in the possession of the
and. The land is located in that
portion of tho State to which the
statute in regard to the Cherokee
'ands applies. Plaintiff demanded
judgment that the defendants be de-
Jared to hold the legal title to sad
land in trust. and that they be de-
creed to convey the same to him. De-
PENDANT, among other defenses,
pleaded the statute Of limitations,
lpon which they relied on the trial
md further demurred Gre telus to the
complaint, for that it failed to state
IF act on. The court sustained the
demurrer and dismissed the action
md plaintiff appealed
1. Under Chapter II of the Code,
relative to entry of Cherokee lands,
thc prCvis onS of the statutes require
ng the fiji ng of bonds, payment in
inStallments and comforting the right
on the State to sue for the purchase
price in case Of non-payment at ma
.urity establish, between the Sta,e
and the entryman, the relation OF
vendor and vendec through the
medium OF q contract of purchase
.,.:t 1, nj itx- o,rt
IF the purchaser.
2. Section 2766 applying to other
public lands and working forfeiture
IF rights after entry in case the pur
-hase price is not paid within fo'ir
years confeTs upon tho entry mal
only the privilege of a preferred bid
Ter with an option for purchase
within certain limited tine.
s. An enterer Of Cherokee lands is
liked with the duty of paying the
purchase price and calling for his
grant within a reasonable time, by
analogy to contracts between individ-
Ials, ten years, or he is presumed to
have abandoncf his claim, which
cannot be said to lapse at the mere
maturity of his bonds for purchase
4. Entry of land, followed by sur
vey. is constructive notice of claim 10
rights in the land.
5. An action to declare the holder
Of a grant a trustee in equity of the
.egal title for the benefit of the plain
ift is barred by the ten year statute,
running from the registration of his
grant-McAdcn vs.. Palmer at This
term
Mary w. Cooper. Adm'x. VS.. NORTH
Carolina Railroad Company. Appel
liant froo; CaSwcil. New Trial.
Tn nn tria Of n, action fl.1 NJ
ages for the alleged negligent killing
If the plaintiff inteStatc at a railroad
crossing the court, after properly
charging the jury upon the duties re-
5peCuWely OF the railroad company to
give notice and warning of the APP
proach of its trains to a crossing and
of persons TO look and listen for the
of trains before attempting
60 cross the track, further charged as
follows:
But when the train does not give
timely warning of it's coming. 1t is
not contributory negligence in "a
eraveler to go upon the track without
listening ana looking for the approach
of the train. if he exercises that Dru-
dence and care which prudent man
would exercise under the circumstan-
ceS and the injury resulting is attrib-
.utable to the negligence of the rail-
road company in failing to give the
signals, for such failure would be
deemed the prOXimate cause of the
injury, if the jury should find from
the evidence that with proper warning
the traveller would not have attempt
ed to cross Therefore, if from the
evidence you find that the railroad
company failed TO give timely warm
ing of its approach to the crossing,
by sounding the whistle or ringing the
bell, and also find that the plaintiff S
inteState went uDon the crossing with
out looking and listening. MS failure
to look and listen under such cir
cumstanceS would not be the DroXi-
mate cause of his death if, with the
proper warning he would not have
gone upon the track, and if from the
evidence you find such to be the
facts, you will answer the second is
sue no, that is that the plaintiffs s
ntestate was not guilty of contribu-
tory negligence:"
Held; L. Such charge by fair intend
ment, can only mean that, though
a traveller on approaching Il crossing
is required to look and listen. the OBJ
legation is not upon him if he fails
to do SO even though by looking he
might have seen the approaching
train in time to have avoided injury.
tically eliminate the defense of con-
tributory negligence and is error.
2 The plaintiffs inventory of pcr-
sonal property of the intestate and ne:
annual account as administrators Of
fered by defendant for the purpose
IF showing the intestate's capacity TO
earn and acctmulate money were
properly excluded as irrelevant. If thc
estate shown should be large there are
so many ways in which it might have
been derived independently of the
,arning power of the deceased. and.
if small, there are SO many and vari-
Gus ways in which it might be ac-
counted for consistently with the high
est capacity to earn and accumulate
that the admission of such papers
would tend to confuse rather than aid
the investigation and open an ctcn-
sivex field foreign to the issue.
\. Iii. Sheriff.. Appellant, vs.. South
ern Railway Company; From Ca
tawba New Tricl
Civil action for personal injuries
aused by alleged negligence of de-
:endant. heard before Council j., and
a jury, at May term, 1905. of Catawba
Superior Court, on the ordinary issues
rhe plaintiff was engaged in superin-
lending tho construction of q union
1epot at Helena. Ga. for tho defend
mt and Seaboar6 Air Line Company
whose lines crossed at right angles