
    Reese vs. Crockett and others.
    
    Where two persons claim the same piece of land, as occupants, afid ■an entry and grant issued to one who had no legal right; the other, having the right, previously applied to enter his occupant claim, which was refused: Held, that he might file a bill in equity, to have the right divested out of the party who illegally obtained a grant, and have it Vested in himself.
    Possession of land before the 1st of May, 1826, is not sufficient to constitute a right of occupancy under the act of 1825, ch. 39, sec. 3,-unless such possession were continued up to the said 1st day of May,-1826.
    A was in possession of land before the 1st of May, 1826. It was agreed between him and B, that B should take 'possession of the place,get a title to the land, and give A, one half: Held, that A had no right or interest which was tho subject of sale; that the contract was nudum pac-turn, and could not be enforced.
    From the bill, answers and proof, it appears that the' complainant purchased an improvement which one Moore had made, on vacant land, in the county of Weakley,-which improvement, he gave to his son-in-law, Atkinson,if he would settle and procure a title for it. Atkinson' commenced building a house, but before it was finished,determined to leave the place, and it was agreed that complainant should settle on the place, and get a title to the land and give Atkinson one half. Whereupon the complainant took possession of the house, and continued in possession until the 1st of May, 1826. Atkinson, after he had left the place, sold his claim to' the defendant, David Crockett, for eighty dollars, who went on the land, constructed a slight shelter of poles, and staid there part-one ^a7» an¿ left the place. All this was before the 1st of.May, 1826. Crockett, nevertheless, proved an occupancy, which he sold to the other defendant, Warren, who purchased certificates, and entered the land by virtue of the act of 1825, ch. 39.
    The complainant also proved an occupancy, purchased certificates, and offered at the same time to enter the land. The surveyor general refused to receive the entry of complainant, but received the one made by Crockett; whereupon, this bill is brought, to have the title which has been acquired by virtue of the entry which was made on Crockett’s occupancy, and the grant which has issued to his assignee, Warren, vested in the complainant.
    
      H. JL. Garrett, for the complainant, insisted,
    I. That by the provisions of the act'of 1825, ch. 39, sec. 3, no person was authorized to make an occupant entry, unless he was in possession on the 1st of May, 1826. A previous possession, which had been abandoned, was not sufficient.
    2. If the above position was correct, then the. contract between Atkinson and complainant was nudum pactum. Atkinson had ho right or interest whatever in the land, and could, consequently, assign none. Smith vs. Ran ■ kin, 4 Yer. Rep. 1
    3. The defendant having no right, by law, to enter and obtain a grant for tire land in dispute, and the complainant, by virtue of the act of 1825, ch. 39, sec. 3, having such right, and the principal surveyor having refused to recieve his entry, it is competent for the complainant to file a bill, and have the right (unlawfully vested in the defendant) vested in himself.
    
      ■Ji- B. Bradford and Huntsman, for defendants.
    1. The principal surveyor being the only person appointed by law to determine upon preference between occupants, and receive the evidences of occupant rights, performed his duty by preferring Crockett’s claim. If he erred in judgment, it could only be corrected by a mandamus, and cannot be the subject of a bill in equity, the remedy being clear at law.
    2. The defendants having a grant, it is not competent for a court of chancery to inquire into the consideration upon which it is founded, and declare it void for any supposed irregularity in the officers of government in issuing the same, when tire grantee has given a full consideration to the government for it. 1 Ten. Rep. 322 — 3.
    3. The complainant, after his purchase of Moore, having caused the same to be assigned in writing to Atkinson, enabled him thereby to sell and transfer by the same description of evidence to Crockett, he is precluded in equity from setting up any subsequent parol agreement to purchase the occupancy for himself.
    4. If I am mistaken in the last point, and a parol contract is binding, then, as he agreed to procure title to the land and divide with Atkinson, Atkinson’s part enures in equity to the benefit of the defendant, Warren, and as it was granted by Warren’s money and means7 the contract cannot be fulfilled but by refunding Warren his money, and taking half the land according to the decision of the chancellor.
   Green J.

delivered the opinion of the court.

The first question to be considered, is, as to the true construction of the occupant law of 1825, ch. 39, sec. 3.

This act confers a right of occupancy, according to the provisions of the act of 1819, ch. 1, and 1820, ch. 27, on every person who may have been bona fide resident occupants at the time the act passed, and also on all who might become such before the first day of May, 1826. It is contended that this act is to be understood literally, and that if at any time after the passage of the act, and before firsi °f May, 1826, a party shall have been in; possession of vacant land, he became thereby entitled' to a right of occupancy, although he might have abandoned the same the next day.

If this be so, the same individual might have entitled’ himself to a right of occupancy every day, between the passage of the act and the 1st of May, 1826; and although he could appropriate but one, yet as no person could tell which he would choose to prove and appropriate, all other persons must be kept in suspense until his selection should: be made. Again: if this construction be true, no man could be sure that he had a good right of occupancy to the place possessed by him; for some other man may have passed a day on his place previously to his getting possession thereof, and, if the argument be sound, would thereby defeat his right.

The mischiefs and absurdities into which this construction would lead, must not be charged upon the legislature. We are to understand the act as contemplating a possession to be commenced before the first of May, and continued up to that time. Although the latter words are not used, yet that is the sense indicated by the sentence, and any other construction would lead to consequences so absurd and mischievous, that we are not to attribute them to legislative intention. The act of 1826, ch. 7, sec. 1, also illustrates the sense of the act under consideration. In that act, the legislature say, “that all persons who may have settled, and were actually residing upon vacant and unappropriated land, south and west of the Congressional reservation line, on or before the 1st day of May, 1826, may have any quantity, not more than two hundred acres,” &c.

From these considerations it is apparent, that to constitute a right of occupancy by virtue of the act of 1825, the party must continue in possession up to the 1st of May, 1826; the possession on that day conferring the right. It is manifest, therefore, that neither Atkinson nor Crockett had any right of occupancy to the land in question, and that, as the complainant was the only person who was in possession on the 1st day of May, 1826, he alone had a right to enter the land as an occupant. The surveyor general ought to have received the entry of Reese, and to have rejected the other; but instead of doing so, he has permitted another, contrary to law, to acquire a title to the land in dispute. As the complainant had the exclusive right to enter the land, and as the improper interference of the defendants have obstructed him in the attainment of his legal right, the aid of a court of chancery is properly sought to deprive the defendants of their legal advantage thus improperly obtained. Thus far, we agree with the chancellor; but we cannot sustain his view of the right which the defendants are supposed to have acquired by virtue of the agreement between Atkinson and the complainant.

When Atkinson quit work on the house, and abandoned the improvement, it was agreed by complainant that he would take possession of the place, get a title to the land and give Atkinson the one half. But what consideration was there for this agreement, by which to make it obligatory on Reese, the complainant? Atkinson had nothing in the place which was the subject of sale. He had acquired no right of occupancy. He had never been in possession of the place, much less had he continued in possession until a right of occupany was acquired. The contract between him and Resse was, therefore, nudum pactum, and could not be enforced by law. Smith vs. Rankin, (4 Yer. Rep. 1).

This being the case, Crockett took no right by virtue of his contract with Atkinson, and consequently, can have no claim to one half the land. The decree must, therefore, be reversed, so far as it directs a division of the land; and a decree must be entered for-the complainant for the whole tract, charging him with the monies which have been expended in acquiring the title; which amount will constitute a lien on the land.

Decree reversed.  