
    SAUM v. LATHAM.
    Virginia military lands — excess—withdrawal of entry — trustee for holder of first equity.
    Where lands ave entered on a Virginia warrant in parcels, and it appear that more land is entered than the warrant calls for, and there is no minute on the surveyor’s books of the withdrawal of the first entry, that will not confer upon a stranger to the entry the right to cause a patent to issue for the first entry, and then treat the latter entry as vacant; and if he do so, and get a patent to himself, it will enure to the benefit of those holding the first entry, he being a mere trustee of the title for such person.
    In such case, an injunction will be decreed against a proceeding in ejectment, and for the title.
    In Chancery. Col. Hardin had entered land upon a Virginia warrant, on the Little Miami, and afterwards, in satisfaction of the remainder of his warrant, entered the land in dispute. The quantity of land in the two entriés in the name of Hardin, exceeded that called for in his warrant. Latham discovering this, procured from the land office, without authority, a patent to issue in the name of Hardin, for the land first entered on his warrant, and then entered in his own name on a warrant he held, the land in dispute, last entered on Hardin’s warrant, obtained a patent for it, and brought ejectment, to turn Saum out of possession, who claimed under Hardin. The bill prays a perpetual injunction against the ejectment, and that Latham may be decreed to hold the land embraced in the patent to him, in trust for Saum, and to release. Latham claimed, that as there was no minute on the books of the surveyor of the Virginia military lands, that the first entry was withdrawn; he had a legal right to pursue the course he did.
    
      R. Collins, for the complainant.
    
      Sill and T. Scott, contra.
   Collett, C. J.

The entry of Latham was void, because the lands entered had been appropriated under the act of congress, of 1807, and were not subject to Latham’s entry, even if not Hardin’s. His proceedings cannot avail him in this Court at any rate, for Hardin’s is the oldest equity, and the title having been procured with notice, enures to the benefit of whoever is entitled under his entry. Hardin’s right is in the complainant. The conduct of the defendant appears to us an unwarrantable effort to appropriate another man’s land to himself. The omission to make the entry of withdrawal, does not seem to be in controversy. If the entry was in fact withdrawn, that fact may be shown; and if so, the omission of the surveyor to minute, would not affect any right. There is nothing in the case, to justify the defendant’s proceedings. We shall decree that he be enjoined from further prosecuting his ejectment to oust the defendant from possession, or for his costs; that his patent enures to the benefit of the holders of Hardin’s entry, and that he pay the costs of this suit.

This cause was argued and submitted in Highland, but was taken under advisement to Montgomery, and the decision given there and certified back.  