
    TALBOT vs. CALLAWAY.
    
      November 8th.
    
    The plaintiff in ejedtment cannot recover if the patent under which he claims is of the fame date with chat held under by the uefea-
    TALBOT brought an ejectment in the general com t against Callaway. On the trial a case was agreed for the decision of the court as to the law thereon, which stated the following facts :
    A certificate for a pre-emption of 400 acres of land was granted to Jeremiah Barnett on the 28th December 1779 : by virtue of which a pre-emptiou warrant issued to Samuel M’Geheej as assignee of said Barnett ; who duly made an entry thereon, with the proper surveyor* on the 21st day of October 1780.
    A survey was duly made on this entry on the 4th day of November 1783, and the plat and certificate duly lodged in the register’s office on the 10th day of March 1784.
    A patent duly issued, founded-on these works, to said M’Gehee, dated the 1 st day of June 1785 ; and his title was duly conveyed to the plaintiff in ejectment.
    
    The court of Commissioners, on the 24th day of December 1779, adjudged that Micajah Callaway and James Callaway were entitled severally to settlement rights of 400 aeres, and pre-emption rights of 1000 acres adjoining ; but the said court at the same time ordered that certificates of the said rights should not issue until further order was given ; which further |rder was given after the 28th day of December 1779.
    Micajah,Callaway, by virtue of his certificate* made an entry with the surveyor on the 18th day of Jstiuary 1780; and ón the 26th day of April 1780, Walton, as-signee, &c. of James Callaway, having obtained a preemption warrant, made an entry thereon for 1000 acres with the proper officer.
    The settlement entry of said Micajah, and the preemption entry in the name of said Walton, were surveyed on the 11th day of December 1782,
    The plats and certificates thereof were duly lodged within the register’s office on the 31st day of May 1784.
    
      May 15, 1799.
    
      7he defendant in ejiElment may defend bimjefby flowing that the 'deed under which the plaintiff claims isfraufa-feat.
    
    Patents issued on both on the 1st day of June 1?85 j qnd the title was duly conveyed to the defendant.
    
    The patents under which the defendant claims stand recorded in the register’s office before the patent under which the plaintiff claims.
    It was not the general practice in the register’s office of the state of Virginia to record the patents in regular succession as they were issued, paying regard to the pri-: ority of dates thereof in admitting them to record.
    Neither party by the admission of any fact intended to wave the question whether in ejectment you can ascend higher than the patent.
    The title of both plaintiff and defendant, thus derived, covered the land for which the ejectment was brought.
    The defendant resided on the land in question.
    The general court on this case agreed gave judgment for the defendant.
    Talbot appealed, and at the April term 1805, tha£ judgment was affirmed, A re-consideration was however ordered thé same term ; and now, at this term, the following was the
    
      
      
         In the body of the agreed cafe, It is ftated that M’Geliee’s furvey was, made on the nth December 1784 j and that his deed to Talbot was made on the .day of- — ■■ 1783 : but the copy of the furvey, which is made a part of the agreed cafe, gives the above dace ; and The deed, which is alio made a part of the,cafe, bears date the 1 ithday of November 1803.
    
    
      
       The following table will give a contrafted view of the dates of the feveral afts on which therelpe&ive parents were founded ;
      plaintiff’s.
      Certificates, a$th Dec. 1779,
      Entered with furveyor aift 0&- 1780,
      Surveyed 4th Nov. 178
      Registered 10th March 1784,
      Patented ill June 1785,
      defendant's.
      Adjudged good 2.4th Dec, 1779,
      Iffued after 28th Dec, 1779.
      Settlement j8:h January 1780,
      Pre-emption 26th April «780.
      nth Dec. 1782,
      31ft May 1784.
      ill June 1785.
    
   Opinion or the Court. — This case was decided a^ the last term of this court, on the general principle, that the oldest legal title is necessary to support an eject-, ment; and in the case Quarles vs. Brown (), the principle was recognized and embraced, and in the present case no reason can be discovered to justify a departure from it.-.Judgment affirmed. 
      
      (a) Fall term Pi^. Dec» in-'
      
     
      
       The following cafe, relative to the title which the plaintiff in ejectment muft iupport on the trial, is deemed worthy of a place here, chough out 0/ the tíme embraced by this volume.
      PELL and GIST’S heirs vs. DRAKE.
      DRAKE brought his eje&ment in the Maion quarter teflion court againft Bell and Gift’s heirs. On the trial the plaintiff, ¡11 making out his title, produced a deed from James fiuchannon and Phcebe his wile, dated the firft day of May 1792., which was admitted to record on the 24th day 01 July 1792.
      it was admitted that the defendants were in the actual poflefiiofi of the land in eontroverfy 5 and it was proved that they were put in poli'efiion by the grantor in faid deed, In purfuance of an article of agreement, executed by the laid grantor of the one part, and the laid David Cell and Nathaniel Gift ofthe other part $ which article was produced in court and duly proved by one of 
        the fubfcribing witnefles thereto. The article of agreement bore date the tzi day of Auguft 1794» and was under feal, by which Bucbannon fold the land in queftion, with other trafts, to Bell and Gift, and they covenanted to pay aftipulated price for it.
      
        <{ The defendants chen offered to go into evidence to prove the faid deed fraudulent. The counfel on the part of the plaintiff objected to the defendants* going into fuch evidence 3 and prayed the court not to 1'ufJVrthe defendants to bring forward eyidence to that effect 3 whereupon the court gave it as their opinion that the defendants could not go into evidence to prove the faid deed fraudulent in this fuic at common law, but mull have their redrefs in chancery, as the deed was or public record two year* prior to the time the parties entered into the laid article.”
      To this opinion the defendants filed a bill of exceptions, ftating chefe fa£ts ; and making laid deed and article of agreement part or che bill of exceptions,
      A verdidt and judgment \yas obtained by the plaintiff, from which the defendants appealed
      The Opinion of the Court was as follows: — There is error in the record in this, viz. That the court ot quarter fefiions aloreiatd refilled to receive teftimony to prove the deed in the record mentioned frau4«dent,
      Judgment re ver fed 3 and the cauie remanded^ with directions to the Inferior pourt i( to receive teftimony as to the fraud aiorefeid.”
     