
    Irby vs. M’Kissack.
    Where the owner of a warrant for 500 acres of land, made an entry, for 160 acres, founded theveon, which he sold: It was held, that his subsequent fraud, in making entries and procuring grants to issue, founded on the same warrant, but for more than the balance he was entitled to enter, could not prejudice the purchaser, who had acquired his title to the 160 acre entry, before such fraud was perpetrated: Held, also, that such purchase could in equity divest the title out of defendant, who had eubsequently entered a part of the land covered by the 160 acres, and obtained a grant therefor from the state.
    A decree, obtained by the purchaser against the entsrer, is evidence that he was a bona fide purchaser, against a party who entered the land afterwards; and this, whether the decree were obtained by service of process upon the defendant, or by proceeding against him as a non resident.
    This was a bill filed by Irby against M’Kissack, to divest him of the title to one hundred and twenty-seven acres of land. The following are the facts. Elisha B. Mayfield was the owner of a certificate warrant, No. 1803-, for 500 acres. Before he appropriated any part of the warrant, he assigned to A. M’Kissack and Samuel Y. Anderson, three hundred and twenty acres ol his warrant; and afterwards, on the 14th of May, 1821, he made an entry in the office of the surveyor for the 7th district, for one hundred and sixty acres, by virtue of part of said warrant. On the 10th of May, 1823, Mayfield .executed a bond to complainant, Irby, conditioned to make him a title to the one hundred and sixty acres'. Irby filed a bill against Mayfield, in the circuit court of Giles county, to compel a specific performance of his bond, and praying a divestiture of Mayfield’s title. Mayfield, at the time, was a non-resident, and was regularly proceeded against as such; and on the final hearing of the cause, the court decreed that all Mayfield’s title to the one hundred and sixty acres he divested out of him, and vested in the complainant.
    After the entry of one hundred and sixty acres was made, Mayfield made three other entries; to wit: on the 27th September, 1821; one for fifty acres, and two for twenty-five acres each. Upon these entries grants were issued on the 23d March, 1827. On the 28th January, M’Kissack and Mayfield joined in an assignment of ninety-four acres; one half of which, to wit, forty-seven acres, was the proportion each one assigned. From this statement it appears, that Mayfield, by his various transfers and entries made by him by virtue of his warrant, disposed of six hundred and twenty-seven acres of land; whereas, he was only entitled to 500 acres by his warrant. No grant ever issued upon the one hundred and sixty acre entry; and the register refused to issue a grant for more than thirty-three acres, of the one hundred and sixty acre entry —that being the number of acres left of the five hun-hundred acre warrant, ungranted — thus leaving one hundred and twenty-seven acres, of the 160 acres, not granted. This 127 acres, the defendant, on the 25th March, 1831, entered.
    
      
      J. W. Combs, for complainant.
    
      George S. Yerger, for defendant.
   Green, J.

delivered the opinion of the court.

This bill is brought to divest the title to the one hun- - dred and twenty-seven acres of land, mentioned in the pleadings, out of the defendant, and vest it in the complainant.

It is very clear, that were Mayfield seeking a recovery of this land from the defendant, he would not he heard. He has already obtained grants for the full quantity of land to which he was entitled, by virtue of his warrant. The attempt to appropriate a larger number of acres, by virtue of that warrant, than the quantity it called for, was most fraudulent. Although, therefore, his other entries are younger than the one for one hundred and sixty acres, yet as grants have issued upon them, by which, together with the thirty-three acres of' the one hundred and sixty, he acquired as much land as he was entitled to have, he could not, in conscience, ask for more.

But the case before us differs widely from the one which would have been presented, had Mayfield continued the owner of the one hundred and sixty acres.

On the 10th day of May, 1823, the one hundred and sixty acres was sold to the complainant, and Mayfield’s bond for a title was executed. At that time he had a clear and undisputed right to the one hundred and sixty acres, and was entitled to have a grant for the same. His subsequent fraud, in procuring grants to issue upon younger entries, whereby his warrant was exhausted, could not prejudice a bona fide purchaser for a valuable consideration, who had acquired his title before it was affected by such fraud.

But it is alleged, that the complainant is a mere volunteer, and is in no better situation than Mayfield would have been, had he brought the suit; that the decree by which Mayfield’s title was vested in'the complainant, is no evidence between these parties, that the complainant paid to Mayfield any consideration for the land; and, therefore, he must suffer all the consequences of Mayfield’s fraud.

The record of the suit between the complainant and Mayfield, is proper evidence in this cause, of the facts which it proves. It shows a decree in favor of the complainant, founded upon a bo'nd executed to him by May-fiield, acknowledging the receipt^Of $980 dollars for this land, and conditioned to make complainant a title for the same. Surely this will be regarded as prima facie evidence that the consideration was paid. It is not conclusive evidence of that fact; but it is enough to throw the burthen of proof upon those who dispute it. Starkie, 4th part, 1284. Let the decree be affirmed.

Decree affirmed.  