
    Frazer’s lessee vs. Evans.
    When there is a dispute between A and B,fthe owners of granted land, as to who shall have the vacant lands adjoining their tracts, when both could enter the whole, and the deputy surveyor and two arbitrators, under the 6th section of the act of 1827, ch. 29, gave the whole to B, which decision the principal surveyor disregarded, and, with the aid of two others divided the land between the claimants: Held, that by the act of 1827, ch. 29, a division was necessary, and that the principal surveyor could disregard the decision made by his deputy, the same being contrary to law, and make a division of the land.
    In the case of conflicting entries, under the 5th section of the act of 1827, ch. 29, the award of the surveyor and arbitrators is conclusive of the parties’ rights of entry, unless there be fraud, and this cannot be en-quired into in an action of ejectment.
    The conflicting rights of preference to enter the same lands, are not embraced by the 6th and 8th sections of the act of 1827, ch. 29; they are embraced by the 6th section of the act only. >
    This is a case agreed, transferred from the Madison circuit court to this court. Frazer and Evans resided on adjoining tracts of granted land. Evans’ tract contained eighty-four acres, andFrazer’s fifty-three acres. Adjoining them lay a piece of vacant land of ninety acres, and they both claimed a preference of entry by virtue of the occupant law of 1827; Evans for the whole, and Frazer for forty-six and three-fourth acres. To this effect they made their preference entries in the surveyor’s office, and on the plan. Greer, a deputy surveyor, was called upon to survey the tracts, and to settle the disputed right to enter. He chose two persons and they a third, pursuant to the 6th section of the act of 1827, and they awarded the whole of the land to Evans, and Greer so made the survey, and returned it. But John Purdy, the principal surveyor, rejected it, and appointed two other persons, and they a third, who awarded twenty-three and a fourth acres of the land to Frazer, and sixty-six and three-fourth acres to Evans, and the lands were entered by virtue of-warrants, and granted accordingly. Evans was in possession of Frazer’s twenty-three and a fourth acres, and Frazer sued hina in ejectment.
    
      A. Huntsman, for the plaintiff,
    contended, 1st, that the plaintiff has the only legal title to the premises, and must prevail at law. See 2 Ten. Rep, 36-7-8, 47,153,155, 156: Tay. Rep. 207: 6 J. L. Die. 316.
    2. Lands must pass by deed, grant or entry in this country. 2 Hay. 11, 103-4: 1 Ten. Rep. 289-90: Esp. 484: 2 Black. 104: Bui. 2-51.
    3. An equitable title, if they even had one, which is not admitted, cannot be read to defeat the plaintiff’s legal title. Bul. 110: Taylor, 309: 2 Hay. 103-4.
    4. Any further provision by the legislature of Tennessee, when there is no appropriation of a warrant, other than to keep peace amongst our own citizens in relation to their boundaries, is perhaps questionable under the compact, and more especially the granting of preferences by virtue of small grants or entries instead of bona fide occupancy.
    5. The lands that were adjoining the two small grants of plaintiff and defendant, were equitably divided under the 6th section of the act of 1827, ch. 29, and grants have issued to each for his portion accordingly.
    
      A. L. Martin, for defendant,
    argued, 1st, That his claim of reservation should have been sustained to the exclusion of the plaintiff’s claim, agreeable to the statutes of the State in force. Act of 1825, ch. 36, sec. 16: The act of 1826, ch. 7, does not interfere with such preferences: Act of 1829, ch. 29, sections 4, 7, 8, 9.
    2. That the decision by the first commissioners summoned to decide between them, was conclusive and could not be set aside by the surveyor upon the mere ground of difference of opinion; their appointment, attendance, &c. having been strictly regular. Act of 1827, ch. 29, sec. 6.
    
      3. The failure of the deputy surveyor to recollect or state whether he summoned the three or two, who summoned the third, can make no difference in the case, 1st, because the act in that part is merely directory, and the law will presume he did his duty; and, 2d, it will be evident to the court that he appointed them as required by law, having had the law before him at the time.
    4. The plaintiff’s grant is void, and cannot be read in evidence in this case. Act of 1825, ch. 39: 1827, ch. 29, sections 5 and 8: 1829, ch. 22, sec. 13.
   Catron, Ch. J.

delivered the opinion of the court.

Evans resists this action on the ground that Frazer’s entry and grant are void, as against his preference right, by force of the 5th section of the act of 1827. Either of these two persons had a right to enter the whole land appropriated by both; a division between them was required by law; to give Evans all and Frazer none, was contrary to the words and meaning of the statute, and the principal surveyor properly disregarded what had been done by his deputy and the arbitrators he appointed. Frazer’s entry and grant are valid, and he must prevail.

We apprehend that in cases of conflicting claims contemplated by the 5th section of the occupant law, the award of the three arbitrators and the surveyor is conclusive of the parties’ respective rights of entry, unless there be fraud, and that this cannot be enquired into in an action of ejectment. When the proper affidavits have been made, and an occupant entry has been grounded thereon, then the land is by law withholden from the general enterer; the evidence of preference is a matter of record appearing on the surveyor’s books, and on the general plan, whereby the invalidity of the general enterer’s entry and grant may be ascertained and resisted, because void, for want of the power in the surveyor to receive that entry and make the survey. But the case of conflicting rights of preference to enter the same land are not embraced by the 5th and 8th sections of the act of 1827 no penalty is imposed on the surveyor for permitting either claimant to enter the land after a first entry by his adversary, in which case the 6th section prescribes the surveyor’s duty. Judgment in the case agreed will be entered for the plaintiff, with costs.

Judgment for plaintiff.  