
    HIGHLAND COUNTY,
    JUNE TERM, 1833.
    JUDGES-COLLETT AND WRIGHT.
    SAUM v. LATHAM.
    Yirginia military lands — excess—withdrawal of entry — trustee for holder of first equity.
    Where lands are entered on a Yirginia warrant in parcels, and it appeár 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 Yirginia 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 entries 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, 310] *thatas there was no minute on the books of the surveyor of the Virginia military lands, that the first entry was withdrawn; he had a legal right to pursue the course he did.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 seemto 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.

l3P“This cause was argued and submitted in Highland, but was taken under advisement to Montgomery, and the decision given there and certified back.  