
    *Carter v. Ramey.
    July Term, 1859,
    Lewisburg.
    
      Caveats- Case at Bar. — The entry and survey of boll) the caveator and caveatee being upon land which had been previously granted by the commonwealth, and which had never been forfeited, the commonwealth having no interest in the land which could he vested in the caveator, he can have no right to it : and therefore cannot maintain a caveat : though the caveatee may have no better right.
    This was a case of caveat in the Circuit court of Russell county, filed by Dale Carter against William Ramey. On the 1st of May 1857 Moses Ramey made an entry for two hundred and forty-eight acres of land on the Pound fork of Sandy river in the county of Russell; which was transferred to William Ramey; and on the 11th of May a survey of the land was made. The land included in this entry and survey was situated within the boundaries of a tract of four thousand acres, patented to Richard Smith by grant from the state of Virginia, dated the 21st of February 1788, which had never been forfeited to the commonwealth.
    The caveator Carter claimed under an entry for seven thousand five hundred acres made by Charles A. Smith; which entry was assigned to Carter, and covered the land embraced in the entry of Ramey. The grounds on which Carter contested Ramey’s right to a patent, were, that the survey hud not been returned to the register’s office within one year after making the survey: and because the entry was not sufficiently precise and definite. But these objections were not considered by the court.
    When the case came on for trial, the parties agreed the facts and submitted it to the court: And the court ^dismissed the caveat. Whereupon Carter applied to this court for a supersedeas; which was awarded.
    B. R. Johnston, for the appellant.
    Fry, for the appellee.
    
      
      Caveat - What It Must State. — The caveator must state in his caveat the grounds on which he claims the better right to the land in controversy, and he will not be permitted to abandon on the trial the right which he has set out in his caveat, as that under which he claims, and prove a dilferent right. Trotter v. Newton, 30 Gratt. 588. citing the principal case ; Walton v. Hale, 9 Gratt. 194 ; Harper v. Baugh, 9 Gratt. 508.
      See, in accord, Clements v. Kyles, 13 Gratt. 468. and foot-note.
      
      Same-hiffinmty of Caveatee’s Title. — The caveator cannot rely on any infirmity in the title of the caveatee, hut can only succeed upon showing a Lel-le r legal or equitable title in himself. Trotter v. Newton. 30 Gratt. 593, citing tile principal case.
      See also, in accord. Field v. Culbreath. 2 Call 547 ; Staples v. Webster, 5 Call 274 : Walton v. Hale, 9 Gratt. 194: Harper v. Baugh, 9 Gratt. 508.
    
   RE®, J.

In every caveat founded on the alleged better right of the caveator to the land in controversy, the first enquiry is as to his title or interest in the subject. He cannot recover upon the mere infirmity of the title of the caveatee, for however defective that may be, no one has a right to interpose for the purpose of preventing him from carrying his entry into grant unless he have a better right, legal or equitable in himself, except only in the class of cases provided for by i 24 and 29 of the Code (p. 483), authorizing any person in case of violation of the provisions of previous .sections referred to, by a locator, to enter a caveat against the emanation of a grant. Field v. Culbreath, 2 Call 547; Currie v. Martin, 3 Call 28; Walton v. Hale, 9 Gratt. 194; Harper, &c. v. Baugh, &c., Ibid. 508. And the same rule prevails in Kentucky as shown by repeated adjudications under their statute which was taken from our act of 1779, and is believed to be in all respects substantially the same. Patterson’s dev. v. Bradford, Hardin’s R. 101; Hendricks v. Bell, 1 Bibb’s R. 138; Justices of Allen County v. Allen, 2 A. K. Marsh. R. 30; Whitley v. Shirley, 3 Ibid. 131. In truth the rule as applied in cases of caveat on the ground of better right, is but another phase of the principle which authorizes a defendant in ejectment, not being himself a trespasser who has wrongfully entered upon the peaceable possession of the plaintiff and ousted him of it (Tapscott v. Cobbs, &c., 11 Gratt. 172), to defeat the action by showing an outstanding better title in another; Haldane v. Harvey, 4 Burr. R. 2484; Crisp v. Barber, 2 T. R. 749; Martin v. Strachan, *5 T. R. 107, 110, note (a) ; Lyons v. Brown, Gilm. 105, 118; Bull. Nis. Pri. 110; and which even in a writ of right, when that action was in use, where the demandant relied upon a constructive seizin, permitted the tenant to disprove such seizin and prevent a recovery by showing an elder grant or a better title in another. Green v. Watkins, 7 Wheat. R. 27; Bolling v. Mayor, &c., of Petersburg, 3 Rand. 563.

In this case it is agreed that the land embraced by the caveatee’s survey lies wholly within the boundaries of a tract of four thousand acres granted to one Richard Smith by patent bearing date 21st of February 1788, and that this four thousand acre tract had never been forfeited to the commonwealth under her revenue laws or otherwise. .Thus it was not liable to entry, either as waste and unappropriated, or as forfeited land, and the entry of the caveator so far as it embraced the land covered by the survey of the caveatee, being wholly unauthorized by .law, was simply void and could confer no equity whatever. And a grant founded upon such void entry would pass nothing, there being indeed nothing in the commonwealth upon which the grant could operate. Whittington v. Christian, 2 Rand. 353; Hannon, &c. v. Hannah, 9 Gratt. 146; Levasser v. Washburn, 11 Gratt. 572; Atkins, &c. v. Lewis, &c., 14 Gratt. 30. Having therefore no equity, the caveator fails to show the better right upon which only can he maintain his caveat; and although the caveatee’s entry may be equally invalid and give him no better equity, jret in equali jure potior est conditio defend-entis. „

Another objection has been made to the caveator’s case involving the question whether an assignment of an entry made under our act providing the mode of acquiring title to waste and unappropriated, and since the Code of 1849, to forfeited, lands, is valid so as to authorize the assignee to maintain a caveat in his own *uame against another who shall have obtained a survey of the same land, as the caveator in this case claims under an assignment from one Smith by whom the entry was made. As however the first objection must prove fatal to the caveator’s case, I deem it unnecessary at this time to express any opinion upon this question.

I think the caveat was properly dismissed, and am of opinion to affirm the judgment.

The other judges concurred in the opinion ©f Gee, J.

Judgment affirmed.  