
    Dearing vs. Cate & Shirley.
    The preference of entry under the occupant laws, is a right of value. The land may be worth more than the government demands for it, and the excess of value above that price is the value of the right of entry to which the occupant is entitled, where he had been deprived of this right by*-ühe fraudulent conduct of another.
    
      Trewhitt and Gaut, for the complainant.
    It is assumed that the coipplainant’s right was an incorporeal interest in the land', and inheritable by the act of 1839, ch. 153, sec. 1, and that the’ defendants tortiously converted and disposed of complainant’s right to their own use, profit and gain.
    And the material questiorUis, will a bill lie to recover the value of the occupancy? 1 Story’s Eq. 148-9. A right of way is an incorporeal hereditament, and a court of equity will entertain a bill for an injury done to the same. 1 John. Ch. Rep. 611, Croton Tunipi/ce*t7o. vs Rederand others.
    
    Tithes is an incorporeal hereditament, and a, bill will lie for an account. 1 Mad. Ch. 105-6.
    
      Rents are an incorporeal hereditament, and a bill will He to recover, as well those commenced by 'torts as those by contract. 1 Story 488-9.
    A court of equity will entertain a bill, and give relief to a person who has located a land warrant for another and give the customary amount allowed to locators for locating. Smith and others Brooks’ heirs, 3 Haywood Reports, 248.
    Is not the settling upon the land aird obtaining an act from the state to authorize the settler to enter the land in exclusion of all others, and clearing a field thereon, as much entitled to be paid for, as to go into the forest and mark out a certain boundary and have the same entered in the surveyor’s office ?
    4 Yerg. Rep. 71. A court of equity decreed one-fourth of a tract of land for the locator’s part in locating, which decree was affirmed by the supreme court. See page 81. See book above; and decreed that the locator’s interest would be made a charge upon the land.
    An action of assumpsit will lie to recover the value of an occupant right. 4 Yerg. 1.
    The right of an occupant acquired utlder the laws of Tennessee, is a good consideration for, a-promise. 4 Yerg. 1.
    Jurisdiction having once rightfully attached, it shall be made effectual for every purpose of complete relief. 1 .Story, 82.
    
      Smith and others vs. Brooks’ heirs. The complainant in that case prayed for satisfaction out of the ‘land by partitioning the same, or that the defendants be compelled to pay the value of the locator’s share. (There was no agreement in writing.) Defendants plead the statute of frauds, plea was overruled; compelled defendants to answer, and finally partition of the land decreed.
    
      
      Lyoji, for the defendants.
   Green J.,

delivered the opinion of the court.

This bill is brought for the value of an occupant right of entry of a quarter section of land, in the Ocoee district. The facts are these.. Dearing was entitled to a preference of entry of the land in question, and being absent from home, Shirley, by means of deceptious representations, procured the wife and son of Dearing to assign to him in Dearing’s name the said occupant right; no consideration was paid therefor, and Dearing was gone at the time to Arkansas as the driver of a team in company with the emigrating Indians. Before the time for making occupant entries expired Shirley assigned said right of. occupancy to said Cate upon a contract, that Cate should enter the land and then sell it,- and after retaining the money to be advanced by him in making the entry, the profits were to be divided between Shirley and Cate equally. In pursuance of this contract Cate did enter the land, and has obtained a grant therefor in his own name. Before Cate made said entry, or advanced any money to the state therefor, he was told Dearing would trouble him when he returned home.

The complainant relinquishes his right to have the land decreed to him, and insists only, that he shall have compensation for his preference of entry, which the defendants have obtained without consideration. This was allowed in the chancellor’s decree, deducting the value of the rents which have accrued since Cate obtained a title to the land; during which time it has been occupied by the complainant. We are of opinion the chancellor’s decree is correct.

The preference of entry under the occupant laws, is a valuable right. The lands may be worth much more than the price the government demands; and the excess of value above that price, is the value of the right of entry to which’ the occupant is entitled. The complainant has been deprived of this right by the fraudulent conduct of Shirley; and the defendant Cate was not only sufficiently informed of the manner Shirley obtained this assignment, to put him on inquiry, but he received the assignment from Shirley upon an agreement of partnership in the profits of the land thus fraudulently obtained.

Both these grounds, therefore, prevent Cate from setting up the defence, that he is an innocent purchaser without notice.

Affirm the decree.  