
    Porter vs. Gordon.
    The law favours the ripening occupant claims into perfect rights.
    The withdrawal of a warrant from land by the person directly interested, leaves the land vacant, and subject to appropriation or occupancy.
    A verbal lease for six years is void under the statute of frauds, and cannot be construed a lease from year to year.
    The act of 1823, ch. 49, sec. 3, authorizes the division of land between two persons who occupy the same land, and the division will be made pursuant to the 4th section of that act.
    In July 1788, a grant issued to John Cocke for 5000 acres, in Maury county. On the 1st August 1809, a grant issued to Hunt and Herndon for 3000 acres, in the same pounty. In September 1811, commissioners divided the 3000 acres between Etunt and Herndon, assigning the south end to Hunt.
    The Cocke grant being the older and better title, interfered with the Herndon grant to the amount of 1181 acres. Gordon had purchased from Cocke, and from Herndon 164 acres of the interference. He had been in possession of his purchase from Cocke more than seven years, with a regular chain of title from him. Being thus circumstanced, he first obtained a certificate warrant of 164 acres, by reason of the interference of the inferior Hunt title with his superior title under Cocke. He then, at the request of Herndon, had a certificate made of the interference between the Cocke and the Hern-don division. The surveyor at the same time made a certificate of the interference between the Hunt division and the Cocke grant, and Gordon himself laid both these certificates before the commissioners, and warrants issued on each of them for 590 acres; one in the name of Herndon, the other of Hunt, to whose interest Gordon has an equitable title. This 590 acres so certified, and so laid before the commissioners by Gordon, covered the same 164 acres for which Gordon bad already received a warrant, because of the interference of an inferior with his superior title.
    Gordon having doubly stripped this 164 acres, occasioning certificates to issue under both titles, afterwards leased the same 164 acres to Jonathan George, by parol, for six years, and George took possession of the land and improved it. On the 15th of April 1824, Gordon procured the affidavits of Herndon and Dr. Brown, stating that said land was vacant, and on the 15th of the same month entered said land as an occupant. In the month of May following, Jonathan George, the actual settler, obtained the affidavits of Medlin and another, and entered said 164 acres of land, and had it surveyed under the occupant law, and assigned his certificate of survey to Isaac N. Porter for a valuable consideration. Porter filed a caveat in Maury county court, to prevent Gordon from obtaining a grant. Gordon also filed a caveat against Porter’s claim, with which nothing further seems to have been done, the trial being confined wholly to the caveat of Porter against Gordon. Gordon was in possession of part of said 164 acres, and so was George. The circuit judge decided that the land should be equally divided between the claimants. From this decision, Gordon appealed in error to this court.
    
      R. C. Foster, for plaintiff in error.
    
      D. Craighead and J. P. Clark, for defendant in error.
   Peck, J.

delivered the opinion of the court.

Notwithstanding the magnitude of the record in this case, and number of facts submitted to, and found by the jury, the governing principles necessary to its determination are few.

The ripening of occupancies into perfect rights has been constantly favoured by the legislature. The acts of 1806, ch. 2, sec. 2: 1807, ch. 2, sec. 36: 1809, ch. 12, sec. 2: 1807, ch. 103, sec. 1: 1820, ch. 15: Oct. session, same year, ch. 27, sec. 2: 1823, ch. 26, sec. 5: same year, ch. 35, sec. 4:1819, ch. 1, sec. 9:1823, ch.49: sec. 3, are all of them legislative provisions on this subject, providing for almost every conceivable case of occupancy.

After the withdrawal of the warrant from the land in controversy, the same became vacant; that effect upon the title having been produced by the act of those directly interested in preserving it, the court will not be astute in its endeavours to fix George in, as holding for any one but himself; his tenancy at best, being held by a verbal lease, could last but one year. The contract for a lease being for a longer period, was void by the statute of frauds, unless by a fiction we place him in, contrary to the terms of the contract from year to year.

This we will not do, because the justice of the case does not require it. Had the question been submitted to the jury, whether or not the warrant had been drawn off the land in fraud of the state, and the jury had found the fact to be that it had been so done, which is probable, all those participating in the fraud would have been without relief before this court, and the caveals dismissed.

The finding on the twenty-second issue submitted, shows Gordon in actual possession of twenty acres of the land. George had cleared and occupied a part also.

Both have entered the whole as occupants, and are covered by the words and spirit of the act of 1823, ch. 49, sec. 3. The provisions of this act govern the case, and brings us to the same conclusion that must have directed the circuit court in making the division of the land between these parties, as provided by section 4 of the act. We are the more reconciled to this result, because the effect of it will be to make men holding by the best title, content to rest upon it in future. Ancient rights ought to be esteemed as preferable to those made to arise out of caprice or experiment.

Catron, Ch. J.

In this cause I aeree in the result of , .. ¶ i • .... T1 t»ii the opinion delivered by Judge Jreck: but,

1. I deem it unnecessary to decide whether the raising of the warrant from the 160 acres of land affected the title of Gordon. If he had no agency in raising the warrant, and committing a fraud on the state, I imagine he would not be prejudiced by the acts of his vendors. The parties have here litigated their occupant entries, and nothing more, treating the land as vacant.

2. I deem it unnecessary to determine whether George could controvert the title of Gordon until he surrendered the possession. The case of Smith T. vs. Wilson, decided by this court in 1825, Haywood and Peck and Williams concurring, might be conflicted with, to say George could disavow Gordon as his landlord. The court below treated George’s possession as holding no relation to Gordon, and adjudged the land to them jointly, because both were in actual possession at the passage of the act of 1823. George may have held possession for Gordon, yet Gordon has not complained, and assigns no errors in this court, and therefore the judgment must be aíürmed, although it might be prejudical to Gordon.

Judgment affirmed .  