
    Rhodes vs. Perkins’ Lessee.
    
    ^le survey °f an el>try and return thereof, after the expiration of twelve months, but before a subsequent entry is made, is good, and will hold the land in preference to such subsequent entry.
    On the 14th December, 1816, the plaintiff below entered the land in controversy, in the name of the heirs of Richard Burke, which entry was surveyed 3d August, 1818, and the survey returned 12th October, 1818.
    On the 6th April, 1824, more than five years after the return of the survey, the defendant, Rhodes, entered fifty acres of the land under the 12 1-2 cent law. On the 15th February, 1825, he entered fifty acres more of said land, and obtained a grant in 1S26.
    The plaintiff obtained a grant in January, 1830, which was issued by virtue of a private act of the Legislature, passed in 1829.
    The defendant below insists, that as the plaintiff’s entry was not surveyed within twelve months after it was made, that the entry was void, under the act of 1815, ch. 174, sec. 3. The court charged the jury that if the plaintiff’s survey was returned before the defendant’s entry, although such survey was not made within twelve months, it would not he void, and the State might well grant the land to the plaintiff.
    
      D. Craighead, for defendant.
   Peck, J.

delivered the opinion of the court.

There is no error perceivable in this record.

The act does not declare entries void, if a survey he not made in twelve months: though if a subsequent en-terer had come in after the twelve months had expired, and before the first entry had been surveyed and returned, then the question would have arisen, whether the first entry should be lost to the enterer. Here, however, the survey was made, and evidence thereby afforded that the entry was not abandoned. The first enterer was the first purchaser from the State, and we will not suffer this purchase to be defeated by construction. The second enterer saw the survey of the first entry returned, and he should have staid his hand.

Let the judgment be affirmed.

Judgment affirmed.  