
    *Hagan &c. v. Wardens.
    July Term, 1846,
    Lewisburg.
    (Absent Brooke, J.)
    i. Equity Jurisdiction — Patents.—A Court of Equity has j urisdiction to set aside a patent obtained with knowledge of a prior entry.
    2. Same — Same—Parties.—But the Court cannot proceed to decree in such case on the merits, until the patentee or his representative is before the Court.
    3'. Same — Same—Same—Entry Assigned. — If the person who makes the second entry is the person having knowledge of the first entry, and he assigns his entry to a third person who obtains the patent, the person making the entry as well as the paten-tee, or their representatives, must be made parties to a suit which seeks to set aside the patent.
    In September 1844, Jeremiah, John H. and Benjamin Warden, filed their bill in the Superior Court for the county of Scott, in which they stated:, that Richard Smith, formerly of England, on the 20th day of January 1795, made an entry of a large tract of land then in the county of Russell, now in the county of Scott. That afterwards the land was surveyed by the surveyor of Russell, or one of his deputies, though the survey for some reason now unknown was made much smaller than the entry, and contains only 30,533 acres. That this survey bears date the 22d of September 1798. That on the 17th of May 1799, Smith procured a patent for this land from the Commonwealth ; and that it had been conveyed from the said Smith through various persons to the complainants. That shortly after the emanation of said patent, Smith appointed an agent for this and other tracts of land belonging to him in Virginia, and that said agent took possession thereof soon after his appointment; and such possession had been held by the holders of Smith’s title down to the complainants. They further state, that one Austin Nichols, on the 22d of June 1795, made an entry of 150,000 acres of land in the then county of Russell, now the county of *Scott, which embraces nearly the whole of the entry previously made by Smith. That he had his entry surveyed, and proceeded to obtain a patent for the land embraced therein, which patent bears date prior to that of Smith. They charge that Nichols when he made his entry and obtained his patent had actual notice of the prior entry of Smith; and that notwithstanding that notice he fraudulently procured his patent to be issued.
    They further state, that no actual possession of any part of the land aforesaid now claimed under the said Nichols was ever taken by any person interested therein, until a few years since. That this land, including the land patented to Smith, is now claimed under Nichols’ title by Joseph Hagan and James Culbertson, and other persons claiming by purchase from them. They pray that Hagan and Culbertson, and the persons claiming by purchase from them, specially naming them, may be made parties defendants; that the patent issued to Nichols may be avoided so far as it conflicts with the claim of the complainants under Smith’s patent; that they may be placed in the quiet and undisturbed possession of the land embraced in Smith’s patent; and that the defendants in possession may be compelled to account for the rents and profits they have respectively received.
    Hagan and Culbertson answered the bill and objected to the title of the complainants on various grounds. They deny that Nichols, at the time of making- his entry, had actual notice of the prior equity of Smith to the land in question, or that he had such notice of Smith’s equit3r when his survey was madq. They say that after Nichols had made his entry and survey, he assigned his right to 100,000 acres of the land to Abraham Lagett and Jonathan Drake, who obtained a patent therefor on the 28th of March 1796; and they deny that Lagett and Drake had any actual notice of the prior entry of Smith; and being innocent purchasers, without notice of fraud, they and those claiming under *them should be protected against the claim of Smith, who they insist had been guilty of gross negligence in carrying his entry into grant. They then proceed to set out their own title under Lagett and Drake.
    In the progress of the cause a supplemental bill wras filed, stating objections to the title of the defendants claiming under Nichols’ patent; and the plaintiffs refer to an entry made by Nichols, and dated the 4th of May 1795, embracing the land claimed by the plaintiffs, as shewing that at the time that entry was made Nichols was informed of Smith’s previous entry. The calls of this entry are precisely the same with that of Smith’s, beginning at the same point, calling for the same boundaries, and embracing the same lands.
    The cause came on to be heard in September 1844, when the Court held that at the time Nichols made his enteja conflicting with that of Smith, he had both constructive and actual notice of Smith’s prior entry ; and that the patent to Lagett and Drake, as his assignees, was fraudulently obtained. It was therefore decreed that Hagan and Culbertson should, by deed of release, convey to the complainants all the title vested in them to the land in controversy, bur the grant to Lagett and Drake, and the several conveyances under which they claim, and that they should deliver possession of the same to the complainants, so far as they have not parted with the same to others. And a similar decree was made as to those defendants who claimed and held by purchase from Hagan and Culbertson. From this decree Hagan and Culbertson applied to this Court for an appeal, which was allowed.
    The case was most elaborately argued upon the merits, as well as on the question of jurisdiction, by the Attorney General, for the appellants, and Patton and Logan, for the appellees.
    
      
      See monographic note on “Jurisdiction” appended 'to Phippen v. Durham, 8 Gratt. 457.
    
   ^BALDWIN, J.,

delivered the opinion of the Court.

It appears to the Court that the entry of Nichols of the 4th of May 1795, in its calls, follows so closely and remarkably those of the prior entry of Smith of the 20th of January 1795, that it is impossible the location of Nichols, upon which the patent to Lagett and Drake is founded, could have been made without a knowledge at the time of the prior location of Smith. The Court is therefore of opinion that the Circuit Court had equitable jurisdiction, on the ground of fraud in the procurement of said patent, to hear and decide the merits of the cause; but that it could not do so with propriety without conventing the said Nichols and Lagett and Drake, or their representatives, they being necessary parties; and therefore that the said Circuit Court, instead of proceeding when it did to hear and determine the merits of the cause, ought to have directed the complainants to amend their bills, and bring the said Nichols and Lagett and Drake before the Court by the proper proceedings. It is therefore adjudged, ordered and decreed that the said decree of the Circuit Court be reversed and annulled; and that the appellants recover against the ap-pellees their costs by them expended in the prosecution of this appeal. And the cause is remanded to the said Circuit Court to be further proceeded in according to the principles of the foregoing opinion and decree.  