
    Levi C. Bullock v. E. W. Tipton et al.
    
    1. Laud Law. Grant. Hiatus betxoeen the expiration of the act of 1850, and the passage of the act of 1851. Abandonment of an entry. If land was entered previous to the expiration of the act of 1850, but no grant issued until after that time, and a third person, during- the hiatus between the 30th of August, 1851, the time the act of 1850 ceased, and the passage of the act of the 13th of November, 1851, entered the same land; but, upon discovering the conflict with the older entry, he abandoned his entry, which, being left in the entry taker’s office, was recorded by the deputy without his knowledge, such subsequent enterer could not hold the land in opposition to the older entry.
    2. Same. Entry. Assignment of. If, upon a promise made prior to the discovery of said conflict, the second enterer of the land assigns his entry to a third person, without consideration, and with a full knowledge of the prior claim, and the abandonment of the second entry, the assignee can have no higher equity than his assignor, and could not, by virtue of such second entry, defeat the title of the older enterer.
    3. Same. Legal title. Valuable consideration. Prior equity. Question ' reserved. If a party procures from the State the legal title to a tract of land, and has paid a valuable consideration therefor, will a Court of Equity take it from him at the instance of one who, with a full knowledge of his previous rights, seeks to come in under an hiatus in the extension law upon an entry made upon a mere nominal consideration ?
    FROM 0BI0ÍT.
    The bill was dismissed by Chancellor Williams, at the July Term, 1857. The complainant appealed.
    SOMERS, for the complainant.
    It is insisted: First. That Tipton, by his failure and neglect to procure a grant upon his entry, No. 95, prior to the 1st of September, 1851, forfeited his right to the land, and that the same was then vacant, and subject to general entry.
    The act of the General Assembly, passed Jnauary 24th, 1850, extends the time for making surveys and obtaining grants, on all entries before that time made in any of the land offices of this State, until the 1st day of September, 1851. The language of the act is general, and includes all entries, without any reference to the law under which they may have been made. Such being the case, the act includes the entry, No. 95, in question, if the legislature had a right to pass it, or, in other words, if it is constitutional. In the case of Williamson and Wife v. Throop and Luna, 11 Hum., 265, it was decided, that, in case two individuals enter the same land, and the younger enterer procures a grant before the expiration of the time allowed for that purpose, and the elder enterer neglects to procure a grant before the expiration of such time, the younger enterer will hold the land, the other having forfeited his right by his neglect. To the same effect is the ease of Sampson v. Taylor, 1 Sneed, 600. The entry of the plaintiff in that case was made on the 1st of September, 1851, the same day upon which “ entry No. 216, in question, was made. But in both these cases grants had been obtained by the younger enterers, and the .law under which the elder ones were made, required that grants should be obtained within a specified time, or the entry should be void, or the land vacant, and subject to appropriation as other lands. In these respects those cases differ from the one under consideration; and it is argued that the law under which entry No. 95 was made, does not contain any such condition, or does not provide that the entries made under it shall be void, or the land covered by them shall be vacant, unless grants are obtained within a certain specified time; and that, therefore, the act of 1850, giving until the 1st of September, 1851, to procure grants upon all entries does not apply to said entry, No. 95; or, it was intended to apply to entries made under the law, by virtue of which said entry, No. 95, was made, it is void for want of constitutional sanction. If this is so, an entry under these laws would be as good a title as a grant, which is surely not law. These acts were passed for the benefit of the citizen; the one under which entry No. 95 was made, passed November 2d, 1847, requires nothing to he paid by the enterer but the fees of office. The State is not divested of the legal title to land simply because it is entered; and it is the duty. of all enterers to perfect their title, so that the land may be subject to taxation; and we insist the State has a right to compel them to do so, or forfeit their entries. This entry, No. 95, was made on the 4th of August, 1849, prior to that time, (viz,) the 25th of January, 1848, the legislature passed an act, giving until the 1st of September, 1849, to perfect title to all lands and entries in the State. We insist that all those acts respecting lands, from 1837 to the present time, are to be construed in pari materia; and that the act giving time until the 1st of September, 1849, to perfect titles, is en-grafted upon, and constitutes a part of the act passed 2d of November, 1847; and that a proper construction of them makes it inoperative upon enterers, to procure grants within that time, or forfeit their entries. And we further insist, that the act of January 24th, 1850, giving further time until the 1st of September, 1851, must be construed in the same way. 3 Sneed, 152.
    That the complainant has a right to have the legal title to the land, wrongfully obtained by Tipton, divested and vested in himself, in virtue of his -entry, No. 218, there can be no doubt. Reese v. Crockett, 8 Yer., 129. This case decides, that where two persons claimed the same land as occupants, and the one having no title, wrongfully procured a grant, the other might file a bill, and have the title illegally obtained by the other, vested in himself. There is no difference in principle between that case and this. Bullock did all within his power to get a grant. He tendered the fee required by law, to the proper officer, within the time allowed by law for perfecting his title. He has been in no default, and has incurred no forfeiture of his rights.
    The act passed January 20, 3850, is in the nature of a statute of limitations, and the effect of it was to revest the entire title to land which had been entered, unless the enterer procured his grant by the time allowed, viz, the 1st of September, 1851.
    COCERAN & Enloe, for the defendants.
    The act of 1823, ch. 35, secs. 9 and 10, (2 IT. & C., p. 104,) limiting the time in which entries should be perfected into grants, has no application to Tipton’s entry.
    The system of land law introduced by the act of 1819, ch. 1, was closed by the act of 1842, ch. 34.
    Up to the date of Tipton’s entry, No. 95, there was no law limiting the time in which entries made under the act of 1842, ch. 34, and the subsequent amendatory acts, should be perfected into grants.
    Tipton’s entry was made under the act of 1847, ch. 20, (Nich. Sup., p. 30,) which requires the feés of the entry taker, surveyor, register, and Secretary of State, all to be paid to the entry taker. (See sec. 1.)
    The act of 1845, ch. 8, secs. 2 and 3, requires the entry taker to procure the grant; and the act of 1847, ch. 20, does not repeal that provision of the act of 1845, ch. 8, but rather confirms it, by the absence of any repealing clause, and more especially by the requirement that all the fees shall be paid to the entry taker.
    Thus, Tipton, by his entry, stood in the attitude of a purchaser for a valuable consideration, and it was the duty of the State to make the title.
    These circumstances repel the idea, that any of the acts limiting the time for the issuance of grants, were intended to apply to this character of entries.
    Any act passed subsequent to the date of Tipton’s entry, could not affect his right.
    His entry was a contract between him and the State, and he had a free-hold estate in the land. No subsequent conditions could be annexed to the contract, nor could he be divested of his free-hold by subsequent legislation, if there be any such intended to apply to the case. Terrell v. Murray, 2 Yer., 386, 387; 4 Kent, 23, (8th edition); Bill of Rights, sec. 8, (C. & N., 46); Constitution, sec. 10, Art. 1, (C. & N., 12).
   WRIGHT, J.,

delivered the opinion of the Court.

This is ' a bill to - divest out of the defendant, Tip-ton, the title to 730 acres and 30 poles of land in the county of Obion, claimed by complainant.

The facts of the case are these: On the 4th of August, 1849, Tipton made a consolidated entry for 1200 acres, under the provisions of the act of 1847, ch. 20.-

In October, 1840, six individuals, whose names are given in the record, being, separately, the owners of small certificate warrants issued by the register of West Tennessee, amounting in the aggregate to 141 and 4-9th acres, caused several entries to be made of the same, in their respective names, in the entry taker’s office of Obion county; and being thus the owners of these small tracts, they caused the same to be enlarged to 200 acres each — under the occupant laws of the State, providing for extension rights — and, also, had the same entered in their respective names. These tracts constitute the 1,200 acres before mentioned.

Tipton became the assignee of these warrants and extension entries, and for the purpose of obtaining a grant, made the consolidated entry aforesaid — having paid to the entry taker the fees that were allowed by law, to the entry taker, surveyor, register, and Secretary of State, in obtaining grants. But the State did not issue the grant to him till the 1st day of January, 1856.

On the 1st day of September, 1851, S. W. Coch-rane made an entry of the land claimed' by complainant, and which, in part, conflicts with Tipton’s entry and grant; but being subsequently informed of the conflict, he determined to abandon his entry, but the same being left on filé in the entry taker’s office, was recorded by the deputy entry taker without his knowledge.

It seems, that prior to the discovery of the conflict, Cochrane had proposed to give this entry to the complainant ; and, as we take it, from the record, without any consideration. At all events, none appears, and we are satisfied none was paid. Complainant does not allege or pretend there was any. But, notwithstanding these facts, and with a full knowledge of Tipton’s prior claim, he insisted that Cochrane should permit him to have the benefit of the entry; and Cochrane did, accordingly, on the 13th of August, 1855, assign it to him, without consideration — informing him at the time of Tipton’s prior right — and of his determination not to claim the entry.

Afterwards, and on the 12th of December, 1855— complainant caused this entry to be surveyed, and tendered the plot and certificate of survey, with the fees of office, to the entry taker, who refused to receive the same, because of the existence of Tipton’s prior right.

The complainant insists that Tipton’s right to obtain a grant, by force of the act of the 24th of January, 1850, expired on the 30th of August, 1851, and that in consequence of the hiatus in. the law — extending the time to obtain grants — between that time and the act of the 13th of November, 1851, Tipton’s entry became vacant, and subject to his entry, and that he now has a right to divest the legal title -out of Tipton.

The Chancellor decreed otherwise, and we think his decree was right. It is manifest complainant has no equity to move a court, actively, in his behalf. This is so upon general principles. It is not necessary for us to decide the question debated here, whether after Tip-ton — under the act of 184T, ch. 20 — had paid the fees allowed by law to the entry taker, surveyor, register and Secretary of State, and had done every thing required at his hands in order to obtain a grant, leaving nothing but the simple duty upon the State, and its officers, to issue it — the Legislature intended, by the subsequent legislation, to impair his rights — or if so intended, could do SO' — -because we think it is enough that Cochrane himself, having abandoned his entry, and yielded to Tipton’s prior title, could lrave no equity against ■ Tipton; and comp inant is, necessarily, in his shoes, having,- n® higher equity.

There has been no hiatus in the law, securing Tip-^vton’sr rights, since the 13th of November, 1851 — and if no right remained in Cochrane during the hiatus of that year, which he could enforce against Tipton — and we have seen that none did — how can complainant, by the assignment to him in 1855, when Tipton’s title had perfect vitality, by relation to the entries in 1840 — acquire any equity? We are unable to see.

It may, also, be remarked, that ■ as to the 141 and 4-9tk acres held by Tipton under the certificate warrants, the same were protected from Cochrane’s entry upon the principle of the case of Fogg et al. v. Williams and Hill, decided at the present Term of this Court.

There are other grounds, possibly, placing the equity of this case with defendant, Tipton. He has the legal title, and has paid a valuable consideration for it; and it may well be questioned — consistent with the case of Sampson v. Taylor, 1 Sneed, 600 — whether a Court of Equity could be moved to take it from him, at the instance of one who — with a full knowledge of his previous rights— . seeks to come in under a hiatus in the extension law, upon an entry made upon a mere nominal consideration. In such a case, are not the equties of the defendant, at least equal to those of complainant, and having the legal title, ought he not, in a Court of Chancery, to prevail ? Rut we do not mean to settle this now, being enabled to put this case on other grounds.

The decree of the Chancellor will be affirmed.  