
    Donegan, et als. vs. Taylor.
    1. The elder entry and younger grant gives title against the elder grant and younger entry. The elder grant, however, prevails against the younger grant and elder survey.
    2. The probate of a will contained the following words: “The foregoing will was duly proven and ordered to be recorded.” The use of the word “foregoing,” imports that the will was spread upon the record preceding the entry of the probate. It will not, however, be regarded as material, where the instrument ' comes duly certified from another State, whether it appears that it was spread on record or kept on file. The manner in which different governments keep their records do not affect their validity or verity as such.
    Taylor brought this action of ejectment against Donegan and others, in the circuit court of Gibson. It was tried by Harris, J., and a jury of Gibson c.ounty, at the July term, 1844, and a verdict and judgment rendered for the plaintiff.
    The defendant appealed, and in the bill of exceptions it appears that the plaintiffs relied on a grant from the State of North Carolina, made in August, 1791, and that defendant relied upon a grant from the same State, made in December following. The plaintiff offered, in making out his chain of title, the will of Hunt. The probate of this will was as follows: “State of North Carolina, Granville County: November court, A. D. 1808: The foregoing will of Memucari Hunt, deceased, was duly proved by the oaths of Lewis Amis and Humphrey Pollard, subscribing witnesses thereto, and, on motion, ordered to be recorded.” A copy of the will, duly certified, was offered, and was objected to by defendant; the objection overruled, and the will read.
    The Judge charged the jury, that the grant was the best legal title, but that in the State of Tennessee, when the entries are made special and recorded, and where an elder grant had issued upon a younger entry, it had been the practice of the courts to look behind the grant, and where the younger grant was founded upon an elder entry, the younger grant prevail, ed; but in a case like the present, where there was no entry, but the survey was the first step towards obtaining a grant, the earliest grant would control, and that it would be unsafe and illegal to regard the survey as evidence of incipient title. To which defendant excepted.
    
      
      Totten, for plaintiffs in error. '
    
      McLanahan; for defendant in error.
    The lessors of the plaintiff claim the land by virtue of a survey on a removed warrant and a grant issued thereon.
    The entries were made in Middle Tennessee, but the lands were- taken by older and better claims; the warrant was lifted and appropriated on lands lying .in Gibson county.
    The defendant claims the same land by virtue of a grant from the same State; but .plaintiffs’ grant is of elder date than defendant’s; and there being no entry of the land to which the grant of the defendant can relate, the plaintiffs’ title is paramount to that of defendant’s.
    The oldest grant is conclusive evidence of the title at law,. except in the case of an elder legal entry. — Cooke’s R. 130.
    Grants cannot relate when not founded on an equitable title — 4th Haywood 180.
    A survey of land forms no equitable title to which a grant can relate, unless the survey is founded on a legal entry; and a grant founded on a removed warrant cannot relate to the date of the survey. — See the case of White vs. Crockett, 3d Haywood’s Rep. 188.
    It has been decided in this State, that when a grant issues on a removed warrant, it cannot relate to the date of the. survey; because there is no book or record to prove it, and parol testimony would be too unsatisfactory. — Same case and same page.
    A survey does not become a record when it is returned to the Secretary’s office; and there is no record evidence of the time when it is returned; and that fact is attempted to be established in this case by the testimony of Henry Rutherford, and then to be insisted that the grant shall relate, if not to the date of the survey, yet to the date of its lodgment in the Secretary’s office. This will not do.
   Reese, J.

delivered the opinion of the court.

The lessors of the plaintiff claim title by virtue of a grant from the State of North Carolina, made' in August, 1791. The plaintiffs in error, the defendants in the court below, claim title by virtue of a grant from the same State, made in December, 1791. The grant of neither party was founded directly upon an entry, but in each case upon surveys made by virtue of removed warrants. The survey of the younger grant was first made, and it is urged that the grant and survey relate to each other and constitute one title only. If this be not so, the lessor of the plaintiff was entitled to succeed in the trial below, by operation of his elder grant. The only relation established in North Carolina and Tennessee between a grant and any initiatory act of appropriation, which has been h,eld to overreach the elder grant and confer better title, is, the relation between the younger grant and the elder legal entry. Such effect, from the first beginning of our land system to the present moment, has never in any case been conceded by our courts to the elder survey. No such case can be found in all the volumes of Overton, Cooke, Haywood and Peck, during which period our courts were filled with investigation of land titles in every part of the State, and during which, our peculiar land system was matured and authoritatively settled. On the contrary, it has been expressly held, that the relation contended for between the grant and survey, and the effect claimed for it, do not exist.—See Cooke’s Rep. 130; 3rd Haywood 188; 4th Haywood 180.

It seems from the case to which we are referred, that a different rule prevailed in Virginia. But they had, likewise, in Virginia, their own peculiar land system, founded, as in our case, upon legislation from time to time, and judicial construction thereon; and the analogies of decisions, under these different systems, however they might have reciprocally commended themselves to respect, or even adoption, in the earlier or former periods of these very complicated and artificial land systems, should not now, when these systems, alike in their history and practical application, belong almost exclusively to the past, be permitted to unsettle, or in the least shake or disturb each other, in the determination of the very few remaining questions, which can spring out of them, by the difference which may be found in either system. There is clearly, therefore, no error upon this point in the judgment of the inferior court.

The other objection which has been taken to the proceedings below, is, in the reception of the will of Memucan Hunt as a part of the chain of title. The objection is, that the record does not show the will to have been properly proven, and that the record of the will and probate are not properly authenticated in the certificate made Under the act of Congress: as to the probate, the will is first set forth in totidem verbis, and then follows an entry tested of Ihe proper county, State and court, that the foregoing will of Memucan Hunt was duly proved. The word “foregoing,” imports that the will was spread upon the record preceding the entry of probate; but that is not material. The manner in which different governments may keep their records, whether in books or in files, does not affect their verity, or their nature or character of records. This will and probate are duly and lawfully certified to us to have been such, and must be so received by us. We are of opinion that there is no error in the action of the court below, and we affirm the judgment.  