#### *Gooseman v. Martin.

Argued March 25th, 1815.

i. Equitable Relief — Failure to Prosecute Caveat.* — A person neglecting to prosecute a caveat to prevent the emanation of a patent for land, is not entitled to relief in equity on the ground of a . previous certificate of the board of commissioners, under the act of May 1779, ch. 12, in his favour.

Upon an appeal from a decree of the superior court of chancery for the Staunton district, pronounced the 20th of November 1809.

The appellant had recovered in ejectment, in the district court held at Morgan-town, a tract of land which was the subject of controversy. The appellee obtained an injunction upon the ground of superior equity to that of the appellant; stating, that he held the land under a patent, founded on a settlement made by one Thomas Kelly, in 1775 ; a certificate of which settlement right was granted by the commissioners for adjusting titles to unpatented lands the 5th of March 1781; that he procured a survey to be made the 5th of October, 1788, and obtained a patent, dated the 10th of October 1789 ; that Gooseman, the defendant in equity, claimed a part of the same land, under a patent, prior in date to that of the complainant, founded on an entry made, on a treasury warrant of pre-emption, November 3d, 1783, and a survey the 14th of May 1788.

The plaintiff demurred and answered ; deriving his title to the land in question by assignment of an entry, regularly and legally made, and duly carried into grant ;— stating, farther, that he was a purchaser for valuable consideration, without notice of the adverse claim ; that, when he made his survey, there was no appearance which indicated a prior settlement; that there never was any person by the name of Kelly, a resident of Monongalia, so as to acquire a title to lands by settlement rights ; and, that he has reason to suspect that the plaintiff’s claim is founded in fraud.

Sundry depositions were taken on both sides ; going, on the one hand, to prove that no settlement was made by Kelly, to the knowledge of the witnesses ; and, on the other hand, that there was an old improvement on the land, which some of them believed was made by Kelly.

*261Chancellor Brown was of opinion, that the defendant’s *elder legal title ought to give place to the superior equitable title of the plaintiff. He therefore decreed, that the defendant do convey to the plaintiff, by sufficient deed with special warranty, so much of the land comprized in the patent of the defendant, as is also com-prized within the patent of the plaintiff; and, that the proceedings on the judgment in ejectment be perpetually injoined.

Prom this decree the defendant appealed.

Hening for the appellant.

Whatever pretensions the appellee may have, he should have asserted them, at law, by caveat; in which mode alone, the conflicting rights of claimants, prior, to the emanation of a patent, can be contested. But, being a stander-by, and not asserting his claim, in due time, and in a proper manner, he is not entitled to be relieved against a fair purchaser without notice.

Williams contra.

The certificate granted by the court of commissioners to Martin, assignee of Kelly, is conclusive as to his settlement, and right to a grant for the lands in question, (a) After their decision in his favour, which was binding on all the world, unless reversed by the general court, in the manner pointed out in the 9th section of the act of May, 1779, eh. 12, (b) he was not bound to prosecute a caveat to prevent another person from getting a patent for the same land. The only caveat contemplated by that act, as to this class of cases, was a caveat to be filed by the person, against whom the commissioners decided, to prevent the emanation of the grant, until his claim could be considered by the general court: but the party, whose settlement right was established by the commissioners, stood on a different footing.

December 1st, 1815.

*

See *foot-note*to Noland v. Cromwell, 4 Munf. 155. The principal case was cited along with Noland v. Cromwell, 4 Munf. 155, in Beckwith v. Thompson, 18 W. Va. 124.

(a)

 Stephens v. Cobun, 2 Call, 440; Ross v. Keewood, 2 Munf. 141.

(b)

 Ch. Rev. p. 91.

The president pronounced the following opinion of the court.

The court is of opinion, that the case comes clearly within the principles of the case of Noland v. Cromwell, decided in this court; and, of consequence, the decree of the court *of chancery is erroneous, and therefore reversed with costs; and, this court proceeding, &c., the bill of the complainant is dismissed.