#### Den on demise of Moses Langston *v.*Richard M’Kinnie.

From Wayne.

A. having entered a tract of land, conveyed it to B. in 1780, and to C. in 1784. In 1782 the land was surveyed, and the grant from the State issued in 1792.' C. had possession of the land under the deed to him, for seven years, before the grant issued, and B. brought an ejectment against him for the land. He cannot recover ; for

1. If the grant had relation back, go as to vest the legal title in B. as from 1780, the seven year's adverse possession of C. would bar his right of entry; but, • *" • ■*

2d. The grant shall enure by w^ay of esto] to the benefit of B, so as against A. to give himá legal title as ir . 1/80, because of the privity of estate between them : yet there being no privity between B. and C, the estoppel cannot operate, and B. sets up against C. a title derived from one who had only an entry ; for the title remained in the State until 1792. ' A Court of Law cannot take any notice of B’s title in an ejectment against any other person than A; and as to A. he would be estopped to deny it.

This was a special verdict, in which the Jury found, that Risdon Nicholson conveyed the lands in question to Jacob Langston, on the 8th August, 1780 ; that Jacob Langston devised the same to the lessor of the Plaintiff, on the 25th December, 1784, and shortly afterwards died. That a grant from the State, for the lands, issued to Risdon Nicholson on the 10th April, 1792, the survey of which bears date the 10th June, 1782. That Risdon Nicholson conveyed the same to Thomas Daughtry, on the 24th December, 1783, who conveyed the same to Frederick Hering, on the 7th January, 1784. That Frederick Hering, by his will, empowered his executors to sell, and on the 20th November, 1805, he being dead, they sdld and conveyed the lands to the Defendant. The Jury further found, that Frederick éering, and those claiming under him, had possession of the lands for-seven years from the 4th June, 1784.

*68' Bx the Court.

The grant issued in 1792, to Ris-don Nicholson, enured by way of estoppel to the benefit of those claiming under him by conveyances made anterior to that time ; and the conveyance to Jacob Langs-ton being prior in time to the conveyance to Daughtry, would prevail, were it not for the seven years adverse possession which those claiming under Daughtry have had pf the lands. This possession would bar the right of entry of the lessor of the Plaintiff, if the grant had relation back, so as to vest the legal title in any one having a conveyance from Nicholson anterior to the issuing of the grant. But could the grant relate back so as to produce such effect ? As between Nicholson and either the lessor of the Plaintiff or the Defendant, the grant shall be considered as producing this effect; for as to the first, Nicholson would be estopped by his deed of 1780, from denying that he had not the legal title, to the lands at that time j and as to the second, he would bo in like manner estopped from denying that he had not the legal title to the lands in 1784. But the estoppel operates only between parties and privies. There is no privity between the lessor of the Plaintiff and the Defendant j and what is the title which the lessor of the Plaintiff sets up ? A deed from a man who at the time he made it, had no title that a Court of Law can take notice of j he had a mere entry, and the legal title remained in the State for twelve years afterwards. This title would by way of estoppel prevail .against Nicholson, were he the Defendant; but it shall prevail in this Court against no one else. The condition of the Defendant would be the same as that of the lessor of the Plaintiff, were he out of possession and should bring suit to recover it. He could recover against no one, in an ejectment, except Nicholson. So that *quacimque via*data, the Plaintiff cannot recover.