Nashville union and American. [volume] (Nashville, Tenn.) 1853-1862, 1859-12-06

state of Tennessee, at Jackson, april
Term, 1859.
Bullock, vs. Upton, ct. al.
This is bill to divest out of the defendant Tip
ton the title to 730 acres and 80 poles fland in the
county of Obion, claimed by complainant
i The facts Of the csse these On the 9th OF
August, ls49, Upton made consolidated entry for
200 acres under the provisions of the act Of ls47
ch 20
In October, 1910, six individuals, whose names
are given in the record, being separately the own
ers of all certificate warrants issued by the Regis
| ter of West Tennessee, amounting in the aggregate
TO l4l 40 acres caused several entries to be made
of the same. in their respective Names in the Entry
Takers Office Of Obion county and being thus the
owners Of these small tracts, they caused the
10 be enlarged 200 each under the occupant
laws of the State E=9yiding for extension rights !;
and also had the same entered in their respective
names These tracts constituted the 1900 acres be-
fore mentioned
Tipten became the assignee of these warrants and
extension entries and tor the purpose Of obtaing
grant made the consolidated entry aforesaid. having
j paid to the Entry Taker the fees that allowed
by law to the Entry TakeP, Surveyor, Register and
Secretary of State, in obtaining grants. But the
State did not issue the grant TO him till the lst day
| of January, lH56
| On the ist day of September, 1881, S. W. Coch-
rane made an entry of the land claimed by complain
ant, and which. in part conflicts with TptOns entry
and grant but being subsequently informed of the
conflict, he determined to abandon the entry; out
the same being left on the file in the Entry Takers
Office was recorded by the Deputy Entry Taker
without his knowledge.
1t seems that prior to the discovery of the conflict
Coclrane had proposed TO giUe the entry 10 the
piainant and take it, from the record, with
out any consideration. At all events none appears
and we are satisfied none was paid.
Complainant does not alege, or pretend there was
any. But Notwithstanding these facts, and with a
full knowledge of Tiptons prior claim, he insisted
that Cochrane should permit HIM to have the benefit
of the entry and Cochrane did accordingly, On she
18th Of August 1855, asFga is 10 him. without con-
sideratOn, informing him at the time, OF TiptOns
prior right and of his determination not to clam
the entry.
Afterwards and on the 18th of December, 1856,
complainant caused this entry to be surveyed and
rendered the plat and certificate Of survey with the
fees of Office to the Entry Taker, who refused to
receive the same, because of the existence of TIP
toms prior right
The complainant insists that TptOn's prior right |
TO obtain grant, by force of the act Of the 24h #
ls52, and that IN Gonseqpenoe of The hiatus IN !
the law, extending TIE time to obtain grants, /
between that time and the act Of the 90th Of Nc
vember, 1851, Tipton's entry became vacant and
subject to his entry. andl that he has right to
divest the legal title out of Tiptcn
The Chancellor decreed otherwise, and we think
his decree was right 1t is manifest complainant
has no equity to move Court actively, in his be-
half. This is upon general principles. 1t is nat
necessary for is to decide the question debated
here whetheF after 11ptOn, under the act Of le4I,
ch 20, had paid the fees allowed by law, to the En-
try Taker Surveyor, Register and Secretary Of
State; and had done every thing required at his
hands in order TO obtain grant, basing nothing but
the simple duty upon che State, and its officers, TO
issue it, the Legislature intended by the subsequent
iegis alton to impair his right, or if SO intended,
could do so; because think it enough that COeh-
rane himself having abandoned his entry, and yield
ed to TiptOns prior title could have no equity
against Upton; and complainant is necessarily in his
sEOos, having no higher equity.
Thsre has been no niatus in the law, securing
Upton right since the 18th of November, 1851, and
if no right remained in Coelrane during the hiatus
of that year, which he could enfoTce against Upton,
and we have seen that 4ane did, ana how can conf
planant, by assignment in 1855, upon Tiptons title,
have perfect validity by relation to the entries in
lS40 acquired any equity. We are unable to see.
1t may also be remarked that as to the l4l 40
acres held by Upton under the certificate warrants,
the same were protected from Cochrane's entry up
on the principle of the case Of Faga et. al, VS. VII
llama and Hill decided at the present term OF this
poupt.
There are other grounds possible, placing the equi-
ty of this with defendant, Upton. He has the
legal title and has paid valuable consideration for
it; and II may well be questioned, consistent with
the case of Sampson Taylor, Sneed, 6OO wheth-
er a Court of Equity could be moved to take 1t
from him at the instance of one who, with full
knowledge of his previous right, seeks TO caIae "A
under a hiatus in the extension law, upon mere
nominal consideration, Ii such case, are not the
equities OF defendant ct least equal to those OF COM
planant and haYing the legal title ought he not in
q Court of Chancery to preyaiR But we do not |
mean TO settle this now, being enabled to put this |
case on other grounds.
The degree Of the Chancellor viii be affirmed
WRIGHT.
Test: NJ D. WEIGH Clerk.