Johnston vs. Breckenridge et al., 2 B. Mon 301

Chief Justice Bobeetsoh delivered the Opinion of the Court. Althouoh the prior entry of the elder patentee may not constructively cover the land claimed in this case by, and decreed to the parties holding under the junior patent and entry, nevertheless all parties claiming as they do, under Daniel, who made the entries, the appellant is, in our opinion, protected to the extent of the interference between the surveys and patents (about 450 acres) by Daniel’s conveyance to his (the appellant’

s) ancestor of 800 acres of his (Daniel’s)- “survey” of 1000 acres.

That survey embraces the whole of the land decreed to the appellees under a subsequent survey made on one of Daniel’s junior entries, assigned after the date of the said conveyance, which identifies the land conveyed as bounded and embraced by the survey as made, and therefore, as it appears that this deed includes the land in controversy, it operates as an estoppel against Daniel and all persons claiming, as the appellees do, subse. quently under him, from disturbing the appellant’s right to the land so identified and sold, by going behind that survey and showing that the entry did not, according to legal construction, include all the land embraced by the survey as made, and thus recognized by Daniel himself.

Guthrie and Morehead Reed for appellants; Lough-borough for appellee. Upon this ground, therefore, we are clearly of the opinion that the decree against the appellant is unsustainable. That decree is consequently reversed and the cause remanded, with instructions to dismiss the bill and dissolve the injunction as to the appellant.