UPON an appeal from a decree of the superior court of *r 1 chancery for the Staunton district, pronounced the 20th of November 1809.

The appellant had recovered in ejectment, in the district 11 J 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.

Chancellor 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 pa? tent of the defendant, as is also comprized within the patent of the plaintiff; and, that the proceedings on the judgment in ejectment be perpetually injoined.

From this decree the defendant appealed.

Whatever pretensions the ap? pellee may have, he should have asserted them, at law,' by caveat; in which mode alone, the conflicting rights of claim? ants, 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.

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