The opinion
Overton, J.
delivered the opinion of the court.
The cause now coming on for final hearing, it appeared, that the two entries Nos. 1607 and 1669,had been removed to other lands, whereupon the court order and adjudge, that out of 602 acres in dispute, the plaintiff should recover 146 acres.
It appeared that Brown, by virtue of his entry, (see a note of the case as above) for 5,000 acres, in John Armstrong’s office, and a warrant which issued thereon, and which had been adjudged good, had made an entry in the office of the second district, agreeably to the land law of Tennessee, (1806) which expressed that, he reserved 456 acres, part of
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the 5,000 acres, the balance having been lost by older and better claims ; and of course, so much of the quantity of the warrant as was lost removed, or intended to be removed to other lands. Upon experiment by a surveyor, of the quantity lost, in this entry of Brown for
5
,000 acres, it appeared that there was not so much lost as was expected by 146 acres. Brown in consequence of this experiment, made another entry in the office of the second district, reserving 146 acres more of the 5,000 acres. After the first entry of Brown for 456 acres, and previously to the second for 146 acres, Ross enters the same land, and upon a survey for Brown for the whole 602 acres, being the whole of his 5,000 acre tract, which was not taken by older claims, Ross enters a caveat, which comes here by a case agreed from the circuit court of Maury. The court is of opinion that when Ross made his entry, he was apprised by the entry of Brown in the same office, that he only intended to reserve 456 acres, part of the 5,000 acre entry in John Armstrong's office, the balance as the entry express, having been lost; and that the additional reservation of Brown for 146 acres could not prevail against Ross who had entered previously thereto. That Brown having a preference in obtaining a survey and grant by virtue of his old entry in John Armstrong’s effect, was entitled to take his 456 acres out of the 602 acres, as he thought proper, provided it were by a direct dividing line running to the cardinal points ; that Ross should recover the balance, being 146 acres ; and that Brown should immed iately make has election of the part he would take. Upon which Brown chose the part of the 602 acre which lay on the western boundary, and that a dividing
line
should run north and south leaving the 146 acres adjudged to Ross on the east. Agreeably to act of assembly, Brown the caveatee must pay the cost, the caveator having succeeded in recovering part of the land caveated.