#### Sears v. Parker.

tiranta from the State cannot be avoid', d for any cases, in any other manner, than by proceedings in a Couit of equity.

Ejectment. Henry Eustace McCulloch had a tract of land in the county of Randolph, the first line of which began at a marked corner, thence a course and distance called for in his deed, and a second corner which was also marked j but the distance from corner to corner, was greater than the distance mentioned in the deed ; then the deed called for a second line, mentioning the course and distance, and a stake as the point of its termination. It was not marked, nor was there any stake to be found. In like manner the deed called for the third and fourth lines* describing their courses and distances. These *146were {I0f marked. He had also a second tract adjoining this, beginning at the stake, the third corner of the first tract, being the termination of the second line; from thence the course of the said second line of the first tract was continued. The deed called for a marked corner as' its termination, which was found ; but at a distance from, the stake much greater than that called for in the deed. The deed next called for a line of the same course with the third line of the first tract, but only half the distance of the said third line; thence by a line parallel to the first line of the second tract, calling for a corner at the intersection of the third line of the first tract. Sears had obtained a state grant for the land adjoining the other half of the third line of the first tract, but the surveyors appointed to run those tracts of McCulloch, previous to their being sold as confiscated land; had begun at the second corner of the second tract, and had run it by courses and distances; they then extended the second line of the first tract to the third line (as they surveyed it) of the second tract, being the fourth or concluding line from the beginning stake mentioned in the deed. This.made the distance of the second line of the first tract much greater than the distance called for in the deed, and of course the third line of the first tract drawn from thence, would include the land taken by Sears; but if the second line of the first tract should terminate at the completion of the distance mentioned in the deed, and the third line of the first had been run by its course and distance from thence, then it would leave out the land taken by Sears.

B C represents the course and distance of the second line of the first tract. B D represents the second line of the first tract, as run by the surveyor to make it adjoin, to the line D G, being the third line of the second tract5 run by the surveyor by courses and distances from the *147corner I. Should the third line of the first tract be run from the point C, the distance and course called for in the deed, it would form the line CHE, and leave out Sears’s land, lying between the lines E H and F G; But if the distance of the second line be disregarded, and that be extended to the line of G D as laid off by the survey- or, and the third line of the first tract be run from the first point D, then Sears’s land is included. These two tracts were sold as confiscated property, and were described in the deeds granted to the purchasers as run by the surveyors, that is to say — the first tract was bounded by the line D F, and so included Sears’s land.

The Counsel for Sears insisted, that where a deed calls for a course and distance, and there be neither a marked corner nor a natural boundary called for, that the line must of necessity stop where the distance called for in the deed is completed; and in the present case, that is at the point C, ana that is the beginning corner also of the second tract; consequently the lineC E is the third boundary of the first tract, and not the line D F, and consequently also Sears’s land is not included either in the first or second tract of McCulloch.

E contra

It was argued by Mr. Moore for the Defendant, that old surveys ought to have a reasonable allowance made, since in almost all of them the lines are too long; the first line of the first tract in the case now before us, is a marked line, and too long ; if we allow the same measurement in the second line, that proportion will carry the second line beyond the point C and even to D,' and then the land entered by Sears and granted to him by the'State, was not vacant land at the time of his entry. Secondly, he argued, that the deed granted by the State to the purchaser of this confiscated property, expressly included the land now contended for by Sears ; and supposing it to have been vacant land, not included in-either of McCulloch’s tracts, yet having been granted by the State to the purchaser of the confiscated lands, prior to Sears’s entry and grant, the State could not af-terwards grant it to him, and so quacunque via data, Sears is not entitled to recover.

Counsel for Sears in reply

The deed to the purchaser of the confiscated lands, expressly states that this land was sold as the land and estate of Henry Eustace M’Culloch confiscated by the Legislature$ which makes it evident that Do more was intended to be conveyed *148than tlie land which had been the properly of Henry Eustace M’QullocJi; and if by mistake or design the boundaries had been extended beyond what his grant covered, that, mistake was to be rectified by the express words of the. State grant, saying the State conveyed it as Ms land ; for whether it was his land or not was to be ascertained only by his grant, not by the description of the State grant to the purchaser; and upon inspection of M’Oulloch’s deed, and by running the land described therein b/ course and distance, where there is no marked line, we are ascertained that the land now claimed by Sears, is not any part of the lands formerly granted to M’Culloclw and as Ids to the purchaser of it as confiscated. Moreover the laws of this State gave authority to the Commissioners of confiscation to sell only suefs lands as had been appropriated, and belonged, and were legally secured to such persons as bad incurred the penalty of confiscation, not those laigls that were vacant and never had been appropriated intiividnally — for he disposal of these, other officers were appointed under the laws, for entering vacant and unappropriated lands. The officers appointed to dispose and make conveyances for these several descriptions of land confiscated, and vacant lands, were in the nature of attornies constituted by individuals, to sell lauds for their principals j with regard to whom it was a well known rule of law, that if the attorney exceeded bis powers, whatever he did beyond them was void, as being done without authority. Suppose an individual appoints two attornies, one to sell one tract, and another to self another tract adjoining; and the first sells the tract he was empowered to soli, and part of the adjoining tract, which the other only was empowered to sell — surely the sale would be void as to such part of the second tract as he had not been authorized to dispose of. So here, the Commissioners of confiscation were empowered to sell M’CullocWs tract, the Entry-taker for the County of Randolph, is empowered to sell the vacant and unappropriated land adjoining; and is not the sale of this vacant land made by the Commissioner void, as having no power tS intermeddle with it? If not, I would be glad to know, for I cannot with my utmost exertion discover the distinguishing mark that differs the case of these officers from that of the at-tornies of individuals. It seems to me, the rule of law is the same in both cases, and ought to be adhered to in *149the present case, more especially as the Entry-taker, the proper officer, having lawful authority to sell has executed his power by receiving the purchase money for the public, and issuing his warrant for the surveying this vacant land for the purchaser Sears, according to the laws of the country. It has been hinted by the Counsel for the Defendant, and indeed it must he acknowledged, that the Court in some instances formerly have decided, that a S'ate deed cannot be avoided either i« all or in part, upon evidence on a trial in ejectment, for the danger that would ensue to purchasers if their deeds could be avoided by parol evidence given to a jury. — With great deference to the Counsel on the other side, and to the former opinions of the Court, I must say, that I have considered of this position with the most anxious attention, and viewed it in every light which my imagination could place it in, and I could never attain to any view of the subject that could give it the appearance of consistence with the rules of law. Suppose a Commissioner of confiscated property, or an Entry-taker, had sold to A, who paid the purchase money, and the Governor and Secretary by mistake had made out and executed a state grant to B. and afterwards had made Qiit and executed a deed to A. shall not A. be suffer*! to shew this mistake upon a trial in an ejectment brought against B. to recover the land? Suppose the Governor and Secretary had been deceived into this measure by fraudulent and false representations of B. shall not. this fraud be shown upon a trial in ejectment, and the deed to B. avoided ? Suppose the warrant of survey as made, by the proper Eu-try-taker, the certificate of survey, and the plat annexed shall be falsely made out. and returned to the Secretary’s office, and by that means a grant procured in the name of the forger, or any other person, to the prejudice of a fair purchaser who afterwards obtains his grant, shall he not be suffered to prove all this upon a trial in ejectment? It is argued, that tins must be done in a Court of equity — but vvliy? I apprehend this doctrine is grounded upon a mistake of what is said in many books respecting the powers of a Court of Chancery to repeal letters patent improperly granted, or obtained upon misrepresentation or deception, if we attend to the different construction of the Court of Chancery in England, and of our own Court of equity in this country, the mistake will be discovered. The Court of Chan-*150eery in England excercises a common law jurisdiction with respect to the repeal of letters patent, and also an equity jurisdiction altogether distinct fr om that, upon a bill filed for that purpose. Their jurisdiction ' with respect to the repeal of letters patent is limited, and directed by the settled and known rules of the common law. 3 Bl. Com. 4-7, 261. Now our Court of equity is not vested" with this power, it possesses only all the powers and authorities within its district, that the Court of Chancery, formerly held in this State under the late government, used and exercised, and that are properly and rightfully incident to such a Court, agreeably to the laws in force in this State, and not inconsistent with our present constitution ; provided no final decree shall be passed by such Court, but where two of the Judges at least are present. 1782. ch. 11. s. 2. This vests in the Court of equity here such powers, and these only as the Court of Chancery in England exercises on the equity side of the Court. All the subsequent parts of the act cited, are directed and confined to process, powers and proceedings that were used on that side of the Court of Chancery in England, and speaks of none others. So that the whole texture of our act shews, that our Courts of equity are empowered to proceed by bill, not by sd. fa. The Court of Chancery in England, on the equity side, also proceeds by bill, answer and depositions ; but on the law side, and so far as regards the repeal of letters patent, it proceeds according to the rule of the common law. 3 Bl. Com. 47, 49. JVood’s Inst. 479. 4 Inst. 79 to 81. 1 Btr. 146. 1 Eq. Ca. Jib. 127. and this power has never yet been vested, by any act of the Legislature in our Court of equity. It has no power therefore to proceed by sd.fa. to repeal the grants of the State, as the Court of Chancery in England hath. The same reasons which renderd it proper there, that the Chancery should exercise that power, do not by any means here. The Chancellor has the possession of the great seal, which is necessary to give valiclity to these grants, and the records of them are preserved in his custody, and he for the most part knowing the suggestions upon which tiie grants issued, he is the proper officer therefore to be entrusted with the charge of detecting mistakes and rectifying them — he can perform this task with more effect than any other, and he can vacate the record of the grants improperly issued, these records *151being within his immediate power; but what would be the consequence of an attempt on the part of our. Court of equity to exercise this power? Can this Court govern itself by the rules of the Court of Chancery in England, when proceeding with the same object in view? If their rules will not apply here, then our Court must either frame new ones, which I apprehend it has no authority to do, or must relinquish its jurisdiction entirely. The Chancellor in England- issues his sci.fa. returnable either before him in his Court of Chancery, or into the King’s Bench ; when returnable before himself, the party either suffers judgment by default, or demurs, or take's issue; in the two former cases, the Chancellor gives judgment'; in the latter, he sends the issue into the King’s Bench to be tried. Dyer 197. 1 Mod. 27. Latch. .3. 3 Lev. 220. Cro. Jac. 12. 6 Mo. Hep. 229. 4 Inst. 72. 80. There is no bill filed against the Defendant, he is not required to answer on oath and discover; the issue is tried upon evidence as other common law issues are. How willour Court of equity proceed — will it issue a sci.fa. and send the issue to themselves, to be fried before themselves as common law Judges by a jury? What need of all this circuity? Or will-they proceed by bill, answer and deposition, leaving the chancery course of proceeding and mode of trial altogether? This will be entirely new, and the first precedent either here, or in England, from whence our laws are borrowed. If we proceed by pleading to the sci.fa. and making up an issue, cannot a jury upon the trial of an ejectment, under the direction of the Court, do the same law and justice as if they tried it upon an issue made up in the pleadings to a sci.fa? And after all, will not the evidence upon this issue be parol evidence, to shew the mistake, misrepresentation or deception in the same manner precisely as upon the trial of an ejectment? Where is the evil avoided then, or the advantage attained, by trying it upon a sci. fa. that may not be equally avoided or attained by trial in ejectment? The usual and ordinary method observed in England, is for the party injured to apply by petition to the King, for leave to use his name for repealing the letters* patent. 3 Bl. Com. 261. This perhaps may not be absolutely necessary, but if it be, who is to give that leave here? Has the State thought proper to vest that power any where ? If the injured party can institute process without any leave, thep why not institute an ejectment as well as a bill in equity? Where. is the law of th§ *152country, or any scintilla of legal reason, to determine to the latter rather than the former? The form of the judgment on a sci.fa. in England is, (¿uod prediefce literce pa-tentes dlcti Domini Recéis revocentur, cancellentnr, evacuen-inr. adnnllentur, et vacuce et invalidas pro millo penitus hdbeantur, et teneantur, ac etiam quod irrotulamentum eor-undem cuncelletur, cassetur et adnihiletur, &c. and then the Chancellor damns the enrolment thereof, by drawing strokes through it like a lattice, 4 Inst. 88, and for this propose the letters patent themselves are. recalled into the place from whence they issued, that is, into the chancery, that they may be cancelled. 1 Sira. 151, 8 Rep. 31, 35.

, The judgment in the ejectment will indeed only he, that, the Plaintiff recover, without saying that the patent shall be recalled, and that together with the enrolment in the Secretary’s office, cancelled. But can the Court of equity say this in their decree? I believe there is no precedent of such a decree having ever been pronounced by any Court of equity or chancery that ever set in this country; if there has been any such, we have a right to challenge the production of it. indeed cases may exist, where a Court of equity, proceeding by bill and answer, would be found totally incompetent to afford any relief. Suppose the patent be obtained by some fraud or deceit, that would subject the patentee to a forfeiture, or to a criminal prosecution ; if if he obtained, for instance, means of a forgery, of a warrant of survey and return, as before suggested, or he transmitted to the Secretary by fraud betw-en the Entry-taker and patentee, to the prejudice of a third p-rson, shall he lile his bill against them, and compel the Defendants to answer to the fraud or to the forgery charged upon them ? Shall they be compelled to subject themselves to forfeiture or punishment ? And if they shall not be compelled to answer, what advantage is there ir proceeding by this mode, rather than that of an ejectment ? JNay, more — if ho is not compellable to answer, the Plaintiff’s bill must be dismissed. This Court will find itself incompetent to afford redress, in the most gross and flagrant instances of fraud, and the party injured must either be permitted to geok and obtain his remedy at law, or remain without any remedy at all ; and if suffered to proceed at law, he roust do that by some other means than that of a sci.fa. to repeal the grant; for the Supreme Courts of law i« *153this country, can only exercise such powers as were ercised by the former Judges in this country before the revolution, or more properly speaking, they cannot, exercise greater, 1777, c. 2, s. 2, and the Superior Courts in this country could never exercise greater powers at any time, than the Judges of the King’s Bench in .England, 1768, c. 1, s. 2, except in some few instances upon subjects of ecclesiastical jurisdiction expressly submitted to their cognizance. And the King’s Bench only proceeded upon the issue joined in a sci. fa. to repeal letters patent, when it was sent to them from the Petty Bag in chancery. 1 Mo. 29, Latch 3, 4 Inst. 80. Although it must be acknowledged, the contrary seems to be implied in favour of the original jurisdiction of th,t Court, in 6 Mo. 229, and 4 Inst. 72. But howeaer this may be, all the authorities upon the subject, disprove the position that the Court of equity can proceed to the repeal of public grants ; and should it be admitted that the sci. fa. for that purpose, may bo made returnable in the first instance before the Court of King’s Bench, yet it is to bo doubted whether the Chancel,'or must not render the judgment himself, upon the proceedings returned in the Potty Bag, when ripe for judgment. 4 Inst. 79, 80, 88, 294. Notwithstanding some contrary adjudications, and the opinion of Mr. Justice lilackslone in his 3 Coin. 48, Civ. Jac. 12, 1 Mo. 29, Latch 3, and if, by tlve rules of law, he is to render the judgment on the law side of the chancery, then it will also follow that as there is no Court in this country vested with an authority similar to that «C the Chancellor in the Betty Bag, there is none that can give the necessary judgment after the institution of the sci. fa..and ttial upon it. If on the oilier hand, such judgment may bo rendered in the Court of King’s Bench, and consequently by the wording our acts of Assentbly before cited, by the Superior Courts of this country, it will still remain true, that the Court of equity cannot interfere. And then a furl her enquiry will be, whether the Superior Court of buv cannot as well receive evidence of the invalidity of the grant, upon a trial in ejectment, as upon the issue joined in a sci. fa. to repeal it j as to which the rule seems to be this, that when the grant has issued under such circumstances as renders it void, for fraud, misrepresentation, deception or the like, the party injured may either proceed to have it recalled and cancelled, (2 Bl. Com. 348, Freeman j72,) or he may pro-*154ccetl to avoid -the effects of the grant, by recovering the property or right invaded by it, notwithstanding the grant, by such action as suits his case.- 3 Lev. %20, 3 JVbZs. M. 202, s. 14, 4 Bac. M. 416. The reason why they are sometimes and indeed frequently recalled and cancelled by sci. fa. as I apprehend, is, that they may not be set up to the prejudice of the injured party, after the evidence, to prove the circumstances that would invalidate them bath been lost. But in point of law, they •are equally invalid and void when granted by mistake and upon deception, either in matter of fact; or of law, as in case of false suggestion, misrepresentation or misreci-tal of former grants, of the interest of the grantor and the. like, before as they are after the judgment of cancel - lation is pronounced. 3 Term Rep. 242, 2 Bl. Com. 343. And these circumstances of invalidity may be shewn before that, repeal, in every possible action suiting the case of the party aggrieved, in which the point of invalidity can be brought before the Court ; as in assize of nui - sance, quod permiftat, information in the nature of intrusion, trespass, ejectment; for which I beg leave to cite 5 Rep. 94, 6 Rep. 56, 1 Rep. 52, 10 Rep. 67, 5. and particularly 2 Rep. 17. 33, 54, 10 Rep. 109, which arc cases in ejectment, in which the'invalidity of the King’s grants were expressly decided ; and prove beyond contradiction that the effects of an invalid grant may be avoided by proof of the circumstances that render them invalid upon the trial of the issue joined in that action. In (he last of them it was decided that the grantee shall not be permitted to claim by any other title, than that expressed in the grant itself; and that if the King grants the manor of I), expressing in the patent, that the said manor came to his hands by escheat, and in truth it did not come by escheat, the grant is void, because of the falsity of the suggestion, which shews him to have been deceived at the time. These cases are fully up to both points , we wisli to establish, namely, that the invalidity of the grant may be shewn in the ejectment, and also that a public officer granting land as the agent of the community, believing the title of the community to have come by one means, by means of confiscation for instance, when in troth it came by another, which if he had been apprized of, he would not and ought not to have executed the gram, does noi thereby convey any property to the grantee; and we therefore hope, that the objection taken on the other side *155will not prevail. One other argument hinted at in the course of the debate, and perhaps it fell from the Court, seems proper to be attended to — that the State having granted, if it were imposed upon in the grant, only has' the right to institute process for its repeal. If w6 proceed by analogy to the sci.fa, in England, this is not so. The King in his own name, or any private person using his name, may institute this process to remove out of the way, a grant prejudicial to his interest. 4 Bac. Jib. 416, S Bl. Com. 261, GMo.Eep. 229. So that altho’ ihe State may never think, proper to proceed in this case, yet Sears may institute the sci.fa. if it will lie in our Courts, and by the same reason may take advantage of the invalidity obliquely in this trial without any sci.fa.

Per curiam,

Judge Ashe and Judge Williams

We have often decided, and we are now of opinion, that the. State having granted vacant lands, the first patentee will he entitled to hold them, notwithstanding any attendant circumstances that render it voidable, until it be actually avoided in the Court of equity; and that it cannot be avoided by any parol evidence given to a jury on a trial in ejectment, but the jury may find a special verdict if they please, subject as to this point to the opinion of the Court.; — But the jury did not agree, and one of them was withdrawn.

Afterwards, at a subsequent term, the Court holding the same doctrine, there was a verdict and judgment for , the Defendant.

Note. - Vide Reynolds v. Flinn, & the references in the note ante 106.