Person’s Heirs vs Davey

—From Hillsborough.

The defendant entered a tract of land lying in Person county; the plaintiffs caveated the entry, and by consent of parties the caveat was tried in court, when a verdict was fouud for the defendant. The plaintiffs obtained a rule for a new trial upon an affidavit setting forth, 1st» that their ancestor, Thomas Person, in his life time obtained a grant from the state for the lands in question, and therefore the jury ought to have found a verdict in favour of the cavea-tors. gndly, That the said Thomas Person bad purchased an improvement on said land from the first occupant, and ' therefore had the prior equitable right to the land ; but this evidence was not produced on the trial, because the cavea-. tors conceived the grant aforesaid to be sufficient. The case , . , . . _ was sent to tins court upon the question whether the rule for a new trial should be made absolute or be discharged,

hYii ofa ca-veactheon- ¡»> who has tliG best C“ qmtabie ewe a” rant known to a torepiaij to^he"^^ the ev¡-dence offer, ed wassuf. toodre"-son for a new tyia»,

Locke — -Judge,

delivered the opinion of the court. Upon the trial of a caveat, the question is not, which of the parties has the better grant or title, but simply which has tho best equitable right to obtain a grant. It is the peculiar province of the jury to determine this question from all the facts disclosed to them on the trial. The verdict of the jury therefore, saying, that the defendant Davey is entitled to a grant cannot impair or destroy the grant of Person’s already obtained-; and if his grant be valid in law, his heirs will be able to secure the land in dispute. The court therefore think that on this ground a new trial ought not to be granted: but that Davey should be permitted to obtain bis grant and the parties be left at liberty to determine the validity of their respective grants by a trial in an ejectment *116or jn guch other mode as they may choose»- The second reason assigned for a new trial is insufficient, as the fact (Its-closed in the affidavit was known before the trial of tho caveat and the proof of that fact omitted to be introduced thro5 the negligence of the caveators. Let the rule for a new tri-al be discharged.: