IN EQUITY.

#### Davidson and Benson v. Nelson

From Lincoln.

A. settled upon lands, uutlov titles from the Sirte, ami iiioso cUumiSf? under il, honestly iK'Iiov’n;^ that the lands bad b..eu properly geanted ; and after ¡1 possession of some year;; by A, IS. discovering that the lands were not i.fe.'t-d in the county named in the entry and ps-ant,, but in an adja-cni ose, ¡urde ¡tu entry, obtained a ¡>vasri, and filed & bill against A, chare'f.ig hi;r. v.úíh úTard, in obtaining and locating hh grauis, and. ptaying that iso might be compelled to convey to IS.

Held, that fee bill must he dismissed, because on general principles, :t Court of Law is fully competent to decide upon the case, and it ceilaiuly has jurisdiction, by the act of lf9K, giving it in all ca -es where the patent has irregularly issued through the mistato of the public officers, or of the pally clsiruing under it.

This was a bill ííícta in 1804, «taliw/y that the Complainants, in the year i7"9t, entered in a part of Ear.se. now Buncombe county, a tract: of land lying on the French Ennui river, and that a grant regularly issued for the same in January, 17 94 3 that the Defendant was in possession of the said tract, claiming title thereto under two grants, die one to Henry Conway, and the other to one Baggy, made before the issuing of that under wbicb Complainants claimed. These grants, it was slated in the bill, were issued on entries illegally made >« the office of John Armstrong, entry-officer of claims for western lands, and were therefore void ; and the bill . barged that the Defendant* at the time lie obtained pos*114session under tíie grants of Conway, and Baggy, well knew the same to haie been fraudulently obtained and , , , , , void; that he was a party to the fraud m procuring them to issue, notwithstanding he well knew of the better title of the Complainants. The bill prayed that the grants under which Nelson claimed, with all mesne conveyances thereon, might be declared null and void, and bo decreed to be delivered up to bo cancelled, that Complainants might he decreed to hold the possession under their grant, and that Defendant might account, &c.

The answer of the Defendant set forth an entry by .Baggy, and stated, that in 1788, a warrant issued from Armstrong’s office, to survey the said land ; but as it appeared that an entry of the same land had been previously made by one Sberrell, Baggy caused his survey to be made on the South side of French Broad, and it covered part of the land now claimed by Complain ants, though at that time vacant 5 a grant issued on this survey in 1788, and the Defendant was a purchaser from Baggy for valuable consideration. It was also stated in the answer, that one Bacon, in ¡733, entered in Armstrong’s office a tract of land, describing it as being in Greene county, and in the same year a warrant of survey issued, but it appearing that this land also had been ike subject of a former entry, Bacon caused his survey to be made on the French Broad, opposite D&ggy’s, and in 1788, a grant issued for the same to Henry Conway, by whom Bacon’s interest had been purchased : if there was fraud in the transaction between Conway and Bacon, Defendant declared his entire ignorance thereof. The Defendant further stated, that he was a purchaser of Conway’s interest for a valuable consideration, and insisted that it was in perfect agreement with the rules of law, to remove warrants and cause thews to be executed as had been done in this case. Ail knowledge of Complainants claim was denied, and it was alleged that Complainants had full knowledge of the facts set forth in the answer at the time they made their entry. The Deferí-*115fltvnt a'.,o in Ms answer, that he and those under whom L«‘ cí;í?!]¡.:;í5 bed been in actual, adverse possession of the iüíi‘1; íbr moro than seven years before the bill was ¡sled, and prayed the benefit of lino statu to of limitations, in the samo manner as if specially pleaded.

The feds, as admitted by the counsel, were these:

Tin-grató under which the Defendant claimed, issued, for land lying in Burke county, without the limite of the land directed to be enterad in John Armstrong’s office, by the act passed in the year 17S3.

The entries on which these grants issued were made for land lying within the limits of the territory directed to be entered in John Armstrong’s office, and were made in his office.

The tract granted to Baggy, was conveyed to the Defendant in March, 1791. Sixty acres of the other tract were, conveyed to him in June, 1790, and the? residue in September, 1797, «nd the Defendant had no notice of any fraud or illegality in tins entries am! grants under which he claimed.

The Bdendani: and those under whom he claimed, had possession of all the lands, except the residue com veyeii in September, 1797, for* seven years before the filing ©f the bill.

The grant*} and mesne conveyances nuder which Defendant claimed, represented the lands so claimed as situate in Greene county, within the limits of the territory to be entered in Job si Armstrong’s office. At the time these entries and grants were made, the boundary of Greene county was uncertain, and it was believed by most of the settlers, to comprehend the land in dispute.

Taylor, Chief-Justice.

The facts of this case, which are not controverted, very- clearly shew that the equity is on the side of the Defendant, The entries and grants were certainly obtained without/read ,* nor bad the Be<-Jtendant any knowledge of their irregularity j for when they were obtained, a general Miof prevailed that Greene *116county comprehended the land in dispute. 5 and among *be depositions in the cause, there is one of an experienced surveyor, according to whose opinion, it would cvetJ now appear to do so, if the line were correctly run. The sum of the case then, is, that the Defendant settled upon land, under titles from the State, and those claiming under it. honestly believing that the land had been properly granted j ami after a possession of some years, the Complainants, discovering that the lands were situated not in Greene, hut in Buncombe county, made an entry and obtained a grant, and now pray that the p-arits under which the Defendant claims, may be located, or that he may be compelled to convey to the Plaintiffs. Admitting the fact to be so, it requires no argument to prove that a Court of Law is fully competent to decide upon the case, apon general principles, I should think 5 hut, certainly, by the express creation of jurisdiction by the act of 1798, in all cases where the patent has irregularly issued, through the mistake of the public officers, or of the party claiming under it. Cases of fraud depend upon other principles, and the authorities sustain the jurisdiction of this Court, where a grant has been fraudulently obtained to the injury of the State or an individual. This is one. of the most antient heads of equitable jurisdiction, where, from the secrect nature of the transaction, a discovery by the oath of the party is necessary. But where a fraud can be clearly established, it will also be relieved against at law — (1 Burr* S96 — -4 Inst. 84.) But this Court would certainly transcend the •proper limits of its jurisdiction, if it were to set aside a title upon which- a common law Court is quite competent to decide, in favor of persons who cannot shew a superior equity to the land in controversy.

I have not thought it necessary to enter upon a consideration of the common law jurisdiction of this Court in cancelling and repealing letters patent, because it seems to he clear that the act of 1782 neither did, nor intended to confer such powers j but is confined to such *117Iiroceedings as belong to the equity side of the British Chancery Court, in the form of bill answer and deposi-1 lions.

Per Curiam. — The bill must be dismissed.