IN EQUITY.

#### Kirby & Grice v. Newsance & Aycock.

From Johnston.

When an issue is submitted to a Jury in Iviiv ; ..nd dieir answer to it is insensible and contradictory, the Court ¡-<mi d not make a decree, but should older live is ue to be submit? . , . fmrtUeT Jury ; and in such case, wiien it comes before this Com", ti'vther party shall recover his costs in this Court.

The, bil! set forth, that to secure the payment of two small judgments, obtained against the Complainant Kirby, and assigned to the defendant Nowsance, it was agreed in 1806, between i'sem. that Kirby should convey to Newsance. a ■.■«’cable tract of land, of which Kirby should ei;.d- the possession, and Newsance receive the fruit of ‘1 orchard thereon growing, in lieu of interestj and iii.il whenever the judgments should be, paid up, that then the lands were to be entirely free from any claim of Newsance ; that in furtherance of this agreement, as the Complainant Kirby believed, a deed was tendered to him by Newsance for his execution, and at the same time, as he, Kirby, was illiterate and unable to read or write, Newsance informed him that the paper was proper and necessary to carry into execution their agreement, and on this representation the Complainant, Kirby, executed it; that the Complainant, Kirby, had since discovered the said deed to be, on its face, an absolute conveyance to Newsance of his lands, without any condition or reservation, and it was charged that his signature to the paper was obtained by fraud and misrepresentation ; that the Complainant, Kirby, continued to hold possession of the land until 1 :> 10, when Newsance brought against him a writ of ejectment, and the Complainant believing that he could not be permitted, to defend, unicss he paid the amount of the judgments before mentioned, (a thing which his poverty prevented him *106from doing.) made m> defence, and he was turned out of PÜSSCKS*0U News', nee. The bill then stated that, in 1811, the (>eieudai'i, Newsance, conveyed the land to ^¡)e 0^,61. Oofeudanb Ay cock, who purchased with full knowledge of the agreement, which had been made by Kirby with Ncwvsahee; that the Complainant, Kirby, for good and valuable consideration, bad conveyed his interest, right, and tie in the said land, to the other Complainant, Grice, and that Kirby & Grice, both individually and separately, had applied to the Defendants in a friendly manner, and liad tendered to them the amount of the judgments, previous to the ejectment by Newsance, and requested a re-conveyance of the land, which was refused. The bill prayed an account of the rents and profits, since the land came to Defendant’s possession, and after payment of - what was justly due, a re-conveyance.

The Defendant, Newsance, by his answer, denied the agreement as set forth, and affirmed the contract to be for an absolute conveyance.

'The Defendant, Ay cock, answered that he was a purchaser without notice.

Among the issues submitted to the Jury, was the following, viz:

“ Was the deed from James Kirby to Joel Newsance, in the bill mentioned, obtained by fraud and misrepresentation ?”

The Jury to this issue responded, that it was obtained by fraud, and not by misrepresentation, and they also found that Ay cock was a purchaser, with notice of Kirby’s equitable claim.

On this finding, the Court below refused to make any decree,' without, the finding of further facts. The Complainant’s counsel declined submitting any other issues to á Jury, and moved for such decree as the finding would authorise, whereupon the Court dismissed the bill witli costs, and the Complainants appealed.

*107Henderson, Judge.

I cannot perceive to what acts of fraud the Jury refer in this verdict. The fraud charged, is in representing that the deed was in pursuance of, and according- to the contract of the parties, ■when in fact it was not. The Jury find that the deed ■was obtained by fraud, as charged in the bill, but not by misrepresentation. It appears to me, therefore, that it involves a contradiction, and so far from satisfying the conscience of the Court, as to the facts of the transaction, it rather clouds and obscures them. This part of the verdict should, therefore, he set aside, and the question submitted to another Jury $ for the Court should not have proceeded to a decree, however importunate the counsel for the Complainant might have been, until all the important facts were either admitted or found by a Jury. The order of dismissal must, therefore, be reversed, and the cause remanded, with directions to submit the issue before mentioned, to another Jury. Neither party to recover their costs in this Court.

TaOíGR, Chief-Justice, and Ham., Judge, concurred.