
    CONSTITUTIONAL COURT,
    COLUMBIA,
    APRIL, 1802.
    Mounce v. Ingram, et al.
    
    In an action of trespass to try title, extrinsic evidence is not admissible to invalidate a grant, by shewing that it had been obtained by fraud, or mistake, or that an undue priority had been given to it. [Vide 2 Bay, •454. 1 Brev. Dig. 199, note, S. C. Huggins v. Brewer,2 Bailey, 25,]
    This was an action of trespass to try titles to land, tried in Lancaster district, before Johnson, J., in the spring of 1801. The plaintiff claimed under a grant from the State, to one Douglas, which was dated the 1st of June, 1786; but the figures placed to signify the’year, appeared to have been altered from 1785 to 1786 ; and in the margin of the grant was written a memorandum, signed by the deputy secretary of State, who transacted the business of the secretary, explaining the cause of the alterados, by specifying that the grant, after it was made, and dated, and ready for the Governor’s signature, was delayed to June, 1786, by means of a Caveat, which had been interposed, without mentioning who had caveated the same.
    The defendants produced a grant from the State to one Winn, ■under whom they claimed, for the same land, bearing date in April, 1786.
    The plaintiff then offered evidence to prove that the grant to Douglass had been caveated, and delayed, fraudulently, by Winn, in order that he might thereby obtain an elder grant; and to shew that the secretary of State had committed a mistake in the dating of the grant to Douglas, having dated it of the time when it was signed, after the determination of the caveat, whereas it ought to have been ante dated as of the lime when the caveat was inter-' posed : but this evidence was refused, and the jury found a verdict for the defendants.
    Brevard, of counsel for the plaintiff,
    brought up to this court a motion to have the verdict set aside, and a new trial granted, on the ground, that the evidence which was offered to impeach the priority of the grant to Winn, was improperly rejected.; which motion was fully argued and discussed, by Branding, for the plaintiff, and FARCoNER.and Mathis, for'the defendants, and was finally determined in November, 18.02, against the motion, by all the judges, except Brevard, J., who had been counsel for the plaintiff, and had brought up the motion.
    
      arSumenl; for the plaintiff was as follows :
    The evidence offered in this case to impeach the validity ot the’ grant, under which the defendants claim, was refused admission on ^le Srountb that a grant under the great seal of the State, is a record of such absolute'verity, as to be beyond all sort of contradiction in a court of law; and that the operation of a grant improperly issued, can be avoided by the court of equity only, if the same can be avoided at all. I shall endeavor to shew that the courts of law here, are the proper tribunals to decide on the validity of grants, in all cases where the question comes .judicially before them, in causes within their jurisdiction.
    A notion seems do have prevailed, that, because in England, the lord chancellor is empowered to repeal letters patent by scire facias, the same mode of proceeding must be followed here, and that the judges of our court of equity have a similar authority. But even admitting this to be the case, which I conceive it is not, must it be thence concluded, that the courts of common law, may not, where' the question is drawn in collaterally, affecting a matter in judgment before them, examine and decide it according to the principles of law and natural justice 1 Without adverting to the law of England on this subject, there seems to be no reason founded in legal principles, or on policy, to forbid the courts of law the exercise of such a jurisdiction,' wherever the facts can be sufficiently ascertained by the ordinary methods pursued at law.
    It is a principle, now universally known and acknowledged, that the courts of law, not only here, but in England, have a concurrent jurisdiction with the courts of equity in matters of fraud. See 3 Rep. 77. ] Burr. 396, 7. Cowp. 434-. Pow. on Con. 183-l Fonbl.Eq.110. It would be very strange and absurd, if this were not the case. It ,is often necessary to resort to a court of equity, because that court furnishes a mode of relief beyond the jurisdiction of the-courts of common law, and possesses a means of detecting fraud, which the courts of law do not. But frauds and mistakes, when detected, may be equally relieved against, in either.
    I shall attempt to shew, 1. That the judge of our court of equity have no such jurisdiction, or power, as the lord chancellor in England exercises, by scire facias, for the repeal of letters patent from the crown. 2. That the courts of common law in England, do allow objections to the validity of grants, or letters patent, on the trial of causes before them, whenever the matter is material to the issue, and the real merits of the case: and that there have been decisions in the United States, and particularly in this State, to warrant the conclusion, that objections are admissible in our courts of law, under proper limitations and restrictions ; and that the evidence which was offered at the trial of this cause, and rejected, ought to have beén admitted.'
    1. Before we can judgé with sufficient knowledge of the subject," and determine with due accuracy, whether our courts of equity-have a power to repeal State grants, like to that which the lord chancellor in England has, it will be necessary to enquire intoj and understand, the origin and nature of that power,'which belongs to the office of chancellor in England, iri this respect. And it seems clear; from the best judgment 1 have been able to form, and from the best' information 1 have been able to collect on this subject, that no such power exists in any court in this State.' In England, the chancellor, as keeper of the king’s conscience, and keeper of the great seal, has a particular power, distinct from those powers which belong to his office as a judge of equity, for the repeal of grants, or letters patent, from the crown, which may be impróvidently granted, or unduly obtained. All such grants issue out of the king’s chancery, where the great seal is kept, upon some suggestion, or representation, which is there filed, and the great seal is affixed to them" by the lord chancellor. If the suggestion upon, which any such grant is issued, should be false, or if any mistake should be made in granting the same, which, if known at the time, would have prevented the issuing of the grant, the chancellor, whose duty it is to see that all such grants are rightly issued, has power to repeal any grant' which may not be fairly obtained, by scire facias, stating the ground of fraud, or mistake, upon which the king has been deceived, in suffering the grant to pass. In the exercise of this power, however, it must be observed,' the chan»' cellor does not proceed as a judge óf the court of equity, and by the rules of that court, but according to the rules of the common law. It is not necessary to multiply authorities to support this branch of the argument: I will take leave, however, to cite a few of the strongest that I have met with, and which fully decide the question in my mind. Lord Chief Baron Gilbert, in his treatise’ entitled *' Forum Romanum,” page 21, mentions, that “ when the power of the grand justiciar was broken,-' the chancellor,- Who Was also chaplain to the king, obtained the oficina brevium et cartarum regiarum. From thence' all extraordinary jurisdictions, touching granting charters, were returned into' chancery. To grant lands from the crown, if was necessary they should have patents under the great seal. Hence, if a scire facias, issued to repeal any ptf. tent, it was returnable into this court, because there, such patent»' rtvere registered, and there, the party came in, and pleaded before the' chancellor. But if they pleaded to issue, the chancellor could not award a jury process, but was to carry the record itself, over to th e king’s beuch, who awarded the jury process upon it; and' after wards, upon the verdict, gave judgment.”
    It fs laid down by Blackstone, in his commentaries, generally a> that tile power which the court of chancery exercises in the repeal Of letters patent, is not an equitable, but a common law, jurisdic. tlon. 3 Bl. Com.' 47, 261. So also is 1 Str. 151.
    Loud Coke, in his 4 Inst. 88, states, particularly, in what cases' the scjre Jadas lies to repeal letters patent. “ When the king-grants t.he same thing to several persons, by several letters patent, íhe former patentee shall have a scire facias to repeal the second.” In all otbeU cases, it seems the scire facias issues in behalf of the-king, by virtute of his prerogative, jure regio.
    
    In Com. Dig. Patent, F. 6, and Dyer, 197, it is laid down, that the' wi'it of scirefacias is returnable either into chancery, or into the king’s1 bemsh. When it iS returned into chancery, the party either suffers' judgment by default, or demurs, or takes issue on the facts. In the two former cases, the chancellor gives judgment; in the latter, he seiuds the issue into'the king’s bench to be tried. See, also, 4 Inst. 73. 6 Mod. 2¿9. And this agrees, too, with what has been1 before citO-d from Gilbert.
    It is, thei "efore, clear, that where the invalidity of a grant de. pends on extrinsic evidence, as in the present case, it has been usual to send t.he question to be determined by a jury iu a common law court. If there ¡s no suit depending, in which the question is necessarily involved, it may be proper to apply for relief in equity - not for the purpose of obtaining a cancellation and repeal of the contested grant, but to .be protected against its unjust operation. But where the question comes incidentally, and is connected with the merits of the case, there geeras to be no sufficient reason why the court should decline to decide it; since, by so doing, the party is turned round to equity, where, after he has commenced and pur. sued his suit to a certain stage, he is turned back again to a court-of law, in order to have the matters of fact, in dispute, determined by a jury, before the court of equity can make a final decree. I do not mean to deny the power of a court of equity to give relief in many cases where grants have been unduly issued, to the prejudice of other grantees of the same land, or other innocent persons ; .gil I mean to contest, is, the power of the court of equity to repeal .or cancel such injurious grants, in the way the lord chancellor in England is authorised to do, by scire facias.
    
    If we enquire into the jurisdiction of our courts of equity, we shall find, I believe, that this power was never vested in them, .either expressly, or by necessary implication.
    Our State constitution has vested the judicial power “ in such superior and inferior courts of law and equity, as the legislature Anal), from time to time, direct and establish.” By an act of the legislature passed in February, 1791, it is declared, that “all laws then in force, relative to the court of chancery, shall be continued in force.” There is nothing in any former act in force, relative to the court of chancery, I believe, which gives to that court the power in question, nor do I think it was ever contemplated by the government of this country, to vest any such power in any court. The act of 1721, establishing a court of chancery, declares, indeed, that that court shall proceed according to the known laws and customs of Great Britain, and to the rules of the high court of chancery in England. But the general principles of the laws of Eng. land, and the rules of the court of chancery there, have little or no concern with this office or jurisdiction of the chancellor in the repeal of letters patent. In the exercise of that peculiar jurisdiction, he acts as keeper of the great seal, who being intimately acquainted with the reasons which prevailed in obtaining the grant, is best able to judge whether those reasons were true or fraudulent; and as keeper of the king’s conscience, which cannot be easy while a a. subject suffers injustice, in consequence of deception employed in .obtaining the grant.
    But in this State, the method of proceeding in the court of equity js by bill, or petition. A scire facias is a process not known to that court. In England, the grants of the crown issue out of chancery, where the great seal is kept. With us, grants under the great seal of the State, issue out of the secretary’s office, where .they are registered, and where the great seal is lodged. The secretary of State has the custody of the great seal; and it is especially his duty to deliver out all grants, after they have been signed by the Governor, to the several grantees. A.. A. 1784, P. L. 334. A. A. 1785, P. L.' 399.
    Under the former constitution of this State, if any fraud appeared in the entry, warrant, &c. of land, the Governor and council had authority to determine any question respecting the same. A. A. 1784, P. L. 335. But the executive has no such power noyr. 
      Such a power ought to be lodged some where. Where does it re? side ? It must, of necessity, I think, belong to the courts of law and equity; and may be exerted by them, respectively, whenever occasion requires, in the determination of causes properly depending in them. The jurisdiction respecting caveats, belonged formerly to the Governor and council. The judges of the common law courts are now empowered and enjoined to exercise this jurisdiction. Doubts were entertained by the judges for sometime, concerning the power thus vested in them, and the obligation imposed, of hearing and deciding caveats ; on the ground, that the origin of this jurisdiction was ecclesiastical, and not civil; and that it was a business foreign from the administration of justice, by the rules and principles of the common law; and foreign from their duty in the distribution of law and justice in their courts. They have, however, latterly, been induced to acquiesce in the design of the legislature ; and I presume there is now little doubt, but that the exercise of this branch of jurisdiction by them is not only constitutionally and legally right, and compatible with their general duties, but very convenient and beneficial to the public. All these reasons considered, and many more which might be mentioned, will warrant us in drawing this conclusion ; that the courts of equity in this State have no authority to repeal grants under the great seal of the State, by spire facias, or other legal process whatsoever.
    A party injured by the improper issuing of a grant, may» very properly, perhaps, be relieved in a court of equity, on the ground pf fraud, Imposition, collusion, or mistake. jBut in such case the grant would not be cancelled and destroyed, or repealed in toto ; the court would, I conceive, only relieve against its operation, sq far as concerned the matter in controversy, so as to do equity between the parties in litigation only, but no further. And what in the name of justice can be advanced, to convince a sound understanding, that the courts of law ough,t npt to be allowed the exercise of a concurrent jurisdiction in similar cases, whenever sufficient legal evidence can b,e adduced according to the rules pf law, te evince the fraud or mistake ?
    2. I shall now proceed to shew, that the courts of law in Eng, land, and also in the United States, have allowed the invalidity of grants to be objected to in trials at law ; and that they have deemed themselves competent to examine into and decide on the sufficiency, operation, and legal effect of such contested grants, whenever such examination has appeared necessary to the justice of the ease on a trial before them.
    
      Records, for the avoiding of infiniteness, which the law abhors, .(according to Lord Coke, 4 Rep. 71,) are considered as so high .and sacred, that they import in themselves inviolable truth. The .law attributes so great honor and credit to them, that they shall be .tried only by themselves, and not by the country. But this relates, as I apprehend, only to their admission in evidence. A record is without other proof. If, however, it can be proved, that a grant, (which is a record,) has been fraudulently, or otherwise improperly obtained, the validity and effect Of that grant may be disputed, and examined into.: and if it is found fraudulent, or that it has been obtained through mistake, the party claiming under it, ought not to derive any benefit from it to tlie prejudice of any other person, who, .without such fraud .or mistake, would have a good title to the thing granted. The grant in such case, is not repealed, but only relieved against, or declared void, pro tanto, or so far as it operates unjustly through,such fraud or mistake.
    This doctrine is, I conceive, fairly deducible from a variety of decisions, and cases of high authority, to be foand in the English law books, some of which I shall beg leave to refer to particularly ; pnd I think I shall be .safe in laying it down as doctrine introduced into this country, at the time of its first settlement, and never controverted since.
    Arthur Legat’s case, reported by Lord Coke, 10 Rep. 109, is a strong case in our favor on this head. It was an ejectione Jirince. The special verdict stated, that king Philip, and queen Mary, were seized of the land, in fee, in right of the crown, and by letters patent under the great seal of England, in consideration of services performed, by Sir George Howard, gave and granted to him the land whereof, &c. And the question was, whether the said laud passed or not, by the grant. It appeared, that the grant had been obtained by a false surmise of the party to whom it was made, and it was declared void for that cause. In that case, it was said, that a grant of land is supposed to issue on the representation or suggestion of the patentee, that he has found lands which are concealed from, and unknown, to the king, and of which he has not any rent <?r profit. This is precisely the case now before this court. The land in question was improperly granted to the lessor of-the defendants, on a presumption which had no foundation, viz. that the land had not been located by another, who was entitled to a grant of it. It is further laid down in Legat’s case, that a grant is supposed to issue on the suggestion of the party, &e., and, therefore, myst be considered as conditional, provided the suggestion be true. Hence we may infer, that if the suggestion is not true, the grant is void ipso facto* -
    This doctrine is further supported by what is said and resolved in the case of Alton Woods, in 1 Rep. 41. It is there said, that although a scire facias may be brought to have letters patent repealed, yet, in law, such grants are void ab initio.
    
    In Barwick’s case, 5 Rep. 94, the defendant claimed under let? iers patent from queen Elizabeth, and the court resolved, that as the valuable and material consideration of the said letters patent was false, and the queen deceived, the letters patent were' void, Barwick’s case, and the case of Alton Woods, were informations for intrusion, which is a proceeding in the court of exchequer, for trespass committed on lands of the crown, in nature of an action of trespass, on the law side of that court. 3 Bl. Com. 261.
    The language ofthecourjt, in the case of Alton Woods, shews in what light grants, unduly obtained, were regarded by the courts in England. “ If the king is deceived,” (say the judges,) “ or mistakes the law, the grant is void ; and it is not honorable for the king to grant the same possession to one, which he or his progenitors have granted to another.” And the grant was, in that case, declared void. £ Rep. 48.
    So in Legal’s case, it is said, that perpetuties, monopolies, and patents, obtained on false insinuations, are born under an unfortunate constellation ; for as soon as they are brought into question,, judgment has always been given against them, and none ever given for them.” 10 Rep. 118. And, that “all of them have twe inseparable qualities, sc. to be troublesome, and fruitless.”
    These quotations serve, to shew, very clearly, I think, that evidence extrinsic of the grant itself, has been allowed in the courts of common law jurisdiction in England, in various cases, to impeach its validity and operation. And there cannot be any solid' ground of distinction between cases where a grant has been obtained fraudulently, and cases where it has issued by mistake: for mistakes are not a head of frauds in the consideration of a court-of justice.
    In the case of the King v. Pasmore, 3 T. R. 212, the question concerning the validity of a grant from the crown was much agitated ; and it seems, that the judges considered it as a question which might properly be made and determined on a trial at law. That was a proceeding on an information in the nature of. a quo war* ranlo.
    
    Thus far, then, it. appears, this doctrine is supported by the au-ihorities produced from the English law books: and it seems clear, that such was the law of England on this subject, at the time when this country was first settled, and ai’ter wards when the system of jurisprudence,' which Was adopted, and has prevailed here, came to • be established under the royal government of Great Britain.
    Let us now proceed to enquire, whether this doctrine has ever been recognized by any sufficient judicial authority in this country 5 ór corroborated by decisions founded on a similar principle ; or to be presumed, from the authority of opinions of judges of reputation in the United States. In 1 Wash. Rep. 117, it is reported as the opinion of the venerable and celebrated Chancellor Wytiie, in delivering his decree in the case of White v. Jones, in the high court of chancery in Virginia, “that if the grant to Wood Jones was obtained surreptitiously, when the officer, to whose function the transaction of that business belonged, did not know part of the land, comprehended in the grant, to have been appropriated or Claimed by another, who in not perfecting his title, had been in no default; or if it waé obtained by collusion between the officer and the grantee; this, so far as it tended to intercept the right of another, was void, and proper and adequate remedy lay at the common law : and this court can discern no ground for application to a court of equity/’ See 3 Tucker’s Bl. 201, note 10. And upon this principle, viz., that the party might have adequate redress at law, the bill was dismissed. It is true, the high court of appeals afterwards reversed this decree, as appears by Judge Washington's report of the case, but not on the ground, that a court of common law was incompetent to examine and decide the' question, if the same had been brought properly before it; but because the question had been brought properly before the court of chancery, which court having an equitable, and concurrent jurisdiction with the courts of law, in such cases, ought to have taken cognizance of, and decided it.
    The same question has been considerably agitated in the courts' of law in North Carolina. It appears by Haywood’s Reports, that a majority of the judges have decided, that the validity of a State grant of land, under the great seal, cannot be questioned on a trial at law to try titles to land ; although the reasons and arguments, on which this decision is founded, do not appear. Hay w. Rep. 135, 375.-But on the other side, that learned and judicious reporter has given the arguments of counsel in opposition to such decision,(which I take to be his own,) and which, in my judgment, are very cogent, and convincing, and sufficient to warrant a different cói’ú elusion. Hayw. Rep. 139, 130, &c. 498.
    I come now to produce the authority of an adjudged case, de¿ términed in this State, by an honorable judge, who has favored the public with a report of it. I allude to' the case of the lessee of Tarrant against Térry, 1 Bay’s Rep. 288'. The decision’ in that case, is, I apprehend, well founded on the principle I have contended for : and as it is of the first importance to society, that the rulés of law, on which our lives, liberties, and property, depend, should be settled, and remain fixed and uniform; and not liable tó bé shaken, and to fluctuate with every change of opinión, and every variation of immaterial circumstances ; it is" devoutly to be hoped, that this adjudication has’ furnished a precedent that will grow into a permanent rule, and govern' all' future analogous cases, and all questions' turning on the same principle.' Tho case of Tarrant and Terry, which was an ejectment to try title, was," in substance, as follows: Lewis, a deputy surveyor, was employed bf Tarratit, under whom the plaintiffs claimed, to survey a tract of land. He surveyed the land, and' at the same time another tract adjoining for himself, Sometim'e after having rha'de these surveys, he discovered that the survey he had made for Tarrant would comprehend a mill seat, which he was témpted to obtain for himself by a fraudulent contrivance ; and oh the plat of survey he had made for himself, he represented the mill seat in question, after extending the Jinés of liisi tract on the plat, so as to reach the mill seat,- and- then made haste to procure a grant for the same, before Tarrant, who had no suspiv cion of the intended fraud, obtained his. These facts' appearing on" trial, (for the learned judge admitted them to be given in evidence,to impeach the validity of the grant to Lewis, under whom the defendant claimed, which appeared to be prior in date to the grant to' Tarrant,) the court instructed the jury, if they believed the evidence, to consider the grant to Lewis, void, so far as it operated to' defeat the grant to Tarrant, on the ground of fraud and circumvention : and the jury found accordingly.
    Upon the whole, therefore, I may venture to conclude, that on principles of law, policy, and convenience, and on the authority of precedents, and adjudged cases, and opinions of judges and lawyers of high respectability, the validity and operation of a grant of land, under the great seal of the State, maybe contested on the ground of fraud or mistake ; and that extrinsic evidence may be resorted to, if necessary,, to establish such fraud or mistake, on a trial in a court of sjptnipc® l?,w jurisdiction,, wJrei'e tfee validity of tfre grant is essential So the merits of the ease in dispute. First. Because our court of equity cannot proceed by scire facias, to recaí grants improperly issued, or by ether process to repeal or invalidate them, similar to that used by the chancellor in the petty bag office in England. Secondly. Because the court of equity, as such, has no jurisdiction in matters of this sort, except on the ground of fraud, mistake, or trust; where there is no adequate legal remedy in the power of ihe party injured by the sinister grant. Thirdly. Because, though a court of equity may have jurisdiction in all cases of this nature, to decide on the validity and priority of public grants, yet there can exist no sufficient reason to shew, that the courts of common law have not equal and concurrent jurisdiction, in all cases where sufficient legal evidence can be adduoed to detect and expose the fraud or mistake. There can be no interference or clashing of jurisdiction between the two courts, on such occásions, any more than on other occasions, where it is certain and notorious that they may exercise concurrent jurisdiction. The only question that can arise between them must be relative to the mode of relief, which will determine whether the remedy shall be merely legal, or equitable and legal.
    But whether the extrinsic cause for invalidating a grant be examined in the one court or the other, it seems highly proper and ne. oessary, that the matters of fact involved in the case, should be tried and determined by a jury.’ It is proper and necessary on the principles of our constitution, and the spirit and practice of our law. And should the question be depending in equity, there is no doubt but that an i'ssiie would be directed to try the fafcts, by a jury, in a court of law. Where, therefore, the question depends entirely on, facts, which can be proved without resorting to a court of equity, it seems a strange and absurd notion to hold, that it cannot be determined on the trial of an action at law, in which the question naturally and properly occurs, and when the decision of it is essential' to the justice of the case. . , ,
    
    The courts of law and equity are not such strangers to each other, as, by many, are supposed; although not so intimate and familiar, as I think they ought to be. Their objects are the same» The general principles on which their decisions are founded, are alike. The rules by which their objects are promoted, are in general the same. In relieving against fraud, there are many cases in’ which they may exercise a concurrent jurisdiction. In many cases a party may have his election to proceed in one court or the cither, for redress; as where he may sue for a specific performance an aSreement to equity» or at law for damages for a breach of" such agreement. There is great safety and convenience in such a liberal exercise of jurisdiction, under the judicious restraints that ^ave ^een l°n& known and observed f and I can discern no possi« ble evil that could result from the application of it to the present case. The point it would go to decide is this : that if the grant in question, obtained a prior date to Douglas’ grant; either hy means of the caveat being fraudulently interposed, for the purpose of suspending the grant to Douglas, till that to Winn coiild be passed ; or besause the officer, intrusted by the public with the issuing, out the grants, committed a mistake in the dating of the grant-to- Douglas, banking the same to bear date of the time when it was actually issued, and not of the time when it ought to Have issued, in oase no' obstacle had intervened, by occasion of the- caveat,- it should be' deemed and held invalid, and void, as to the purpose for which it Was brought to prove. It would go no further. Where would be-the injustice, or danger, of such a decision, if the facts should be' fully proved ? There could be none.
    If the court should be with me, in this opinion, I shall hope to’ obtain, on this occasion, in behalf of my client, the benefit of a new trial; which I beg leave, with great submission, to move for.
    The argument in behalf of the defendants, went principally oft-the ground, that it would be impolitic and dangerous, to allow any objections to the validity of public grants, except such as are ap. parent on the face of them. That the admission of extraneous and parol evidence dehors the grant, would open a wide door to perjury and fraud, and produce infinitely greater mischiefs, and injustice, than it would be the means of avoiding. That estates, and well established titles, would be rendered insecure and precarious, by the fraudulent and cunning designs of evil minded persons, who would thus be every where greatly tempted to overthrow the rights of the legal owners, by setting up antiquated claims, founded on some supposed fraud or impropriety in obtaining the first patent right from the public. And that parol evidence, to contradict and impugn a deed, is inadmissible in all cases ; and, therefore, a fortiori to impeach a grant under the seal of the State, which is of record, and cannot be avoided, or ought not to be, but by some evidence of as high a nature. That the proper relief would be in a court of equity, not by scire facias, to repeal the contested grant, or to invalidate it, but to compel the party, who has practised the fraud, and is in possession of the land, to convey to him who has suffered the wrong. Rut that BQ su<?b relief gould be given in this casé. because the defendants are innocent purchasers for valuable consideration, and no way guilty or cognizant of the fraud, or mistake, •which has been alleged : and it would be extremely mischievous, even in equity, to allow purchasers, not privies to the fraud, to be harrassed and disturbed by any such objection to their legal title.
    J3landing, for the motion. Falconer, and Mathis, contra.
   The court gave no opinion with respect to the propriety or efficacy of an application to a court of equity iu this or any similar case. They merely decided that the evidence offered at the trial of this case, in the district court, was properly rejected, for the reasons urged by the defendant’s counsel; and that the courts of law in this State, had often refused to admit parol evidence to invalidate grants of land under the great seal of the State, or letters patent from the king of Great Britain, under the authority of the provincial government: and they could see no reason, now, to induce ;iham to change their opinion, and establish a different rule of law.

Motion refused.  