
    White v. Jones.
    October Term, 1792.
    Supersedeas — Nature of — Reversal of Decree — Restitution. — A supersedeas is sometimes an auxiliary process, but most commonly it is one by which the record of an inferior Court may be removed before a superior one for revision. In the former case, it can have no effect after the decree or judgment is executed, though the suit may still goon ; and if a reversal take place, a writ of restitution will be awarded.
    Grants — Fraud in Obtaining — Jurisdiction of Equity.— Where one person fraudulently obtains a grant in preference to another, having a prior equitable title, a Court of equity has jurisdiction of the case, and can afford the most ample relief.
    This was a suit, instituted originally in the County Court, on the Chancery side, by the appellant. The bill states: that the complainant in 1761 or 1762, purchased a tract of land from H. Hatcher for which he paid a valuable consideration. That this land was surveyed for the said H. Hatcher in 1740, and that a patent for the same was made out on the 17th August 1756; but, on account of a dispute then depending before the king in council, respecting a claim, set up by governor Dinwiddie, oí a pistole for signing patents for lands; this patent was so long withheld from H. Hatcher, that the land became forfeited for non-payment of quitrents, and for want of seating. That the complainant, in order the better to secure his title to the land, petitioned for the same as lapsed, and with the consent of H. Hatcher, obtained a patent in his own name in 1764.
    That the defendant in 1743, obtained an order of council for surveying 2000 acres of land, including the land in question, and pending the above dispute between Virginia and governor Dinwiddie, fraudulently paid the pistole fee demanded by the governor, and obtained a patent. The prayer of the bill is, that the defendant may be compelled to relinquish his title to, and possession of, the land in dispute, to the complainant.
    *The Answer of the defendant, the heir at law of the original patentee, relies principally upon the want of equity in the bill; and denies notice of Hatcher’s survey.
    The case coming on upon bill and answer, together with the certificate of survey, the order of the governor in council, and the grants before mentioned, read as exhibits, the plaintiff obtained a decree for the land in the County Court, which was reversed by the High Court of Chancery upon a petition of appeal: the decree of reveisal is in the following words, to wit: “This court is of opinion, that the appellee’s title, if any he hath, to the land in controversy, must be supported on this foundation: That the grant to Henry Hatcher operated retroactively, giving to his title like vigor as if the consummation -thereof, by the grant, had been cotemporaneous with the commencement, which preceded the commencement of the appellants right; or on this other foundation: that the grant to Wood Jones was obtained surreptiously, 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 was obtained by collusion between the officer and the grantee; and upon supposition that the grant to Henry Hatcher by relation, was prior in effect, although posterior in date, to the other, or that the latter was fraudulent, this, so far as it tended to intercept his right, was void; and the appellees remedy in a court of common law was -proper and adequate; and this court, discerning no ground for application, by the appellee to a court of equity, — especially, when so great a length of time had elapsed, after the commencement of Hatcher’s title, before any one appeareth to have attempted to assert it, and the manner in which it was derived to the appellee, are remembered, — -is of opinion that Ihe said decree of the County Court, by which the appellee recovered the said land against the appellant with costs, is erroneous; and therefore doth reverse the said decree; and doth adjudge, order, and decree, that the bill of the appellee be dismissed.”
    From this decree, there was an appeal.
    
      
      Supersedeas — Reversal of Judgment — Writ of Restitution. — It is well settled, that after judgment has been executed, a supersedeas, writ of error or appeal may lie. and upon reversal the appellant may have a writ of restitution of what he has paid. Brskine v. Henry, 6 Leigh 384, citing White v. Jones, 1 Wash. 118. The principal case is also cited for the above in Hudgins v. Marchant, 28 Gratt. 183 : Morriss v. Garland, 78 Va. 229 : Wingfield v. Crenshaw, 3 Hen. & M. 252; Hite v. Wilson, 2 Hen. & M. 285. See Burnley v. Lambert, 1 Wash. 308; Stanard v. Brownlow, 3 Mnnf. 229.
    
    
      
      Grants — Fraud in Obtaining — Jurisdiction of Equity. —For the proposition that, where one person fraudulently obtains a grant in preference to another, having a prior equitable title, a court of equity has jurisdiction of the case, and can afford the most ample relief, the principal case is cited in Depew v. Howard, 1 Munf. 300; Noland v. Cromwell, 4 Munf. 168,172,174; McClung v. Hughes, 5 Rand 483, 486, 489, 505 ; foot-note to Hambleton v. Wells, 4 Call 213; foot-note to White v. Jones, 4 Call 253 ; Jones v. White, Wythe 113.
    
   The PRESIDENT

delivered the opinion of the court.

It was objected to by the counsel for the appellant, but the decree _o£ the County Court having been carried into execution by the return of an habere facias posses-sionem, executed, the petition of appeal was made too late, and ought not to have been granted, since the supersedeas thereupon awarded, could have nothing to operate upon.

*A supersedeas in England, is merely an auxiliary process ; and so it is, in some instances, in this country. But in general, it is a mode by which the record of a judgment of an inferior court, is removed before a superior jurisdiction.

When merely auxiliary, it can have no effect after the decree, or judgment is carried into execution; since it can only stay the proceedings in the state in which they are; but yet the suit goes on, in the supe-riour court, by the other pirocess; and if the judgment be reversed, a writ of restitution issues, to restore the party to that, of which he had been dispossessed by the execution.

Where the supersedeas is the only process, by the laws of this state, it may have one, or both of those operations, as the judgment happens to be executed or not.

At law, a party may appeal at the time the judgment is rendered; or he may after-wards obtain a writ of error, which, it is admitted, may issue after the judgment is executed.

Upon the merits, though the court is of opinion, that the decree of -the Chancellor ought to be affirmed, yet we do by no means coincide with him, in the reasons and arguments upon which he seems to have grounded his opinion.

The plaintiff has stated a very fair and proper case for a Court of Equity. — He was a purchaser, against whom the defendant unfairly and fraudulently obtained a preference ; and in questions like this, where fraud is suggested and proved, courts of equity have competent jurisdiction, -and can afford the most ample and adequate relief. — But in 1hisca.se, the plaintiff not having supported the allegations in his bill, which charge Wood Jones with fraud in obtaining his patent, this court is of opinion, that there is no error in the decree, and that it must be affirmed with costs. _  