
    The Comm’rs of the Town of Brunswick, et. al. vs. Urbanus Dart and Wm. B. Davis.
    
      In Equity,
    
    The fact that fraud has been committed, will not per $e, entitle complainants to redress in á Court of Equity, if a plain ami adequate remedy at law can be afforded them.
    Demurrer sustained for want of equity, where it appeared by complainants’ bill, that they held the senior grants to the land in dispute, and that the junto?' grants issued by the State erf Georgia to defendants, were examinable collaterally at law, the State having no title to the lands thus granted, and such grants having issued contrary to the prohibition of a statute.
    
    Neither the legal nor equitable title to the vacant lands in the town of Brunswick resides in the Commissioners. If the State has made an improvident or mistaken grant thereof, the State only can take advantage of it.
   By BOBEBT M. CMABETON, Juágé.

THIS is a bill filed by the Commissioners of the town of Brunswick and ceHairi proprietors, (the Jacksons,) of lots situated therein, to set aside two grants issued by the State of Georgia to defendants, upon warrants obtained by them Oh head rights located on the town and common of Brunswick.' The bill alleges that in September, 1826, Urbanus Dart, of the county of Glynn, then deputy Surveyor, and Wm. B. Davis, by virtue of warrants issued on head rights by the Land Court of said county, surveyed 369-J acres of land within the limits of the town and commons of Brunswick,- in two separate surveys, both made ly defendant Dart in his .official capacity, in direct violation of the Acts of the Legislature in relation to said town, and.of the rights of the proprietors ; that Dart being threatened with a prosecution for these' surveys, and suit commenced against him, wrote a letter to one of the Commissioners, informing him that he would withdraw the warrants, and abstain from all further proceedings thereon :—that upon the faith of this letter and of the promise of Dart, the Commissioners did not prosecute him for his wrongful act in making these surveys—but that Dart and Davis, long after the said surveys were made, to wit, on the 17th September, 1828, without the knowledge of complainants and with intention to.defraud them,-and contrary to the promise of said Dart, obtained grants from his Excellency the1 Governor, founded on the surveys : that the Commissioners were deceived by the said letter and promise of said Dart, and took na steps to enter a caveat against the proceedings of said Dart and Davis, which they otherwise would have done—that said grants include the whole or the greater part of the town of Brunswick and the-public streets thereof, and that the whole of-the land imeluded therein, had been-granted or otherwise entirely disposed of by the State of Georgia, and' placed under the control and direction of the Commissioners, and that no part'thereof was vacant or subject to warrants on head rights at the time of the surveys of Dart and Davis: that said Dart and Davis now claim to hold the land thus granted, in violation of the rights of complainants as Commissioners and proprietors; and the bill then prays that the said grants may be declared fraudulent and' void, and be cancelled, &c.

To this bill the defendant Dart has demurred, (the defendant Davis not having been served with a copy of the, hill, &c.) assigning various causes for demurrer, the principal of which is, that the-bill contains not any matter of equity, wherein this Court can give-relief, and that there is a plain and adequate remedy at law.

It is urged in answer to the arguments adduced-in favor of the-demurrer, that whenever a fraud has been perpetrated-, you may come-into a Court of Equity, and particularly when-the fraud relates to-grants, and that this is the proper proceeding to set aside-letters patent.

Although it is undoubtedly true, that fraud is one of the great' sources of Chancery jurisdiction, it is not correct to say, that if is exclusively cognizable therein. It is, in many cases, cognisable in a Court of law, and sometimes exclusively cognizable there. (1 Story’s Eq. 68.) The fact, therefore, that fraud has been committed, will not per se entitle the complainants to redress in a 'Court of Equity, if a plain and adequate remedy at law can be afforded them. If the aid.of a Court of Equity is not indispensably necessary, to secure them from the violation of their rights, or the consequences of the fraud that has been perpetrated, they must seek their remedy in a proper tribunal. It will be proper, therefore, to examine this matter, in order that it may be ascertained whether the complainants may not thus protect themselves in a Court of Law.

It is argued for defendants, that ■the complainants, the Jacksons, by their own.shewing, have a legal title to the lots claimed by them; that the grants which they hold.are senior grants, and that therefore they cannot be affected by the junior grants to defendants; and that as defendants' grants are founded on warrants and sur-veys, obtained under the law of head rights, and can therefore embrace only vacant lands, that the lots held by the Jaeksons cannot be affected by such grants, and that they may be amply protected by a Couit of law; and I confess that .it seems to me, that these ■arguments are unanswerable. I eannwt conceive how the Jacksons ¡can be injured by these grants, or what relief they would seek from a Court of Equity- In an action of ejectment brought against, ¡or by the Jacksons, their elder grant would be sufficient to ensure or protect their rights—and If the State had no title to the lands granted to Dart and Davis, as the.complainants allege it had not, the matter is properly examinable at law; and this argument has greater strength, from the additional fact shewn by the complainants, that the Act of 1796 made it penal to attempt to run any part of the said town or commons of Brunswick, under any pretence whatsoever ; and that said grants were, therefore, by com. plainants own shewing, prohibited by statute and might therefore, be impeached collaterally, in a Court of law; in an action of ejectment. (See Patterson vs. Winn, 11 Wheaton’s Rep. 384, 5.)

L. S. D’Lyon and C, S. Henry, in support of demurrer—R. JR. Cuxler, contra,

And in reference to the title of the Commissioners, and to their right to come into Equity, to procure the cancellation of these grants to Dart and Davis, after the most careful and deliberate investigation of the numerous Acts relating to their authority, and to the town of Brunswick, it appears to me, that they have no right as Commissioners, to come into a Court of 'Equity, to set aside the grants made by the State; that neither the legal nor equitable title to the vacant lands in the town of Brunswick, resides in the Com{nissioner-s, and that if'the State has made an improvident or mistaken grant, the State only can take advantage of it. (See Jackson vs. Lawton, 10 John. Rep. 24.)

The derrrurrer must therefore be sustained, and the bill dismissed.  