
    WILSON ASSIGNEE vs. ROBERTSON.
    If the jury find that a man had no such land as he had bound himself to covey, the obligee is entitled to recover the value of land, at the time of rendering the judgment.
    The defendant had given an obligation to make, Clark a deed in fee simple, to six hundred and forty acres of land, his choice out of 2000 acres on the waters of Stone’s river, to join some corner of the tract.
    The bond was given about twenty years, ago, and the title waste be made so soon as grants should issue. It did not appear that the defendant had any such land on the waters of Stone’s river. The only, question was, as to the measure of damages—whether it should be the value of the land, at the time, the bond was given, when grants were obtained, or at this time.
    The jury found a special verdict. That neither at the time of the contract, when grants issued, nor at any time since, has the defendant had such land as the bond calls for. That such land at the time the bond was given, and when grants should have issued, was worth, with the interest thereupon, $340; and at this time, $ 1040.
    Overton for the defendant,
    said, he was prepared with authorities to shew, that judgment ought to pass for the lesser sum. The special verdict does not find fraud, and the court cannot presume it.—If fraud had been found by the verdict, it would not be contended, that the larger sum ought not to be the measure of damages.
    
      
       See 3 John. 281. 1 John. 551, 1 Caine's R. 379. 7 John. 605.
    
   Per Curiam.

The jury have found that the defendant had not the land he contracted to convey—in contemplation of law, it was therefore a fraud. If the defendant had such land as he has attempted to prove (though he had not a legal title to it) if he offered to shew land, to which he was entitled by contract for locating—by shewing this, he may perhaps have relief in equity; but it having been found by the jury, that he had no title, there must be judgment for the value of the land as it was estimated at this time. 
      
       See 2 Hayw. 336, 334, 366. 3 Cr. 300. 1 John. 223. 2 Burr. 1110. Bull. N. P. 132. 2 Call. 95. 3 Caine’s R. 221. 4 Mass. 109. Hardin 41. Add. 23. 4 Dall. xx. v. 3 Call. 326.
     