
    *White v. Jones.
    
    [October, 1792.]
    (2 Am. Dec. 564. )
    Fraud- — Jurisdiction of Law and Equity.- — Courts of ' equity, and courts of law, have concurrent jurisdiction in cases of fraud.
    Patent-Fraud — Jurisdiction of Law. — And a court of 1 aw can avoid a patent for fraud in obtaining it. Proof of Fraud. — But neither can afford relief, unless the fraud'be proved.
    Appeal — Petition after Writ of Execution. — A petition of appeal from the county court to the high court of chancery was allowable after the writ of execution was executed.
    Elisha White, on the 9th- of March, 1780, exhibited his bill in chancery to the county court of Charlotte, stating, That, in 1762, he purchased of Henry Hatcher a tract of 426 acres of land lying in that county, then Lunenburg. That he afterwards understood that Wood Jones had obtained and surveyed an order of council for 2000 acres, and ih-cluded therein the tract aforesaid, although Hatcher, as appeared by the surveyor’s books, had, in fact, surveyed it four years before Jones’s order of council was obtained: but the patent for it was delayed, until the 17th of August, 1756, in consequence of the dispute between governour Dinwiddie and the locators of lands relative to his claim of a pistole for signing patents: which occasioned the loss of the said tract of 426 acres for non-payment of quit-rents, and the failure to seat and cultivate. In consequence of which the plaintiff petitioned for it as lapsed land; and, by consent, a decree was made in his favour, and a patent issued to the plaintiff, on the 15th of August, 1764. But, pending these difficulties, Jones, fraudulently, paid the governour the pistole and obtained his patent for the 2000 acres, and retains the 426 acres as part of the same. The bill therefore prayed that Jones might be compelled to give possession of the said 426 acres to the plaintiff, and for general relief. Jones afterwards dying, the suit was revived against his heir.
    The answer of Jones’s son and devisee states, That Wood Jones’s order of council was surveyed before the plaintiff’s purchase of Hatcher. That the plaintiff had brought several suits, against his father, for the said land, but had failed xin all of them. That Wood Jones was not guilty of fraud in obtaining his patent: and that Hatcher, if he ever had any right,' forfeited it by his obstinancy in not submitting to the laws. That a court of chan-cer.y had not jurisdiction in the cause.
    There were no depositions taken; but the exhibits were, 1. A copy of Hatcher’s survey, dated 6th November, 1740, of S30 acres of land; which does not state that it was made under an order of council or other public act. 2. A copy of Wood Jones’s order of council, for two thousand acres in the following words: “At a council held May 6th, 1743, leave was given to'Wood Jones to survey and obtain a patent for two thousand acres of land in Amelia county, on Turkey branch, a branch of Cub creek, beginning at a marked oak, and running jip and down both sides the said creek and branch. And at a council held May 3d, 1744, a former order obtained by Wood Jones was renewed for two thousand acres in Brunswick, lying on Turkey branch, a branch of Cub creek, beginning at a marked oak, and running up and down both sides the said branch and up the said creek. John Blair, C. C. council.” 3. The patent, dated 16th of August, 1756, to Henry Hatcher. 4. The patent, dated the 15th of August, 1764, to Elisha White, which recites that to Hatcher; the lapse by non-payment of quit-rents and failure to cultivate and improve, and that White had brought suit and obtained a grant for the same.
    The county court, on the 4th of May, 1789, decreed Jones to conve3' the 426 acres to White; and from that decree Jones, after the habere facias possessionem was executed, petitioned for, and obtained, an appeal to the high court of chancery.
    On the 12th of May, 1791, the high court of chancery made the following decree:
    “This court is of opinion, that the ap-pellee’s title, if any he hath, to the land in controversy must be supported . on the foundation, that the grant to Henry Hatcher operated retroactively, giving, to his title, like vigour, as if the consummation *thereof, b3r the grant, had, been co-temporaneous with the commencement, which preceded the commencement of the appellant’s right; or on this other foundation, that 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 before by another, who, in not perfecting his title, had been in no default; or was obtained by collusion, between the officers 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 appellee’s remedy, in a court of common law, was proper and adequate; and this court discerning no ground for application here, especially, when so great a lapse 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 ap-pellee are remembered, is of opinion that the said decree of the court below, by which the appellee recovered the said land, against the appellant with costs, is erroneous ; and, therefore, doth reverse the said decree, as it is accordingly hereby reversed, and doth adjudge, order and decree, that the bill of the appellee be dismissed, and that he do pay, unto the appellant, the costs expended by him, as well in his de-fence in the county court, as in the prosecution of his appeal, all which is ordered and decreed accordingly.” From which decree White appealed to the court of appeals.
    Innis, attorney general, and Warden, for the appellant.
    The decree of the high court of chancery is clearly erroneous. For the fraud of Jones was manifest, as the survey of Harris, which was recorded in the surveyor’s books, was notice to him of the claim; and that alone conferred jurisdiction. Consequently, as White’s title, as purchaser from Hatcher, was clearly good, the county court did right in *decreeing a conveyance; and their sentence ought to have been affirmed by the court of chancery. Besides, the hab-ere facias possessionem had been actually executed, at the time of the appeal from the decree of the county court, after which the petition of appeal was too late, and ought not to have been allowed.
    Marshall, contra.
    The decree was right, as the complainant neither shewed title nor equity. For Hatcher’s order of council, if he had one, is not produced; and the survey does not purport to have been made by any order of council, or other public warrant. Of course, constructive notice is not established; and actual knowledge is not pretended. But if it had been, still the complainant had no title, at the time of Jones’s order of council and survey; for he had neither paid quit-rents, nor cultivated and improved the land. On the contrary, the probabilit3’- is, that he did as man3r others, at that time, were known to do; that is, that he had a survey made, without any authority, in order to secure the land free from quit-rents and other charges, until it might suit his purposes better, and thus shut out others from obtaining it. But, if it were otherwise, what prevented his filing a caveat against Jones’s survey: which would have brought on a decision of the contest, between him and the governour, and put an end to the controversy. The length of time before the suit was commenced, argues despair of success while things were recent; and that alone is sufficient to repel the claim of the appellant. But White was not, as he pretends, a purchaser, without notice in any sense. For he was apprized of Jones’s patent, at the time of his alleged purchase, (if, indeed, he made one; of which there is not the slightest proof in the cause;) and, therefore, he was clearly the purchaser of a pre-tensed title. Besides, there is no evidence, that the 426 acres are part of Jones’s patent; and therefore, the appellee was entitled to a decree in bar. But, if the complainant had even had right, he had a clear remedy at law; *íor it has long been decided, that fraud, in obtaining it, would vitiate the grant in a court of common law. Chew v. Stevens, in the old general court; and Hambleton v. Wells, (ante) in this court. Consequently, the exception to the jurisdiction is sustained; and the chancellor did right in dismissing the bill.
    Cur. adv. vult.
    
      
      See report of this case In 1 Wash. 116, and Wythe 111. See footnote to Hambleton v. Wells, 4 Call 213. and monographic note on “Jurisdiction” appended to Phippen v. Durham, 8 Gratt. 457, and monographic note on “Appeals.”
    
   PENDLETON, President,

delivered the resolution of the court, as follows:

It was said, that, after the habere facias possessionem, was executed, it was too late to appeal, and none could be allowed. But the practice in England proves this to be a mistake; for there, unless there be a special application for a writ of super-sedeas, the execution is not postponed; but restitution is awarded in case of a reversal. However, it is unnecessary to enquire into the doctrine there; because the act of assembly, allowing a petition of appeal, bounds the right to it, by the three years limitation only.

That difficulty removed, we proceed to examine the decree.

Courts of law have determined, that where patents have been surreptitiously obtained, they are void at common law, and that suits, at law, may be brought to set them aside: But such decisions are rare; none are recollected by us in England, since the reign of queen Elizabeth: and but two in this country, that of Chew v. Stevens, in the old general court, and that of Hambleton v. Wells, in this court. These never having been published, were necessarily, known only to very few of the profession; and perhaps, hardly to any practising in the country only : The remedy at law, therefore, in the present case, was doubtful, and less eligible, evidently, than a suit in equity; which warranted the ap-jjlication to the latter court. But, if that were not so, it has long been established, that courts of law and equity have concurrent jurisdiction in cases of fraud; the allegation, of which, was the very gist of the present suit. Whenever, a ^person having the elder title is postponed by fraud, a court of equity can more effectually set things to rights again; and establish, upon a view of all circum-tances, complete justice between the parties, than a court of common law: and therefore, is, in practice, the tribunal usually resorted to. The court has thought proper to notice these things, lest, by a general affirmance of the chancellor’s decree in this case, a contrary doctrine might be thought to be established.

Upon the merits of the cause, however, the court is of opinion, that the appellant has made no case for relief. By the settled rules of the former government, a man lost his right, under a survey, unless it was returned, into the secretary’s office, within six months: which does not appear to have been done by Hatcher: Neither is it proved, that he ever had any order of council, or other public warrant for the survey; or ever made any application for a patent, paid the quit-rents, or cultivated or improved the land; but on the contrary, a neglect of those things occasioned the petition for it, by the complainant, as lapsed land. Nor do the objections stop there; for the identity of the land is not proved; or that it is part of the lands comprehended in Jones’s patent, without which the plaintiff could have no cause of complaint against the latter. The bill, indeed, suggests that the delay of performance on the part of Hatcher arose from the contest with the governour, about the pistole fee; but even this is not proved; and, if it had, no cause is shewn, why a caveat was not filed to Jones’s survey : which would have brought the whole controversy to an end. In short, nothing appears to have been done to save Hatcher’s right; and, although the case, stated in the bill, is. probably a fair one; yet the plaintiff has not supported his allegations. The only thing, therefore, that can be done, is to affirm the decree of the chancellor; which the court accordingly directs, and the following is to be the entry: ■

‘ ‘This day came the parties by their counsel, and on consideration of the record and the arguments of the counsel, ^although this court doth not approve of the general reasoning in the introduction to the decree of the said high court of chancery, being of opinion that, in controversies of this nature, where fraud is suggested and proved, courts of equity have competent jurisdiction, are most usually and properly resorted to, and can afford ample and adequate relief; yet since the appellant hath made no proof in support of the allegations of his bill, or of any fraud, on the part of Wood Jones, father of the appellee, in obtaining his patent, this court is of opinion there is no error in the said decree: Therefore it is decreed and ordered, that the same be affirmed, and that the appellant pay, to the appellee, his costs, by him, about his defence in this behalf expended: which is ordered to be certified to the said high court of chancery. ’ ’  