
    URBANUS DART et al., plaintiffs in error, v. F. H. ORME et al., defendants in error.
    (Atlanta,
    June Term, 1870'.)
    GRANTS—VACANT LANDS—SURVEY AND SALE FRAUDULENT-CLOUD UPON TITLE—DISCOVERY—INJUNCTION-CANCELLATION OF GRANT.—A bill was filed by the complainants, alleging that they were the owners of certain lots in the city of Brunswick which had been surveyed, marked out and. dedicated to the public for a city, in the year 1733, claiming to derive their title to the lots in said city under ancient grants made by the Crown of Great Britain and the State of Georgia, and by purchase and possession of the lots held under that title, and also alleging, that in the year 182&, Davis and Dart, under pretence of authority under the Head Right Acts of this State, surveyed said lots so dedicated and granted as vacant lands, and obtained grants therefor from the State, which survey of the lots is alleged to have been fraudulent and void, without authority of law, and in violation of the law, because said lots were not vacant lands; that the defendants are offering to sell the lots claimed by complainants, under their said fraudulent title, and have sold some, and are threatening to occupy the same; that the effect of such conduct is to cast a cloud over the title of complainants, and greatly diminish the value of their property; wherefore, the complainants pray for a discovery as to the fraudulent and complicated transactions alleged in the bill, and that the defendants may be restrained *from selling or taking possession of any of the lots of complainants, and that they may be decreed to bring into Court the alleged fraudulent grants, and that the same may be cancelled and decreed to be null and void. To this bill the defendants demurred, first, because the bill was multifarious. Second, because there was no equity in the bill which entitles the complainants to the relief prayed for, and they have an adequate remedy at common law. The Court below overruled the demurrer which is excepted to here:
    
      MULTIFARIOUSNESS.—Held, That as the complainants derive their title to the lots from the same common source, that the bill is not multifarious:
    EQUITY JURISDICTION—ADEQUATE REMEDY AT LAW —CLOUD UPON TITLE—MULTIPLICITY OF SUITS —CANCELLATION OF GRANT.—Held, also That a Court of Equitv will entertain jurisdiction .when the remedy in the Common Law Courts is not as complete or effectual, as it would be in a Court of Equity, and that according to the allegations in the complainants’ bill, the Court had jurisdiction to remove the cloud cast over the complainants’ title by decreeing that the alleged fraudulent grants should be delivered up and' cancelled, as well as to prevent a multiplicity of suits growing out of titles to lots held under them in the city of Brunswick :
    GRANT—IMPEACHMENTS—GROUND—STATE AS A PARTY.
      •—Held, further, That in a controversy between individual persons, a grant from the State may be impeached before the Court for fraud, and when the same is void upon its face, or issued without authority of law, or against a prohibition in a statute, or for property to which the State has no title without making the State a party to the suit, the general demurrer to the complainants’ bill for want of equity was properly overruled by the-court below.
    Equity. Multifariousness, etc. Before Judge Sessions. Glynn Superior Court. November Term, 1869.
    Francis H. Orme, of the County of Fulton, and Seaborn J. Benning, administrator of Seaborn Jones, deceased, of the County of Muscogee, averred as follows:
    ' About the year 1733, the city of Brunswick was founded by Gen. Oglethorpe, acting for the King of Great Britain. The site was selected, a plan of streets, squares and boundaries was adopted, and by that plan the site was surveyed, marked out- and dedicated to the public for a city. -But none of the ground was cleared up, nor were any improvements made, except perhaps by one or two persons. The site remained in this condition for many years. In 1771, the lines and marks having become much obliterated, and the settlement not having much increased, the British Parliament ordered a resurvey according to the original plan. At the *same time the King began to grant lots on liberal terms to purchasers. Thus stimulated, the city commenced growing and many persons obtained grants from the Crown.
    In 1776 came the revolutionary war, which arrested the growth of the city. Afterwards' the State repeatedly passed laws for its benefit and advancement—one in 1787, to make it a port of entry on a footing with Augusta and 'Savannah; one in 1788, appointing commissioners for it and ordering it to be resurveyed and laid out according to the original plan; and in 1796, one similar but more extensive.
    This last Act appointed George Purvis and other commissioners of ¡Brunswick, with power to lay out “the town of Brunswick” “as nearly as possible to the original plan thereof, and cause the streets of the same to be opened and the lots plainly marked or staked off.” The Act further says, “that the commissioners shall immediately after the said town shall be so laid off, advertise the same in some public gazette of this State for nine months, giving notice to all holders or owners of lots” “to make a return thereof to said commissioners, specifying the number of lots so held or claimed by him, her or them,” and requiring from each the payment of one dollar towards defraying the expenses to “accrue in laying out and ascertaining the same,” and declaring “that all lots that shall not be returned to said commissioners within nine months as aforesaid, shall be by them advertised for sale—giving six months notice thereof in the public gazettes of said State,” and imposing a fine of $500 on any person who “may attempt to run up” any part of the said town of Brunswick.
    This Act the commissioners executed. They caused George Purvis, one of their number, to resurvey the town and mark the streets and lots. The streets, however, were not opened except to a limited extent. Purvis made a map of the town and . returned it to the Surveyor General. This map is the true and correct map of Brunswick. Many persons failing to return their lots to the commissioners and pay the assessment of one dollar, those lots were by the commissioners advertised and sold according to the Act.
    *Many lots had been granted by the King before the revolution—many by the State after the revolution. Both kinds amounted in all to about 432 out of 656, the whole number in Brunswick. The remainder were sold under the Act.
    Thus, before the year 1800, all the lots in Brunswick had by grant or sale passed from the King and State into private hands. Still Brunswick would not grow. In 1800 the area of its settlement was only a few lots on Turtle river in the northwestern part of the site. About that time most of the lot owners seem to have despaired of the fortunes of Brunswick, as a city. They sold or forever abandoned their unsettled lots, to be cleared up and converted into fields for agricultural purposes. Accordingly, in four or five years, all outside of the little settlement on Turtle river was cleared, fenced and put in cultivation by three or four persons. In this condition, passing from hand to hand as agricultural land, it remained until by an Act of the Legislature the streets were-partially opened in 1834. Afterwards the fields. and opened streets and squares, for the most part, gradually grew up in woods, and the city assumed its present condition.
    In 1826 the fields outside of the little settlement on Turtle, river were occupied and cultivated by three or four persons; those on the east and northeast by James C. Mangham and Robert Hazlehurst; those next to Mangham on the south, by James A. D. Lawrence; and the remainder south of Lawrence and extending to Turtle river, by Mary and Robert Piles. These occupants, of their predecessors and privies, had, without interruption in the occupancy, thus held and used these fields from about the year 1800. In 1826, they all, except Robert Hazlehurst, sold and conveyed their fields to Moses Eastman. He then immediately succeeded to the use and occupation, which they had had. Soon after-wards he sold and conveyed an undivided interest in the lands to Seaborn Jones and Sheldon C. Dunning, who with him continued the use and occupation until their several deaths, many years afterwards, he dying in 1850, Dunning in 1858 and Jones in 1864. The particulars of Eastman’s purchases and of the subsequent title are as follows:
    *On or about the 19th of August, 1826, James C. Mangham sold and by deed conveyed to Moses Eastman a parcel of land in the town of Brunswick, containing fifty acres, more or less, bounded * * * * *.
    Urbanus Dart, one of the defendants, was a witness to the deed, which was recorded in the Clerk’s office of the Superior Court of Glynn county, on the 5th of ’November, 1827. The upper part of this parcel of land (was cleared, fenced and cultivated in 4806, or 1807 by Mrs. Payne. She kept it fenced and cultivated for a few '¡years, and then sold it to Patrick Gibson, who kept it fenced and cultivated for several years, and then sold it to Robert and Mary (Piles, who kept It fenced and cultivated for several years, and then sold it to J. C. Mangham, who kept it fenced and [cultivated until he sold it and the lower part to M. Eastman. The lower part of this parcel of land was cleared, fenced [and cultivated by Ann C. .McKenzie prior to 1807. She continued to keep it fenced ^and cultivated until it passed to James C. Mangham, by her marriage with him, when he continued to keep it fenced 'and cultivated for more than seven years. In 1834, when the streets were partially opened, he ceased to cultivate such of the ground as became streets, retaining possession of the remainder and cultivating some of it, by himself or his tenants.
    On or about the 27th of June, 1836, Eastman conveyed by deed to Sheldon C. Dunning two. undivided third parts of the fifty acres. Thenceforth they held it in common and by themselves or their tenants kept parts of it enclosed and cultivated until the death of Eastman, in 1850, when Dunning and Mrs. Eastman, -the administratrix and only heir of Eastman, continued the same use and occupation until his death, in 1858.
    On his death his heirs succeeded to his interest, and one of them, H. D. Weed, became his administrator. Between him and Mrs. Eastman a division or partition of the lots, supposed to be contained in the fifty acres, was made.
    Soon afterwards, Francis H. Orme, purchased from her all of her interest, and about the same time he purchased from the heirs of Sheldon C. Dunning all their interest.
    *On or about the fifth day of August, 1826, the parcel of land in Brunswick, containing thirty acres, more or less, bounded as follows: * * *.
    
      This parcel of thirty acres, about the year 1804 or 1805, was cleared by ••Benjamin Hart, one of the grantees of bay lot number forty-four, in or near said parcel; or by Ann McLeod, who about that time purchased the same from Hart, and received his deed for it. She, after cultivating it for two or three years, sold and conveyed it to Dr. Geo. Dupree, who cultivated it for two years, and then sold and conveyed it to Patrick Gibson, who cultivated it for two years and then sold and conveyed it to Robert and Mary Piles. Two or three years afterwards they sold and conveyed one-half of it to Dr. Geo. Dupree—having •continued the cultivation of the whole of it up to that time, and continuing still to cultivate the unsold one-half. This half they continued to cultivate for about two years, when they sold and conveyed it to Dr. Dupree. He cultivated the whole until on or about the ....... day of .......... 1825, when he sold and conveyed it, and half the crop then on it, and an old house, to James A. D. Lawrence. Lawrence sold and conveyed it, as aforesaid, to Eastman—having cultivated it up to the sale. Eastman then, by himself or his-tenants, continued the cultivation until about the 6th of January, 1830, when he sold and conveyed the undivided half of it to Seaborn Jones, the intestate of Seaborn J. Benning. They continued the same use and occupation until about the middle of 1834, when streets were partially opened through it. After that time they continued the use and occupation of such parts of it as were not streets until the year 183.., when Eastman sold his interest to S. C. Dunning. Afterwards Jones and Dunning continued the use and occupation until Dunning’s death, in 1858. Soon after his death, Orme, in the manner aforesaid, brought his interest from his heirs.
    On or about the 4th day of August, 1826, Mary Piles, widow of John Piles, and Robert S. Piles, by deed sold and conveyed to Moses Eastman all those town lots or parcels of land in the town of Brunswick, containing sixty-four acres, *more or less; “which said lots,” the deed states, “were originally cleared by Patrick Gibson, and by him * * * conveyed to the said parties of the first part, and which have since been in the cultivation and occupancy of” them “and their tenants.”
    This parcel of land is more particularly described in an agreement for the temporary continued occupancy of said parcel, and of Bay lot No. 44, made by the parties contemporaneously with this deed, as follows: “That the convevance of the lots in quit claim means the whole interest of the Piles family therein, and which heretofore, and for these many years, they have held and possessed, part of which was cleared by Abrams’ agent, part by Gibson, and another part by the Piles family, bounded * * *
    Of this parcel of sixty-four acres, fifteen or twenty acres were' cleared and enclosed prior to 1800, probably by John Piles or Mary Piles; she was in possession of them in 1807, cultivating them that year. She and Robert Piles jointly continued the possession and cultivation until the accession of Eastman under their deed and agreement aforesaid, in 1826.
    Twenty acres were cleared and fenced by Benjamin Hart, the grantee of bay lot forty-four, long before the year 1800. This lot lay within said enclosure, and the enclosure was adjacent to his residence. In 1809 the fence was repaired and Ann McLeod cultivated the land under a purchase from Hart. In 1810 she sold out to .......... Abrams, who .built a house on lot forty-four, cleared up all the rest of the sixty-four acres then uncleared, and cultivated this newly cleared ground, and the twenty acres acquired from Ann McLeod. Abrams was acting mainly as agent for Patrick Gibson, who the next year, 1811, joined him in the possession and cultivation.” This joint possession and cultivation continued for two or three years, when Gibson bought out Abrams, and then sold and conveyed the whole interest to Mary. Piles and Robert Piles. This was in 1812 or 1813. They immediately went into possession and continued possession and cultivation until they sold and conveyed to Eastman, as aforesaid, in 1826. *Eastman, by himself or his tenants, succeeded to the possession and cultivation, and continued the same until about the 6th of January, 1830, when he by deed sold and conveyed to Seaborn Jones one undivided half of the sixty-four acres, as well as of the thirty acres aforesaid, and of certain lots mentioned by number. By another deed he sold and conveyed to Sheldon C. Dunning, in 1836, .his remaining interest in the land. Dunning died in 1858, soon afterwards, as above stated; his heirs sold his interest to Orme. The use and occupation of the land was kept up continuously under the successive titles.
    Of these three parcels of land, the first, of fifty acres, was known as the Mangham land; the second, of thirty acres, as the Lawrence and Dupree land; and the third, of sixty-four acres, as the Piles land. Thev made one bodv. lving in the central and southern part of Brunswick. In 1826, Eastman acquired all the parcels constituting the body. Subsequently Eastman’s interest passed into others, as above stated. Einally it vested in complainants.
    On or about the 6th of October, 1772, George the III, by James Plabersham, President of the Council and Commander-in-Chief in the province of Georgia, under the great seal of that province, gave and granted to Toseph Habersham, his heirs and assigns, wharf lot number one in the town of Brunswick. On or about the 4th of August, 1772, he .in like manner gave and granted to the same Joseph Habersham, his heirs and assigns, town lot number one in the same town. On or about the 11th of June, 1837, Robert Habersham, Joseph Habersham, and Robert Habersham, as administrator of William Habersham, by deed reciting that they were the heirs of the late Joseph Habersham, sold and conveyed in fee simple to Moses Eastman both of the lots aforesaid. They, as the deed recites, were, together with said deceased, William Habersham, the heirs of the Kingis grantee, Joseph Habersham. On or about the 13th day of January, 1830, Eastman by deed sold and conveyed in fee simple to Seaborn Jones, one undivided half of both of said lots, and in 183.., to S. C. Dunning the other undivided half.
    *On or about the 4th of August, 1772, George III, in like manner, gave and granted to John Plabersham, his heirs and assigns town lot number two, and afterwards, on or about the 6th of October, 1772, wharf lot number two. On or about the 12th of March, 1827, Robert Habersham and Mary B. Plabersham, his wife, Joseph Habersham and Susan D. Habersham, his wife, Joseph C. Habersham and Ann Ward, by deed reciting that they were the heirs of John Habersham, the elder, deceased, (as they were,) sold and conveyed in fee simple to Moses Eastman both of these lots. Eastman, in 1830, by his same deed conveyed one undivided half of them in fee to Jones. In 183. . Eastman conveyed the other half to Dunning.
    Bay lot forty-four .was granted about the same time and in the same manner to John Rudolph and Benjamin Hart. After-wards they sold and conveyed it in fee to Mary and Robert S. Piles, who in 1826 sold and conveyed it, with warranty of title, to Moses Eastman, the consideration being $500. Eastman, by his deed aforesaid, in 1830, sold and conveyed one undivided half of it to Seaborn Jones. In 183.. he conveyed the other half to Dunning.
    About the same time grants were issued for the above lots, namely, for bay lot number thirteen and water lot number thirteen, to John Simpson and James Habersham. (Simpson proved a tory and Habersham acquired the whole interest.)
    Eor water lot number thirty-five, to Habersham; for bay lot number thirty-five, to James Habersham and Jacob Weed, (soon afterwards James Habersham acquired Weed’s interest and became the sole owner) ; for water lot number forty-three to James Habersham, junior, son of said James Habersham; for town lot number eighty-five to James Plabersham; and for town lot number one hundred and seventy-one, to John Habersham, senior and James Plabersham, junior. Afterwards, on or about the 1st of November, 1826. Stephen Elliott, by two deeds, sold and conveyed to Moses Eastman numbers 13, 13, 35, 35, 43, 85 and one-half of number one hundred and seventy-one. At the time of these conveyances Stephen Elliott, as heir to the two *Habershams, James, senior and James, junior, or as a purchaser, owned the whole interest in all the lots, except 171, and the half interest in that lot. _ Moses Eastman, by his deeds aforesaid, conveyed the one undivided half of all these lands to Seaborn Jones, and the other to Dunning.
    On or about the 5th of July, 1774, George the Third, by his ■Captain-general, Commander-in-chief and Governor of the -province o'f Georgia, Sir James Wright, gave and granted under the great seal of said province, (by two grants) to Noble Wimberly Jones, his heirs and assigns, wharf lot number four and bay lot number four in Brunswick. On or about the 6th of October, 1772, he, by his President of the Council and Commander-in-chief in the province of Georgia, James Habersham gave and granted under the great seal of said province, town lot number fifty (50) to Noble Jones, Esquire, his heirs and assigns. On or about the 19th day of January, 1773, he, in like manner, gave and granted to Noble Jones, his heirs and assigns, wharf lot number fifty (50.) On ,or about the 6th October, 1772, he, in like manner, gave and granted to said Jones, his heirs and assigns, town lot number one hundred (100.) About the same time he granted to John Jones, his heirs and assigns, town lot number fifty-six (56.) Afterwards, on or about the 16th of April, 1826, George Glenn, as administrator of Noble W. Glenn, by deed, reciting that Noble W. Glenn, at his death, was entitled to the lots aforesaid, by purchase, as one of the heirs of the late Dr. .Noble W. Jones, and that he, George, as his, Noble -W. Glenn’s administrator, had applied for and obtained leave of Court to sell the same—sold and conveyed the lots aforesaid to Moses Eastman. This recital in the deed was true, and the whole interest in said lots passed by said deed into Eastman; and afterwards from Eastman to Dunning by said deed.
    Town lots 240, 241, 242 were granted to E. O’Neal. After-wards, on or about the first Tuesday in............ 1826, they were sold at sheriff’s sales in Glynn county, and purchased and paid for by S. C. Dunning, though the title was made by the sheriff to Charles Dunham. The lots were *subject to such sale, and a trust of the entire interest in them resulting to Dunning. The interest of Dunning in all of the foregoing lots was conveyed by his heirs to Orme, by their above-mentioned deed.
    Lots numbers 111, 112, 269, 336, 366, 491, 492, 493, 494, 532, 552, 553, 12 water and 12 bay, were given and granted by George the Third in 1772, or soon afterwards, to Henry Osborne. Numbers 133, 386, 387, 388, 389, 429, 432, 436, 437, 443, 444, 445, 446 were given and granted in 1776, or not long afterwards, by the State of Georgia, to the same Henry Osborne. In 1826 James G. Osborne and John H. Osborne, only childen and heirs of Henry Osborne' and Mrs. Osborne, his widow, to whom these lots were left by his will, conveyed all their interest in them to Seaborn Jones.
    
      Eastman, Dunning and Jones respectively, by themselves and their agents or tenants, at the times aforesaid, when they acquired title to said lots, went into the possession, use and occupation of the same, and afterwards kept such possession, use and occupation continuously, in the same manner as they did of the three large parcels of land.
    On the 21st December, 1834, the Legislature passed an Act requiring the streets and public squares of Brunswick to he opened. Eastman, Dunning and Jones believing this to be a good law, waived their rights and allowed the streets and squares included in their boundaries to be opened. Accordingly those streets and squares were partially opened. Afterwards the possession, use and occupation was confined to the parts of their land in which there were no streets or squares, or in which these had not been opened. As to those parts, they kept diligent watch and guard over them, and such possession and use as the nature of the case admitted. They employed agents in Brunswick, at great expense, to protect the property and prevent intrusion.
    In 1827, the year after the property was acquired by Eastman, Dunning and Jones, they commenced paying taxes on it —Eastman or Dunnings generally making the returns and paying the taxes. In that year Eastman’s return was made to the Tax Receiver of Chatham county, where Eastman resided. *In that return he set down the number of lots in the parcel of fifty acres at one hundred and twenty-nine, as follows ; ******* * and the number of lots in the two parcels of thirty acres and sixty-four acres, making together ninety-four acres, at one hundred and forty, as follows ;*****.
    In the return he stated that these one hundred and forty lots were only a part of the lots embraced in the niney-four acres, but that they were as near the whole number as could then be ascertained. And this statement was true. Other lots were added in subsequent returns. But within the boundaries of all the three parcels were some lots which were never ascertained, and never returned for taxation. They claim every lot within said boundaries.
    In this return Eastman also returned ten and one-half lots separately, as follows: * * *
    On all of the foregoing lots (two hundred and seventy-nine and a half,) Eastman paid the taxes for 1827 and 1828.
    The' next return for taxes, which is in possession of complainants, was made in 1838 or 1839. In that return two hundred and eighty-eight lots are set down as follows? * *
    This was the number of lots which had been returned for eight or nine vears previously, and which was returned after-wards, until Dunning’s death, in 1858. But even this number does not embrace all of the lots within the boundaries of the land.
    
      The title acquired by Eastman, Dunning and Jones in 1826, was regarded and treated as the full and perfect title by the citizens of Brunswick, by' the corporate authorities of Brunswick, by the tax-officers of Brunswick, and by those of Glynn county. The lands were year after year taxed as belonging to them. One of the assessments (that for 1858,) is in the possession of complainants. It, however, embraces only the lots in the two tracts of thirty acres and sixty-four acres, amounting .to one hundred and fifty-eight acres. The assessment for the lots in the fifty acres, though also made, is not in their possession. The assessment referred to is as follows: * * * * * * * *
    *This continual assessment of the lots to Jones, Dunning and Eastman by the city authorities for so long a time, was and is high evidence' that the lots belonged to them. Indeed, it is now by special statute made conclusive evidence. On the 22d of December, 1857, the legislature passed an Act additional to an Act to incorporate Brunswick, declaring that when a lot is assessed to a person as owner, nothing shall prevail against the presumption that it is his but his written disclaimer of ownership upon the records of the city of Brunswick. The taxes paid on said lots by Dunning, Eastman and Jones for so many years, amounted to many thousands of dollars, not counting interest.
    Not only was the title of Dunning, Eastman and Jones thus recognized for so many years by-the city and county authorities, but it was equally for the same length of time acquiesced in by the original grantees and original purchasers of the lots. Few if any of those grantees or purchasers ever set up any title to the lots adverse to that of Dunning, Eastman and Jones, or to that of the persons from and under whom they claimed, that is to say,, during a period of from sixty to one hundred years.
    This acquiescence for so many years not only authorizes but requires the Court and jury to presume that the first occupants of the lots (above claimed) or some of their successors, had conveyances to the same from such original grantees or original purchasers, and that if such conveyances cannot now be produced, it is because they have been lost or destroyed by lapse of time.
    On or about the 9th of September, 1826, William B. Davies, now deceased, procured Urbanus Dart, at that time the County Surveyor of Glynn county, to survey for him under pretense of authority from the Head Rights Acts, the southern part of the city of Brunswick, consisting of one hundred and eighty-eight acres of land. On the 29th of September, 1826, Dart, under the same pretence, surveyed for himself the other or northern part of Brunswick, consisting of one hundred and eighty-one and one-quarter acres of land. In these surveys Davis and Dart acted in concert and confederacy.
    
      *The surveys were void. Not only were they unauthorized by any law, but they were expressly forbidden by statute. The lands were not vacant, and the law does not authorize the survey of any but vacant lands. They were not •vacant, because:
    First, They had been and were still dedicated for a .city—• the city of Brunswick. They constituted the site of Brunswick. That site had as long before as 1733 been by General Oglethorpe, acting under the authority of the King of Great Britain, planned, surveyed and dedicated as a city. In 1771, as appears by the Act of 23d December, 1832, the Parliament of Great Britain ■“laid out a plan of the town of Brunswick,” according to which plan Bay street had a width of 180 feet. All the streets and squares were surveyed. This plan was only the plan of Oglethorpe reaffirmed and renewed. In 1787, in 1788, in 1796, and many times afterwards, the Legislature not only recognized but approved and confirmed Brunswick as a.city, and the original plan by which it had been surveyed. The Act of 1787 appoints James Spalding and others Commissioners for the port of Brunswick, placing it on the same footing as Augusta and Savannah. The Act of 1788 appoints John Houston, General Lachlin McIntosh and others, Commissioners to resurvey it “as near as possible to the original plan,” and to sell “vacant lots,” declaring that nothing in it shall “affect the right or title of any person or persons claiming-or holding a lot or lots within said town as laid down in any legal plan thereof.” The Act of 1796 is similar, but more decisive. It appoints George Purvis and others, Commissioners of the “town of Brunswick,” with power “to lay out the town as nearly as possible to the original plan,” and power to sell lots and to lease the commons. Above all, it prohibits, under a penalty of $500, all persons from running up any part of the town or common of Brunswick. In 1813; 1814, 1817, 1818, 1819, 1821, 1823 Acts were passed recognizing Brunswick as a city.
    Secondly, The site of Brunswick was not vacant because all or nearly all of the lots therein had been granted by the King or by the State, or been sold by the State’s authority.. Long ^before the year 1826—the year of Dart and Davis’s surveys—the number of lots which had been granted in Brunswick by the King, or by the State was about four hundred and thirty-two, the whole number being six hundred and six. Before Í800 the Commissioners under the said Act of 1796, had sold all or nearly all the remainder. Thus, by the year 1800, or thereabouts, all title had passed into private persons, and there could afterwards be ho, vacant land. Certainly, the whole, was not vacant. ■ . • -I
    Thirdly, The site was actually occupied; a small part of it on Turtle river, as a town, the remainder as plantations or fields enclosed and in cultivation, with residents and residences. The town had been there for fifty or sixty years; the plantations or fields for more than twenty.
    Fourthly, The surveys were void by the express words of two statutes.
    The statute of 1785, to amend and repeal some parts of the land Acts, declares that “Where it shall appear that any surveyor has knowingly run across another’s line, or surveyed land before surveyed, the last mentioned survey shall be deemed null and void, and such surveyor liable to a fine of fifty pounds for every offense.” Dart in said surveys knowingly followed the lines which had been laid out for the city of Brunswick. lie knew that the two surveys constituted á survey of the city of Brunswick by its exterior lines, and that the dividing line between the two surveys crossed many of the street lines and lot lines of the city.
    The statute of 1796, above referred to, absolutely prohibits every person, under a penalty of $500 00, from running up “any part of the town or common of Brunswick.”
    These surveys were so lawless and audacious that they attracted the attention of the Legislature. On the 30th of November, 1826, less than three months after they were made, the Legislature passed an Act, which, after appointing Commissioners of Brunswick, declares “That said Commissioners are authorized and required to carry into full effect all the provisions and intentions of the law of 1796, as far'as relates to the towns and commons of Brunswick and *Frederica.” Accordingly, Davis, for his part in the surveys, was soon after prosecuted and convicted under the Act of 1796. Dart made his peace with the Commissioner by writing a letter to one of them, Robert Hazlehurst, in which he promised to withdraw his survey and to claim nothing under it.
    The two grants were void, because issued without authority of law against the prohibition of statutes, and for property to which the State had • no title; and because procured by fraud.
    First, The surveys were void, and the same are no surveys, as has been shown, and no authority is given by the Head Rights Acts for issuing grants, except on surveys, and such surveys as those Acts contemplate.
    Secondly, The grants were against the prohibition of the two statutes. The Act of 1796 prohibited the surveys. The grants were only carrying out the surveys, and the prohibition must equally extend to them.
    The Act of -1785, to amend and repeal parts of the Land Acts, declares that “no grants shall be signed till the survey has been advertised by the surveyor of the county, at least three months after it has been recorded by the said County Surveyor.” These surveys had not been recorded and afterwards been advertised for three months by the County Surveyor, at the time when the grants were signed. The surveys were never recorded or advertised at all by the County Surveyor.
    
      Thirdly, The State had no title to the property covered by the grants. That property, as it has been shown, was not vacant. It had been dedicated by the Crown and by the State for the town of Brunswick; the lots had been granted by the Crown, or by the State, or they had been sold and conveyed by the Commissioners of Brunswick, acting under authority derived from the State; the property was at the time actually occupied—a small part as a town, and the rest as plantations and fields in cultivation, with houses, enclosures and residents. The property had been in this condition for many years; the town part for more than fifty years, the other part for more than twenty. Title had passed out of the State.
    ^Fourthly, The grants were obtained by fraud. The conduct of Dart and Davis was such as to induce, and did induce all persons interested, including Eastman, to believe that they would abandon the survey. They both so spoke and so acted as to make this impression on all persons owning property in Brunswick. They said they would withdraw the surveys, and not attempt to carry them out. Dart put this in a letter to Robert Hazlehurst, one of the Town Commissioners. They took no steps to obtain the grants, for a long time. The surveys were not recorded or advertised by the County Surveyor. Suspicion was quited and confidence restored. Therefore, no caveats were filed against the issuing the grants. At the end of more than two years, when they thought the time was about to expire within which grants were obtainable, they suddenly and clandestinely applied for grants, and grants were issued to them. But for these assurances, and this apparently corresponding conduct, caveats- would have been filed to the grants not only by Eastman, who had specially authorized Eleazer Early to enter caveats, -but by the Commissioners of Brunswick, and by many of its citizens.
    When this became known, the indignation _ of the people of Brunswick was excited. To lull the excitement which might burst into acts of violence, Messrs. Dart and Davis issued their manifesto to the public in the Darien Gazette, in 1829. The document is as follows: ’ :J: * *
    This being a solemn disclaimer of all adverse intentions towards bona fide owners, seemed to render the grants harmless. Excitement subsided.
    For a time this pledge was kept. But in 1835 and 1836, they began to claim title and sell under their grants, and in one or both of those years, they each sold many lots covered by their grants. Davis sold nearly all of the lots covered by his grants to Erastus Fitch, of New York, who soon afterwards sold them-to Amos Davis, of Maine, and Abraham Colby, of Massachusetts; the remainder of those lots he sold to Amos Davis and Abraham Colby. Dart also sold to the same two persons a large number of the lots included within his grant.
    
      *A11 the lots thus acquired by Davis and Colby, they, in 1837 or 1838, sold to Charles Cartwright, Simon Green-leaf William H. Gardner, of Boston, sometimes called the Boston Company. In 1850 or 1851, Cartwright, Greenleaf and Gardner sold all the lots to Amos Davis and Samuel B. Brooks. In 1852 Davis and Brooks were incorporated by the Legislature, under the name of “The Proprietors of the City of Brunswick;” and whatever title they had to the lots passed to the corporation by their conveyance, or by operation of the charter.
    Which lots were the ones conveyed as aforesaid, or whether the conveyances were in the order and to the parties as aforesaid, is unknown to complainants, but well known to Dart and to the corporation. These statements are founded on information and belief, viz.: Said corporation has a chain of conveyances to said lots from Dart and William B. Davis, respectively, and the corporation claims title under their grants, insisting that those grants are valid. Of the lots embraced in Dart’s grant, a large portion, including some of those claims as aforesaid by complainants, are claimed by Dart under his grant. But which are those retained and claimed by him, and of these which are those claimed by complainants they do not certainly know, but he does well know. Counsel applied .for information to Major Schlatter, the agent of the corporation, as to which were the lots the corporation claimed, but he, without refusing to give the information,' failed to give it; and for the reason, as they believe, that he was unwilling for them to have it. Complainants can obtain information of the lots they claim, which are also claimed by the corporation and by Dart, only by a discovery from them in equity. The corporation and he are acting in concert and confederacy, as they are enformed and believe. They are in privity with .each other, because the conveyance made by Dart, under which the corporation claims, is a conveyance containing a covenant of general warranty of title, which runs with the land.
    The corporation and Dart are offering to sell, and threatening to occupy complainants last mentioned lots, and.that they *have sold some of those lots, but which, though well-known to them, is unknown to complainants. The effect of this conduct is to cast a clou'd over complainant’s title, and greatly to diminish the value of their property.
    The grants to Dart and Davis were and are void. If the grants are void, all title derived from them is void—even although those holding ’that title may have acquired it without notice that the grants were void. But they acquire it with full notice that the grants were void—because: The grants with their plots show on their face that they were issued under the Head Rights laws, and therefore that they could be valid only if for vacant lands; and the descriptions of the lands granted in connection with the plots show that the lands were not vacant, but constituted by metes and bounds the precise site of Brunswick; and that the site of Brunswick was land not vacant, land not subject to be surveyed and granted under the Head Rights Acts, was matter of law—many public Acts having recognized and affirmed Brunswick to be a city, and its site to be dedicated for a city—one of them absolutely prohibiting, under penalty, the survey of Brunswick as vacant land. Among those Acts are the Acts above mentioned of 1787, 1788 and 1796. The plots, with the notes subjoined to them, show also that the surveys on which the grants were founded were never advertised by the County Surveyor. Not only the said corporation, but all the persons under whom they claim as mesne conveyances between them and Dart, and them and Davis, thus had notice of the matters aforesaid.
    By the growth of trees, the decay of fences, the removal and decay of posts and stakes and other effects of time, or design, the boundaries of the streets and squares of Brunswick, as well as of their bodies of land, have disappeared; the boundaries of their bodies of land bisect or touch many dots and squares, and it is difficult to ascertain the lots and squares which they bisect or touch, and where they bisect or touch them, and consequently the identity of the lots along their boundaries is in dispute, and most if not all of those lots are claimed by the said Dart and sáid corporation' as being *without said boundaries. Ascertaining and settling these boundaries in equity would prevent a very large number of suits at law, and save much time, trouble and expense. # ■
    In regard to the lots which the corporation has in good faith sold, if the corporation will turn over the purchase-money, they will ratify the sales. In regard to the unsold lots belonging to them, but claimed by the corporation or by Dart, they make this offer: That by consent of parties, the Court may appoint some fit person to take charge of those lots and sell them, as the representative of all the litigants; so that purchasers may get good titles to the lots, and the litigants contend only for the purchase money.
    In consideration of the premises, they prayed that the said corporation and the said Dart answer interrogatories addressed to them:
    They waive all other or further discovery from the defendants than full answers to the questions, and the production of the papers and documents, for the production of which they asked; and that the said the proprietors of the City of Brunswick may be compelled to bring into Court the said two grants: one to Dart, and the other to William B. Davis, to be cancelled; and that the said grants be cancelled and decreed to be null and void, and that the said defendants may be restrained from selling or taking possession of any of the lands or lots as aforesaid; and that a Receiver may be appointed to take charge and possession of the property, pending the litigation, with power to sell the same, or any part thereof, and account for the proceeds of sale; and that the said defendants may be restrained from withholding and detaining the possession of any of said lands or lots; and that the said The Proprietors of the City of Brunswick may account to and pay over the principal and interest of any money which they may have received for the sale or rent of any of said lands or lots, and may deliver up any notes or other securities they may hold for rent or unpaid purchase-money of any of said lands or lots; and that the boundaries of said lands may be ascertained and established by a survey made under the order and direction of Court; and that the *title to the lands and lots claimed by them, as aforesaid, may be affirmed and established and they be quieted in the possession and enjoyment of the said lands, and for general relief.
    The bill was demurred to upon the grounds that it was multifarious, it contained no equity and complainants had an ample and complete remedy at law and that they had lost their supposed rights by laches. The demurrer was overruled and that is assigned as error.
    James L. Seward and John M. Guerrard for plaintiffs in error.
    I. Multifariousness. The joint interests of both complainants are united in a bill with several interests of each complainant: 2 Haddock’s Chan., marg. p. 177, 294; Story’s Eq. Plead., 230; Cooper’s Eq., 182; Harrison v. Hogg, 2 Vessey, jr., 323; Dilly v. Doig, do., 486; Boyd v. Hoyt, 5 Paige’s Chan. R., 65, 79; Marselis v. Morris Canal Co., Saxton’s R., 31; Marshal v. Means, 12 Ga. R., 65. Under prayer for account the Court must settle what portion of the rents and notes which it is asked shall be surrendered belongs to complainants jointly and to each severally. It must also settle boundaries between complainants’ joint and several lands as well as between them and the proprietors of the city of Brunswick, for land lying outside of the boundaries claimed in bill, and set aside such sales as complainants do not affirm: Salvidge v. Hyde, 1 Jacob, 151; Mole v. Smith, do., 490. The titles of complainants as to the lots held in severality. sprinsr from separate sources and are in every way independent. Their grantors could not join in a bill. There is no connection between these separate and distinct matters: Code, sec. 3197; 2 Ga. R„ 419; 8 do., 239: 1 Brown’s C. C., 201; Yeaton v. Lenox, 8 Peters’, 127. If hill is multifarious, charge of combination will not save it: 1 Ga. Dec., 24; Cooper’s Eq., 182.
    II. There is an adequate remedy at law. 1. If a patent is absolutely void on its face, or the issuing thereof was without authority or was prohibited by statute, or the State had no title, it may be impeached collaterally in a court of law in an ^action of ejectment: Code, sec. 2330; Patterson v. Winn, 11 Wheat., 384; The Commissioners v. Dart et al., R. M. Charlton’s R., 497; Hilliard v. Connelly, 7 Ga. R., 180; Winter v. Jones, 10 do., 190. 2. The grants are alleged to be so patently defective as to carry notice on their face that they are void. This ousts the jurisdiction for cancellation: 2 Story’s E. J., 11; Adams’ Eq., 174. 3. Equity will not take cognizance of a plain legal right where an adequate and complete remedy is provided at law: Code, secs. 3040, 4119; Butler v. Durham, 2 Ga. R., 414-25; Withington v. Summerall, 20 do., 345. 4. If, as is alleged, the grants were obtained by fraud, a complete remedy at law is given: Code, secs. 2329-30. And this controls the case: Oborne v. The Ordinary, etc., 17 Ga. R., 124. 5. Complainants allege that they and their predecessors since 1804 have been continuously in possession; if so, title of defendants has long been barred and titles made by them are void: Helms v. May, 29 Ga., 121; Gresham v. Webb, do., 320. If, then, complainants have always been in possession, they do not need the aid of this Court; but if defendants have been in possession the Court can not aid the complainants, for the grants, however void originally, accompanied by possession, have become valid as color of title: 4 Ga. R., 115, 308; 17 do., 108; 13 How. R., 477; 18 do., 56. If remedy is perfect at law, a prayer for discovery will not give jurisdiction: Code, secs. 4119, 4123.
    III. No equity is set up in bill. 1. The Court cannot cancel a grant by this proceeding: Everett v. Towns, 17 Ga. R., 29; Walker v. Wells, 17 Ga. R., 547. The State must itself ask that its grant be cancelled: Commissioners v. Dart, R. M. C., 497; McRory v. Sykes, 20 Ga. R., 571; Parker v. Hughes, 25 Ga. R., 374. The propriety of requiring this in the present case is increased, because to cancel the grants will be to set aside an act both executive and legislative: Acts 1837, 261. “It is the duty of Courts to put such a construction upon statutes, if possible, as to uphold them and carry them into effect:” Winter v. Jones, 10 Ga. R., 191. 2. But bill says that the lots have been sold, *beginning thirty-three years before it was filed, five times, and does not charge either want of consideration or express notice of fraud; besides which, it says lots have been sold in good faith to other purchasers.
    Now, unless defect is patent, complainants have here no remedy against these purchasers, who must be supposed bona fide and without notice other than alleged: Code, sec. 3037; Wyche et al. v. Green, 11 Ga. R., 173; Lyne v. Rogers, 12 Ga. R., 281; Wall v. Arrington, 13 Ga. R., 88. 3. A grant cannot be cancelled in part. It is not alleged that complainants claim all the land embraced in the. grants; indeed, the contrary appears. The remainder of relief prayed for is incident to cancellation. .4. Complainants show no title. They rely on title by prescription to most of the premises and ask that a grant and conveyance from the grantees to them may be presumed, and on that presumption that their right be recognized to ask the cancellation of grants shown by them to exist. True, they allege that “before the year 1800 all the lots in Brunswick had, by grant or sale, passed from the king and State into private hands;” but this allegation is not admitted by the demurrer. Because not well pleaded ■ (Story’s Eq. Plead., 355), it not being alleged with “necessary and convenient certainty as to the essential circumstances of time, place, manner and other incidents:” Story’s Eq. Plead., 207. Because inconsistent with other parts of the bill. It refers in many places to the Act of 1796 (Mar. & Craw. Dig., 159) and on page 7, to Act of November 30, 1826, (Dawson’s Com. 469.) These Acts are thus made part of the bill. Yet the bill alleges that in 1826 another Act was passed, appointing new Commissioners to do the very thing which the Commissioners of 1796 were appointed to do, and which, therefore, they must have failed to do. “The bill, in fact, makes two cases, which are inconsistent with each other”: Williams v. Steward, 3 Mer., 503. And a demurrer can not admit contradictory propositions. Because inconsistent with the laws of the State: Lamar’s Dig., 977-8; Dawson’s Comp., 469-79; Acts 1832, pam. 207; Acts 1837, pam. 263; Acts 1857, 138. There being, then, *no allegation that the lands were granted, the title to them is in the State. What is asked of the Court is, to make title for complainants by presum-, ing a grant. Such presumption can be made only after the passage of the Act of 1856: Burgess v. Gray, 16 Howard, 48; 20 Ga. R., 467. Then it is met by the fact (contrary to which there can be no presumption) alleged that in 1828 grants were issued to Dart and Davis. These were confirmed by the Legislature in 1837 (Acts, 261), so that, when by law a grant could first be presumed, the State had nothing in the premises of which a grant could b.e presumed. The Court must not only presume grants to unknown persons, but conveyances from the original unknown grantees to complainants. Besides which, no suggestion is made of the loss of any papers in the Executive Department, and the Court can not presume that which does not appear:. Hathaway v. Clark, 5 Pick. R., 492; 1 Green. Ev., 24. The Court takes judicial notice of this: Code, sec. 3698. Copies of the deeds under which complainants claim are not filed with the bill as required by the 4th Equity rule, and “the mere non-production of. written evidence which it is in the power of a party to produce generally operates as a strong presumption against him:” 47 Law Lib., 130. The predecessors of complainants are in the bill treated as mere occupants, holding and using the premises they are not stated to have held adversely, or to have conveyed the “entire fee simple estate in the land” (36 Georgia Report, 202) to any one, and indeed the converse is stated on page six, where it is said, “few, if any, of these grantees or purchasers ever set up any title to the lots adverse to that of Dunning,” etc. That Mary Piles did not intend by her quit-claim to Eastman to convey more than a mere occupancy is shown by the bill, where she treats of what passed under the quit-claim claim as “bounded to the south by the Piles’ fee simple land;” and, further, neither complainants nor their predecessors paid taxes on the land until 1827 the year after the survey for defendants. The occupancy does not seem to have been hostile in its inception, but permissive rather, and founded upon 'the acquiescence of *the original grantees, to whom, therefore, it must have been subordinate; nor do the original grantees, if any, appear to have had knowledge of any hostile claim by the occupants (King v. Levees, 36th Georgia Reports, 205), who failed even to record any of their deeds, except that from Mangham. In 1792 John Piles was appointed a commissioner (Watkins, 381, 471), and in 1813 George Dupree was likewise appointed (Lamar’s Dig., 978-9), yet about those times complainants allege that the former set upr,a claim to an interest in one-sixth and the latter in one-twelfth of the town, including streets, reserved lots and squares. It is therefore, especially important that the highest bona fides 'should be alleged, for these Acts and that of 1796 (Mar. and Craw. Dig., 159) create a confidence in them: Bryan v. Duncan, 11 Ga. R., 77. The cases which may appear to favor complainants are: Bond et al. v. Waters, 22 Ga. R., 641; Walker v. Hunter, 27 Ga. R., 339; Brewton v. Smith, 28 Ga. R., 457; Wynne v. Lampkin, 35 Ga. R., 208. In them the motion was made by the vendor, his heirs, etc., to set aside for fraud on him; his title, therefore, was not denied, for the complainants and defendants claimed through common sources. Would the cancellation have been decreed at suit of. one claiming adversely to vendor? In these cases the Court said there was no remedy- at law, while here a plain one is given, and in them the instruments did not appear upon tbeir faces to be void: 2 Story E. J., 11'; 2 Ga. R., 426. Besides all which, the instruments were deeds which stand upon a footing entirely different from grants and cannot be included in the words, “other writings,” in the section quia timet 3165, for that would produce a conflict of legislation violative of the rules of construction: Phillips v. The State, 15 Ga. R., 521. “A scire facias is the only means which the law provides for the repealing of letters patent, and it lies at the suit of the Queen:” Poster on scire facias, 74 Law Lib., marg. p. 247. Until the -adoption of the Code there was no means by which a citizen could •proceed directly to set aside a patent; it provides scire facias for that purpose. A construction *which would include grants among “other writings” would be objectionable, because: 1. It would be in derogation of Common Law, for it would dispense with the use of the name of the State and contravene all established principles. The name of the 'State must be used even in a qui tam action: O. Kelley v. The Athens Man. Co., 36 Ga. R., 51. 2. It would violate the maxim, “Expressio unius est exclusio alterius.” 3. There is a difference in the,whole purview of the two sections (Haywood v. The Mayor, etc., 12 Ga. R., 409), and each “must be construed with reference to the whole system of which it forms part:” McDougall v. Dougherty, 14 Ga. R., 674. No equity in prayer to settle boundaries: 1. Complainants’ title begins in naked possession, this must be marked by definite boundaries (Adams’ Eject., 582), and extends only to the possessio pedis (Royall v. Lisle, 15 Ga. R., 545) : Jackson v. Richards, 6 Cowen R., 623. 2. If prayer to cancel-is granted, defendants will have nothing to dispute boundaries of, and if it is refused complainants must set up their title at law. 3. But, considered as an' independent ground for equitable interposition. -No case can be shown in which a commission to settle boundaries was granted where the titles of the adjoining proprietors were not admitted and simply the lines in dispute. Here defendants’ title is denied. The proceeding in equity to settle boundaries has always been reluctantly used and never without strong special grounds (1 Story Eq. J., 616, 619: Speer v. Crawther, 2 Merivale, 410; Willis v. Parkman, 2 Merivale, 507). “It would not permit multiplicity of suits” (St. Luke v. St. Lenard, 1 Brown’s Chan. R., 40), for if the defendants only are interested one suit at law will settle all the questions; if others are interested, they not being parties. will not be bound by the decree: 2 Maddox Chan., 455. 4. Because ,a survey in an action of ejectment under order of Court is an adequate remedy: Code, sec. 619, 68 et seq., C. L. Rule. So is processioning: Code, sec. 2349. 5. Part of the premises are alleged to belong to complainants jointly, and part to each of them severally. Is the commission to be one for partition? If so, it will be dismissed *when it appears that the titles are in dispute: Adams’ Eq., marg. p. 230. 6. The land is alleged to touch squares, these belong to the city and it should be a party; yet when “the owner of the adjoining land is made a party to settle boundaries the bill is-multifarious:” 3 Humph. R., 640.
    IV. Laches.
    Eorty-one years elapsed between the surveys and the issuing of the subpoena in this case: Code, sec. 3039; Woolfolk v. Beatty. 18 Ga. R., 520; Edmonds’ Ex’rs v. Goodwyn, 28 Ga. R., 38; Dalin v. Caldwell & Co., 28 Ga. R., 117. It is thirty-two years since sales by Dart and Davis,, and the property has since 'changed hands five times. No notice is charged to have been given to purchasers save that patent on the grants and whatever might have been defective there the State supplied (Act 1837, 261). The Court will, for these purchasers, invoke the rule that every presumption is in favor of a grant: Winter v. Jones, 10 Ga. R., 190; Code, sec. 233. Complainants or their predecessors must have had notice of the grant in 1829, certainly in 1836, when case in R. M. C. was tried. Lis pendens is notice to the world: Edwards v. Banksmith, 35 Ga. R., 213. Bill does not allege concealment, but, on the contrary, shows that public notice was given in a gazette, nor. does it allege newly discovered fraud.
    H. L. Benning, Harris & Williams, for defendant.
    I. The bill is not multifarious. “It will be sufficient if each party has an interest in some one or more matters involved in the suit which are connected with the rest:” Booth et al., v. Stamper, 10 Ga., 116; Worthy et al., v. Johnson et al., 8th Georgia, 238; 5th Ga., 573; 2d Ga., 419; 12th Ga., 61. Multifariousness is mere matter of discretion: 12 Ga., 61. Even at law all claims between the sapie parties may be joined: Irwin’s Code, section 3196. Creditors’ bills could not exist if multifariousness were good objections. So of bills for marshalling assets. If multifarious the bill is amendable.
    *11. There was equity in the bill.
    1. The title of plaintiffs to the land was perfect. First, possession' of all the land for twice twenty years and more: Irwin’s Code, secs. 2637, 2638, 2639, 2640, 2641. Secondly, the presumption of a grant to them, made by the original grantees—founded on the acquiescence of the latter for more than twenty years in such possession: Irwin’s Code, sections 2332, 2640. Thirdly, the assessment of the lots to Jones & Dunning by the city of Brunswick, an Act of December 22, 1858, having declared that when a lot has been so assessed to a person nothing shall prevail against the presumption that it is his, but his written disclaimer of ownership upon the record of the city: Acts of 1857, 167, sec. 8. (See brief of General Acts relating to Brunswick.) Fourthly, grants and deeds to many of the separate lots.
    III. The defendants are offering to sell and threatening to occupy some of the same lands under two Head Rights grants, which cast a cloud over this title of plaintiffs.
    IV. The surveys on which these two grants were founded were void.
    I. The lands surveyed were not vacant, and therefore, not subject to survey. First, they had been dedicated for the city of Brunswick by the King and Parliament of Great Britain, and by the Legislature of Georgia; Act of 22d December, 1832, (pamphlet 206); Watkins Dig., (Act of ’87) 351 ;■ do. 381 (Act of 1788); do. 598, Act of 1796; Marb. & Craw., 158. This Act of 1796 prohibits under pain of $500 00 all persons from running up any part of Brunswick. , Secondly, the site of Brunswick, thus surveyed, was not vacant because all or nearly all the lots therein had been granted by the King or by the State by or before 1800. Act of 1796. Thirdly, the site was actually .occupied, a part as a town, the rest, partly as enclosed fields. 2. The surveys were rendered void by two statutes. First, that of 1796. Secondly, by the Act of 1785 to amend the land Acts, which declares a second survey, made knowingly by the surveyor, shall be void: Cobb’s Digest. 3. Davis was convicted under the Act of 1796 for his participation in the surveys, and Dart only escaped by disclaiming *all right under his survey. And the prosecution was direct by a special Act of the Legislature: Pamph. 1826.
    V. The two grants also were void.
    1. There is no authority given by the Head Rights Acts to issue grants, except on such surveys as those Acts prescribe. 2. The Act of l7'96, by prohibiting the surveys, prohibited1 the grants. 3. The Act of 1785 declares that “No grants shall be signed till the survey has been advertised by the surveyor * * * at least three months, after it has been recorded” by him. This was not done by the surveyor. 4. The State had no title left, to the property: Irwin’s Code, 2330. 5. The grants were procured by fraud. Dart and Davis, by false and fraudulent assurances preventing the owners of the lands from filing caveats against the issuing of the grants.
    VI. “The proceeding quia timet is sustained in equity for the purpose of causing to be delivered up and cancelled * * * any forged or other iniquitous deed, or other writing, which, though' not enforced at the time, either casts a cloud over complainant’s title, or otherwise subjects him to future liability or present annoyance, and the cancellation of which is necessary to his perfect protection”: Irw. Code, sec. 3165; Walker et al., v. Hunter et al., 27 Ga., 336; Bond & Pattillo v. Watson, 22 Ga., 641; Butler v. Durham, 2 Ga. 422. A grant is a “deed,” is a “writing.”
    VII. '“Fraud will authorize a Court of Equity to annul conveyances, however solemnly executed”: Irwin’s Code, sec. 3121'. A grant is a conveyance.
    VIII. “Grants may be impeached before the Courts where they are void on their face, or are issued without authority of law, or against a prohibition in a statute, or for property to which the State had no title”: Irw. Code. sec. 2330: Few v. Guppy, 1 Myl. & Craig, 487; Foster on Sci. Fa., 244.
    IX. “Equity will entertain a bill of peace * * * to avoid a multiplicity of suits by establishing a right in favor of or against several persons which is likely to be the subject of legal controversy; or in other similar cases”: Irw. Code, section 3166.
    X. Equity has jurisdiction in cases of confusion of boundaries: *1 Stor. Eq., sections 615, 619, 621. Adam’s Equity, 327-8 marg.
    XI. Equity has jurisdiction where there is no adequate remedy at law: Irw. Code, sec. 3026.
    1. Ejectment manifestly is not adequate. Nor is scire facias.
    1. The section of the Code (Irw. Code, sec. 2329,) as to sci. fa., does not apply to this case, but only to cases in which “Officers of the State” are in some manner culpable. 2. The bill prays for the discovery of several important facts. 3. It prays for a settlement of boundaries, and for the ascertainment of boundaries. 4. It prays for a Receiver and for an account. 5. It waives the tort of the sale by the defendants of some of plaintiff’s lots, and goes for the purchase-money.
    
      
      EQUITY JURISDICTION—REMOVAL OF CLOUD UPON TITLE.—See foot-note to Wynne v. Lumpkin, 35 Ga. 308.
    
    
      
      GRANT— CANCELLATION—STATE AS A PARTY.—“As was decided by this court in Parker v. Hughes, 25 Ga. 374, ‘A grant from the state cannot be set aside in any proceeding to which the state is not a party.’ If the decision in Dart v. Orme, 41 Ga. 376, is in conflict with that rendered in the case first mentioned, the older, under our statute, is to be followed as the true law. It would seem, however that these two decisions are not inharmonious. It results from the above that though one who has filed a caveat .to an application for a head-right warrant fraudulently obtains from the state, a grant to the land in controversy, and thus prevents the applicant, who would otherwise have been entitled thereto, from receiving such a grant, the latter cannot, in his own name and right, maintain against the former a proceeding by scire facias for the purpose of setting aside and cancelling the grant so fraudulently obtained.” Calhoun v. Cawley, 104 Ga. 335, 30 S. E. Rep. 773. See the same case, p. 341, where Dart v. Orme, 41 Ga. 376, is distinguished from Parker v. Hughes, 25 Ga. 374.
    
   WARNER, J.

The complainants allege in their .bill that they are the owners of certain described lots in the city of Brunswick which had been surveyed, marked out, and dedicated to the public for a city in the year' 1733, claiming to derive their title to the lots in said city under ancient grants made by the Crown of Great Britain, and the State of Georgia; that many of said lots had been granted by the King before the revolution, and many by the State since the revolution; that before .the year 1800, all the lots in the city of Brunswick had by grant, or sale, passed from the King and State into private hands. The complainants claim the lots in question by purchase and possession, under the aforesaid ancient grants, as the original source of their title, though not as joint purchasers of the several lots claimed by them. The complainants further allege that in the year 1826, Davis and Dart, under pretense of authority under the Head Rights Acts of this State, surveyed said lots, so dedicated and granted as aforesaid, as vacant lands, and obtained grants therefor from the State, which survey of the lots under the Head Rights Acts by Davis and Dart, is alleged to have been fraudulent and void, without authority of law, and in violation of the *law, because the said lots were not vacant lands, but had been and still were dedicated for a city, the city of Brunswick, and constituted the site of the' city of Brunswick which had in 1733 been, by General Oglethorpe, acting under the authority of the King of Great Britain, planned, surveyed, and dedicated as a city; and which was recognized and confirmed by the several Acts of the Legislature of this State, passed in the years 1787. 1788 and 1796. It is further alleged by the complainants in their bill, that the two grants which were issued by the State to Davis and Dart under the Head Rights survey are void, because, issued without authority of law, against the prohibition of statutes, and for property to which the State had no title, and because procured by fraud. The complainants further allege in their bill, that the defendants are offering to sell the lots claimed by them, under their said fraudulent and void title, and are threatening to occupy the same, and that the effect of such conduct is to cast a cloud over the title of complainants, and greatly diminish the value of their property. Wherefore, the complainants pray for a discovery as to the fraudulent and complicated transactions alleged and set forth in their bill, and that the defendants may be restrained and enjoined from selling or taking possession of any of the lots claimed by complainants, and that they may be decreed to bring into Court the alleged fraudulent grants, and that the same may be cancelled and decreed to be null and void.

To this bill of the complainants the defendants demurred. First, because it was multifarious. Second, because there was no equity in the bill which entitles the complainants to the relief prayed for, and because they have an adequate remedy at Common Law. The Court below overruled the demurrér, and the defendants excepted, and now assign the same as erfor here.

Although the complainants are not joint purchasers of the lots claimed by them, yet, they claim to derive their title to the same from one common source, they claim title to the lots under one general right, and where several persons claim under one general right, they may file one bill for the establishment *of that right, without incurring the risk of a demurrer for multifariousness, although the title of each plaintiff may be distinct: 1st Daniel’s Chancery Practice, 396. The objection to a bill on the ground that it is multifarious, is not, as a general rule, favored by the Courts.

A dedication of land to the public for a city is, in its legal sense, a solemn and direct appropriation of the land for such use and will be enforced. If, as alleged in the complainants’ bill, the land comprising the site of the city of Brunswi.ck was dedicated by the Crown and provincial authorities of Great Britain to the public for a city, the site selected, a plan of streets, squares and boundaries was adopted, and, by that plan, the site was surveyed, marked out and dedicated to the public for a city, before the revolution, and if such dedication was recognized and confirmed by the legislative authority of the State, after the revolution, and the lots had^ been granted and the title thereto had passed to private persons under such grants, issued either under the authority of the Crown of Great Britain before the revolution, or under the authority of the State since the revolution, then, the title to the lots embraced within the boundaries of the site comprising the city of' Brunswick had passed out of the State, and the State had no title to the same at the time of the survey of Davis and Dart under the Head Rights law in 1826. It is expressly alleged in the complainants’ bill that the lots surveyed by Davis and Dart as vacant lands, under the Head Rights Acts, were not vacant lands at the time the survey was made. This Court in Moody v. Flemming (4th Ga. Rep., 116) held, that lands were not subject to survey and to be granted in this State on Head Rights, unless they are vacant lands, thus giving an interpretation to the Head Rights Acts. Besides, the sixth section of the Act of 1796 prohibits any person or persons, under a penalty of five hundred dollars, from making an attempt to run up the commons of the towns of Brunswick and Frederica, and declares that all surveys heretofore made and grants surreptitiously obtained are null and void: Marbury and Crawford’s Dig., 159.

Taking the several allegations in the complainants’ bill to *be true, the State had no title to the lots in controversy at the time Davis and Dart obtained their grants under their survey under the Head Rights Acts, and the survey made by them of the lots in question was void under the provisions of those Acts, the same not being vacant lands.. And inasmuch as the survey of the lots made by them in 1826 was not only without authority of law but in violation of the public law of the State, the grants obtained by them from the State for the lots included in their survey, are also void, and they acquired no title to the land under them, even if the State had not previously granted the land and divested herself of the title thereto.

The prayer of the complainants is that the alleged void grants may be delivered up and cancelled, inasmuch as they create a cloud upon their title and the threatened proceedings of the defendants are calculated to diminish the value of their property. The defendants insist that the complainants have an adequate and complete remedy at law. It is true that under the provisions of our Code, in a contest between individual citizens, grants to land may be impeached before the Courts where they are void upon their face or are issued without authority of law, or against a prohibition in a statute, or for property to which the State had no title: . Code, section 2330. It is also true that this may be done without making the State a party to the suit, but, in our judgment, according to the allegations made in their bill, the complainants’ remedy in a Court of law would not be as complete and effectual as in a Court of Equity. Besides, a Court of Equity will entertain jurisdiction in order to avoid a multiplicity of suits.

A Court of Equity has jurisdiction to have the alleged fraudulent and void grants brought into Court and to decree that the same should be delivered up and cancelled as they have a tendency to throw a cloud over the complainants’, title: 2d Story’s Equity Jurisprudence, section 700; Brenton v. Smith and wife. 28th Ga. Rep., 442; Wynne v. Lumpkin, 35th Ga. Rep., 208. The demurrer being a general demurrer to the whole bill for want of equity, there was no error in *the judgment of the Court below in overruling it. Let the judgment of the Court below be affirmed.  