
    SMITH’S LESSEE vs. WINTON.
    Whiteside, for the defendant
    supported a rule for a new trial, obtained last term, by the following affidavit.
    “Alexander Outlaw maketh oath, that since the trial of said cause he hath ascertained, that the grant under which the lessor of the plaintiff claims, purporting to be for 50,000 acres was fraudulently obtained from the state of North Carolina; that warrants and plats of survey were never filed in the office of the secretary of said state and none can be found, as he is advised and believes, that if any survey ever was made, on the land specified in said pretended grant, that said Stockly Donelson, to whom the grant issued, never applied a genuine warrant to it.
    
      That the defendant in ejectment against whom a verdict has been obtained has since the trial discovered that the grant under which the plaintiff claims was fraudulently obtained from the State, and since the trial he has also discovered that a prior grant for the land had issued to a third person, are not sufficient causes to authorise the the granting a new trial.
    This deponent further states, that he can prove on another trial, that said grant was founded in fraud, and no warrant, or warrants to authorise the secretary, and governor of North-Carolina, to issue a grant were ever applied to said grant, or the survey on which it was founded if any was made; or filed in the office of the secretary of North Carolina.
    The deponent further states, that the plat and certificate, which appears attached to said grant, purports to be a survey of 50,000 acres including the vacant land within certain limits previously granted, which are the same specified in said grant which had been previously granted; and the deponent has lately and since the trial had in said cause, ascertained, that a genuine grant for the same land claimed by the defendant, beside the grant, under which he claims, had issued before the date of said pretended survey, and that said last mentioned grant is now in existence, and that it, or a correct copy of it, can be produced on another trial, which would shew, with the evidence, that can be given of said pretended plat, and certificate of survey, that no title to the land claimed by said defendant, could be derived from said pretended grant of 50,000 acres. This deponent further states, that said defendant had no knowledge of the facts above stated, as the ground for a new trial, nor before the former trial in said cause; and this deponent has ascertained the same since said trial, being interested in said cause, as said defendant claims under him.”
   Overton, J.

(Sitting alone.) There are two grounds made for a new trial both of which came to the knowledge of the defendant, or his agent Outlaw, since the last trial. The first is that there was fraud used in the procurement of the grant b Donnelson, of the 50,000 acre tract; upon this part of the case, it is sufficient to observe, that whatever my own opinion might be respecting the reception of evidence in a court of law, to invalidate a grant for fraud, I am bound by the decision of a majority of the court.

In North Carolina, we know that such evidence is not admissible, as will appear by the uniform current of decisions, reported by Haywood, in his first volume. Nor does the case in 2 Haywood, 98, in the smallest degree weaken other decisions on this subject,the ground of that decision being entirely different. It is however insisted, that the third and ninth sections of the act of Nov. 1777, c. 1. warrants the introduction of any evidence which may go to shews, that the grant was not obtained agreeably to law. What the state might do in repealing, or avoiding, a grant by sci. fa. I will not undertake to say ; but certain I am, that the act of 1777, provides no remedy after the issuance of a grant between citizen and citizen;

It is not new necessary for me to say how the practice of permitting equitable matter to be given in evidence to a jury in ejectment, came into existence ; nor whether it be consistent with legal principles, or not. If it is permitted, that evidence of an equitable nature may be given on one side, it cannot be refused on the other.

Suppose the testimony contemplated by the first ground to be introduced, it would certainly be competent to the claimant under the 50,000 acre grants, to introduce testimony in support of his claim. He would shew that he was a purchaser for a valuable consideration, without notice of fraud; and then the defendant would be estopped. But it is argued, that once a fraud always a fraud. Whence this noted aphorism could have arisen, I am not able to say. The expression is used in the case of Baugh vs. Price, in first Wilson’s Reports, and if it is applied to cases similarly situated, it is correct. From my understanding of the books, it seems to be a principle clearly deducible from them, that a man who has a legal title to land, which he procured fairly, and a for bona fide, consideration, without notice of fraud in others, never can he touched or affected in any court either of law, or equity. See. Rob. F. C. 502. Maryl. Rep 222. 2. Johns. 524,573.2. Ver. 599.751. 271.Amb. 313. 1. Johns. 537. Newton. cont. 510. 2. Eq. C. 244. Cowp. 278; 3. Atk. 407.650 1. Wash. 41. 2. 337. 217. 3. Hen and Mun. 144. 316. 1. Call. 443; 2. Mass. Rep. 508. 4. Mass. 639. Fraud is an objection as it respects the purchase of real property that is always ad haminem. Kam. Pr. Eq. 342. 3. 4. 5. 6. see. Sugd. 86.

A new trial therefore cannot be granted on this ground.

In relation to the second ground taken, it will be recollected, that the grant of 50,000 acres calling for certain limits, excludes lands previously granted. Had older grants been shewn on the trial, it would have effectually opposed the claim of the plaintiff ; but whether we can open the case for the purpose of letting in this testimony, is another question. I am disposed to think we cannot. It would leave too great room for speculation. A man would oppose his own claim in the first instance, so as by way of experiment, to ascertain the hard points, of a cause, and if he failed, then set about hunting up another claim. Grants are of record, and the defendant might have made this discovery before trial. We are not to assist the negligence of parties. 
      
       3. Binn. 54, 66. Rob on F. c. 50 2 Newl. 510. 511 Sugd. 476
     
      
       2 Binn.582 1 Bay. 262
     