
    Lessee of Tarrant against Terry.
    A_suweyw and bounciinj; uicTines of"! t,le was vacant up to his Une at the time of tin*. survey. And he sbail not; afterwards bo suffered to extend his line1; so as to include a mill-seat on the tract adjoining his own; as such transaction is founded in fraud, which will vitiate his grant pro tanto.
    
    His afterwards standing by and seeing his neighbour build a mill or, such mill-seat, without giving him notice of his claim, amounts to a forfeiture of his right, though there had, been no fraud in. extending such lines.
    EJECTMENT to try title to 149 acres of land. The plaintiff claimed under a grant to himself, dated the 6th of April, 1789, which included a mill-seat on a fine 'stream of water, on which a mill had lately been erected by him, at a considerable expense. The defendant, Terry, claimed un-A J der an elder grant to one Lexuis, dated the 16th of 'fu’y, ran so low down in fact, was the 1784, for 640 acres, which, it was alleged, the creek as to include this mill, which, object of the contest.
    It appeared, in evidence, that both these tracts of land had been run out by Lewis himself, who was a deputy-sur-vcyor ; and that at the time the small tract of 149 acres of land was run out, he was not apprised of the mill-seat; but soon after, upon discovering the mill-seat, he extended the lines of his own tract so far down as to include the mill-seat. Tarrant, however, not being apprised of Letvis having extended his lines so as to include the mill-seat, and, being a poor man, rested contented under his survey till it suited him to take out his grant, which was not till 1789, near five years after the date of Lewis’s grant, on which he shortly after built the mill which was the object of this suit.
    The question, therefore, was, who should have the mill j Lewis, who had included the seat in the elder grant, or Tarrant, who had it included in his younger grant l
    
    
      For the defendant it was urged, that Lewis had the eldest grant. That from the face of the plot it appeared that the mill-seat was included in it. It was matter of record, and there could be no averring against it. Tarrant, before the passing of the grant, might have had good grounds for going into a court of caveats, and contesting the right, but as it had passed the great seal, it was too late.
    
      For the plaintiff It was replied, that it never was too late to rectify a fraud. The conduct of Lewis, who was a public officer, was an absolute fraud, practised upon Tarrant. As to his grant passing under the great seal first, it was obtained through fraud ; therefore it ought to be set aside, as far as it affects Tarrant. They urged, that it was one of the great branches of the jurisdiction of a court of chancery, to set aside letters patent obtained through fraud, or false pretensions ; and if a court of common law could come fairly at the facts, it was as competent to that purpose as a court' of equity. They then contended that Lewis being a public officer, he was sworn to do his duty faithfully. That at first he did his duty, by running out his own tract of 640 acres, which was bounded on the lower side, at that time, by va* cant land. He then ran out Tarrant’s small tract of 149 acres, and bounded it on the upper side on his own tract of ij-ÍO acres, which plot was afterwards returned into the surveyor’s office, and is now annexed to 2 'arrant’s grants By this plot of Tarrant’s he admitted, that the land was vacant up to his own line, which he had laid down, and which, unquestionably, included the mill-seat. To attempt, there» fore, to alter lines and plots afterwards, or the location of the land, without the consent of Tarrant, was a breach of duty, and such a fraudulent conduct as a court and jury would not sanction. But what made the conduct of Lewis,, under whom the defendant claims, still worse, was his standing by, living in the neighbourhood, and seeing Tar-rant erect a mill, without once giving him notice that the land was included in his survey, until the mill was completely finished. This the counsel compared to the case of a man who stood by and saw another build on his land , without warning him of his error, where it was held, in equity, that he should lose his land for his fraudulent: ¡seglect.
   Bay, J.

said, that it appeared to him, that the conduct of Lewis, in the first instance, was fraudulent, in the manner and for the reasons stated by the plaintiff’s counsel. That if the jury should be of the same opinion with him, they might consider Lewis’s grant (although the first) void as far as it affected Tarrant’s survey. That with respect to the subsequent conduct of Lewis, who was in the neighbour-hood, and saw Tarrant erecting his mill, under an impression that the land was included in his grant, without once hinting that the land was his, or forbidding him from going on, was, of itself, such a conduct, even if there had been no-fraud in the survey, as would have forfeiced his claim to the land in question. Therefore, in either point of view, whether the jury consider the fraud in the survey, or the culpable neglect or omission afterwards, the plaintiff wav certainly entitled to a verdict.

Desamsure and Calhoun, for plaintiff.

Ramsay and Carnes, for defendant.

The jury found a verdict accordingly.

A new trial was afterwards had by consent, when a second verdict confirmed the title of the land in the plaintiff. 
      
       See this doctrine maintained bj" Lord Chancellor Si’retiT-iiliis, 2 -hb "? ilia East-hulia Vhiwt.
      
     