1. That the land had been surveyed by one Avery for himself; that one Walker fraudulently obtained possession of Avery's field notes, and made sundry entries from them for himself; that he gave the ancestor of the defendant the warrant and the survey upon which the grant sought to be vacated had issued, in consideration of aid rendered to him in defrauding Avery. *Page 322
2. That the survey upon which the grant issued was never actually made by Walker, but was only signed by him as deputy surveyor; that this was known to the grantee when he sued out the grant.
(482) 3. That the survey, upon its face, appeared to have been made by Walker for himself.
These facts were all put in issue by the answer, and on the trial testimony was offered to the jury by both parties.
His Honor, Judge Daniel, informed the jury that if the survey upon which the grant issued was never actually made, as required by law, and this fact was known to the grantee when he received it, such conduct was a fraud upon the State, and vitiated the grant; and also that if the survey was made by Walker for himself, and this fact was known to the grantee when he sued out the grant, it was a fraud upon the land laws, which likewise vitiated the grant. The jury returned a general verdict for the petitioner, and the defendants appealed. The grant is sought to be set aside on the ground that it was obtained by means of several fraudulent acts, which are particularly stated in the petition, and the jury have found that it was obtained by fraud. This may be an inference they have drawn from some of the facts alleged in the petition having been proved, but it is not a necessary implication that it arises from the proof of all of them. Fraud is a compound question of law and fact. The facts going to establish it are decided by a jury. Whether, when proved, they will amount to such a fraud as will vacate a grant is a question for the court to decide. Were this grant to be set aside on this general finding, it would be deciding in the dark; for we have no means of ascertaining of what the fraud found by the jury consisted, and the court ought to have a full assurance that the grant (483) was fraudulently obtained, before it is vacated. The issues ought to be tried again, and the specific facts constituting the fraud ascertained by the jury, who may infer fraud; but then the court will be enabled to determine whether it be so in point of law.
PER CURIAM. Judgment reversed. *Page 323