In Equity. — Bill to enjoin proceedings at law, *Page 315 and for relief. See the case of Cocke v. Dodson and Finley.
It states that the defendant Cocke has obtained an older grant for the land than the plaintiff. That this grant of the defendants was obtained upon an entry under these circumstances.
1st. It was made over Brown's line on the 14th of March, 1778, for 470 acres, which by law could not be done, as the lands over that line were allotted to the Indians. The entry was in the name of John Ogle, for the benefit of William Parker, to whom a warrant of survey issued.
2d. The defendant Cocke procured this warrant from Parker, by assignment, agreeing at the same time to pay the purchase-money to the State.
3d. That neither Parker nor Cocke, nor any other person, ever paid the purchase-money to the State.
4th. That the warrants under which both Cocke and the plaintiff obtained their grants were removed, but that as the defendant was not authorized to make an entry within the Indian hunting-grounds, the warrant of survey, which issued in consequence of it, was void, and could not authorize the issuing of a grant. In this respect the State was deceived, and the grant void.
5th. That there was an agreement between the defendants,, that Stewart, who afterwards surveyed the land, should have an interest in it; and, in consequence of this agreement, Stewart fraudulently and falsely certified on the back of Cocke's warrant that the land where it was entered was lost, or taken by a better claim, so as to authorize its removal, when, in truth, the land entered was not lost or taken away by a better claim. Its removal to the land now contended for was therefore illegal, and, on that ground, the grant was void.
6th. The grant to Cocke states, as the consideration, the payment of 10l. for each hundred acres, which indicates that the entry was made in John Armstrong's office, when, in truth, the entry was made in the county office of Washington, commonly called Carter's, where the consideration, if paid, would have been fifty shillings per hundred acres; *Page 316 but no money ever was paid. This is evidently a fraud, and will render the grant void.
Prayer for discovery against Stewart, and discovery and relief against Cocke.
Demurrer — the nature of which will be perceived from the arguments and opinion of the Court.
WHITESIDE, in support of the demurrer, said that the defendant Stewart, by the plaintiff's own showing, had no interest; therefore the demurrer, as to him, is surely good.
As to Cocke, in whom the right of the land resides, by the grant to him, it is not a matter to be inquired into by this court, whether the consideration was paid to the State or not. It was the duty of the entry taker to receive the money before permitting the entry. If he did permit it, he became liable to the State upon his bond; it is not however urged that Cocke ought to have paid the State, — Parker ought to have paid it; he made it, and Cocke, who afterwards purchased the warrant of Parker, had nothing to do with the State as to the payment of the money. The plaintiff has no ground upon which he can complain in this court. It has long been established by the decisions of the courts, that, when two grants are obtained for the same piece of land without entries, or, which is the same thing, upon removed warrants, that the oldest grant holds the land; the surveys are not taken into consideration at all. From this reasoning it results, that, when Donnelson, under whom the plaintiff claims, perceived, that the State had granted the land, he ought to have stopped his hand, and surveyed at another place. He had no precedent equitable claim, as by an entry to the land, and therefore no foundation upon which he can erect a complaint in equity. In this case the plaintiff, or the person under whom he claims, obtained a grant upon a removed warrant, for which the defendant had previously obtained one; and, to avoid the grant of *Page 319 the defendants, six grounds have been taken as stated above. As several of these positions involve principles of considerable consequence to the peace of society, it may be material to consider the common law first, and see what light can be collected from thence.
First. Premising, however, that the concession of the plaintiff's counsel in relation to contracts seems to be correct in general. The grant of a State stands in the same situation as the contracts of individuals by deed as to principle. It is not material to inquire minutely how far, and for what causes, the State can avoid their grants upon the principle of deception. Even in England, where the acknowledged rights of royalty confer privileges unknown to the ordinary rules of law between man and man, the better opinion seems to be that the king cannot avoid his own grants for every mistake or deception. In this respect the law seems to be correctly laid down in Kemp's case, 12 Mod, 78, that if the king is not deceived by the false suggestions of the grantee (which is always stated by way of recital), but only mistaken by his own surmises as to fact or inferences of law, the grant shall be good if not contrary to the rules of law; and in such cases he cannot avoid his grant. Now, neither of the grants before us contain any recital of the suggestions or information of the parties. The grants specify the receipt of the consideration, but this is held to be unimportant; nor is the point intended to be decided that the State cannot repeal or avoid a grant itself where an officer has issued one without having received a consideration. If, however, the law respecting the king's grants were to decide the case, it would seem that the grant could not be avoided by the State. Conformably to the position conceded by the plaintiff's counsel, we must judge of this case as if it were the deed of an individual, with the exception of this principle, which is believed to be incontrovertible, that the State is never supposed to have committed a fraud. Frauds may be committed on them, but not vice versa. In the case of two individuals, could the plaintiff, under the circumstances of his case winch he has disclosed to the Court, avoid Cocke's deed or *Page 320 grant by the principles of the common law? It occurs strongly that he could not. Previously to the statute of the 27 Eliz. c. 4. a deed could not be avoided for fraud unless the person seeking the avoidance had a claim to be prejudiced at the lime the fraud was committed. 3 Co. 83; Cro. El. 445. The doctrine of Lord Mansfield, in Cowp. 434, that the common law covered all the cases embraced by the statutes of 13 Eliz. c. 5, and 27 Eliz. c. 4, is repudiated so far as to enable subsequent purchasers of real estates, under particular circumstances, to avoid prior conveyances. By the common law, I take it to be a clear principle that a subsequent purchaser of real estate for a valuable consideration could not avoid a previous voluntary or fraudulent conveyance. The ancient law did not consider a man who purchased with his eyes open, after a former conveyance (no matter for what cause it was made), as injured, therefore afforded no remedy. In. Baily v. Merrill, 3 Bulst. 95, Croke, J., lays down the rule to be, "that fraud without damage or damage without fraud gives no cause of action, but where these two do concur there an action lieth." After making the statute of 27 Eliz. c. 4, in order the more effectually to suppress fraud, the courts gave the statute an operation which the common law did not possess, to wit, that a person purchasing and taking a conveyance, after a voluntary and fraudulent one, might avoid it. This statute however operated upon the intent of the person conveying; if he were innocent, the statute had no operation, — the case stood as it was at the common law.1
It appears, then, that the statute of 27 Eliz. c 4 cannot be made to bear upon the plaintiff's case, for it will not be asserted that the State, when they conveyed the land to Cocke, intended to defraud the plaintiff, when his claim was not thought of at the place where he now claims; nor in fact can it be legally said that they intended to defraud any person. The State itself, by deception or misrepresentation, might have been defrauded by others, but that induces a different consideration. From this view it results that we must judge of the plaintiff's case without the aid of 27 Eliz. c. 4, and that as the *Page 321 defendant had previously obtained his grant, the plaintiff who obtained one afterwards, without a previous-entry, cannot avoid it for fraud, misrepresentation, or deception in the grantee, because that deception did not operate to his prejudice, having then no right to be prejudiced. Res inter alias non nocet.
We will now consider the case as it respects the land law of the State. There are three principal divisions of claims.
First, county claims.
Second, military.
Third, John Armstrong's.
In order to the institution of a claim under the first division, it were necessary that a person should pay the consideration before an entry. It therefore follows that an entry is of itself evidence of the payment of consideration after a grant has issued. Being matter of record, no evidence can be received to contradict it. If in fact no consideration were paid, the entry taker and his securities are liable for the money.
The second kind of claims were founded upon meritorious services, of which the officers appointed by law were the judges, and after the issuing of grants it never can be a question with the judiciary whether services were performed or not; the State, through the medium of their officers, were the competent judges of that, and their opinion should be conclusive on us.1
The third kind of claims seems to admit of the same rules of law as the first. In either case the grant is evidence in controversies between individuals, that all previous requisites of the law in relation to it had been complied with; and this presumption is conclusive as to claims by entries or grants originating afterwards.2
The entries in John Armstrong's office are all extant; but the grant of the defendant does not recite the entry upon which it was obtained. It acknowledges the receipt of 10l. per hundred, and we *Page 322 have no legal means before us, as it respects the claim of the plaintiff, of knowing that the money was not received. If the plat annexed to the grant (which makes no essential part of it),3 should recite a Carter's warrant, which perhaps it does, and the grant should acknowledge the receipt of 10l. instead of 2l., per hundred, it would not avoid it; the consideration, being personal, cannot be inquired into.4
How far the State itself may avoid a grant by sci. fa. for deception we do not undertake to say; either as to the grantee himself, or persons claiming under him, with notice express or implied from the annexation of the plat to the grant. But in all cases where the State has authorized the entering or granting of lands of any particular kind or description, on the ground contended for, then we understand that the grant is good as respects claims set on foot afterwards, notwithstanding irregularities that may have taken place in obtaining it.5 In the words of the grant, there is no condition precedent. On its execution the estate vested, and cannot be avoided or divested, for any condition subsequent, but by the person or State making conditions precedent; the State had therefore, for all that appears in the detendants' grant, taken upon themselves the responsibility of seeing that the preliminary requisites of the law were complied with. If they had not, the State grants here would contain recitals of the information of the grantees upon which they were made, as by the English law they must do or the king takes a knowledge of the consideration on himself.1
By the same law. a purchaser must look to the title he is buying, from its foundation; at least as far back as any statute of limitation2 would run: sixty years in England. If he is purchasing an estate derived under the grant of the king, that grant would disclose that it was made upon certain suggestions, on the truth of which the estate would always depend. The purchaser then would know from the grant the consideration, the verity of which it would be incumbent on him to ascertain.3
Apply the same principles to our grants, and they *Page 323 will be correct as to under or second purchasers, but never can otherwise.
It is however worthy of remark with respect to these recitals, that, in England, they found it necessary to pass many statutes for the quiet of purchasers who derived their claims under the crown.4
The ideas of Mr. J. Yeates, of Pennsylvania, 4 Dall. 204, 205, upon a similar occasion, are not inapplicable on this. When speaking of land forfeited to the government, he observes, "If the lands are forfeited in the eye of the law, though they have been fully paid for, the breach of the condition can only be taken advantage of by the commonwealth in a method prescribed by law. Innumerable mischiefs and endless confusion would ensue from individuals taking upon themselves to judge when warrants and surveys (and grants too in this country) cease to have validity;" or whether any in the commencement, if issued by the State, might be added, "and making entries on such land at their will and pleasure. If the expressions of the law were not as particular as we find them, we should have no difficulty in pronouncing that no persons should take advantage of their own wrong; and that it does not lie in the mouth of men like those we are speaking of to say that warrants are dead; we will take and withhold the possession, and thereby entitle ourselves to reap benefits from an unlawful act.5
The circumstance of the entry having been over Brown's line can have no effect; the entry being valid at the time it was made. We cannot notice the dare of the survey in this case, there being no law of North Carolina directing that it should be made a record, as there now is by the law of this State.
The arguments of the defendants' counsel, respecting the parties to the suit and removals, seems to be correct. Demurrer allowed, and bill dismissed.
NOTE. — See this case commented on in Polk's Lessee v. Wendell, 5 Cranch. 305, 306. See, also, Crutchfield v. Hammoch, 4 Hum. 204. The last paragraph on the preceding page is an exact reprint of the original. The reader must make what he can of it. — ED.
1 See Roberts on Fraud. Conveyances.
1 Plow. 455, Wroth's case; 3 Mass. 379; 3 Call, 495; Hardin, 362; 4 Dall. 220; Taylor and Quarles v. Brown, S C., U. S. 1812.
2 See 2 Bay, 426, 464; 1 Hen. Mun. 306; 2 Wash. 114-116; Hardin, 13, 75, 102; 1 Wash. 113; 1 Hayw. 358, 359; Hardin, 362; Taylor Quarles v. Brown, S. C, U. S. 1812.
3 Polk's Lessee v. Hill et als. Federal Court, West Tennessee, 2 Tenn. 433.
4 6 Co. 6; 5 Co. 93; Jenk. 304; 10 Co. 67; Freem. 332; Plow. 455.
5 See 3 Cr. 70, 71, 1 Hay, 358, 359.
1 Com. Dig. tit. Grant G.; 9 Jenk. 303, pl. 77; 17 Vin. Ab. 104-114; Stat. 6 H. VIII. c. 15; Dyer, 252, pi. 25; 12 Mod. 77; 3 Cr. 70.
2 Sugd. 239 et seq.
3 Binn. 455.
4 See Stat. 4 5 P. M. c. 1; 34, and 35 H. VIII. c. 21; 1 E. VI. c. 8; 18 Eliz. c. 2, and others on the same subject.
5 The principle of public utility has a strong bearing on the question, whether it were competent to individuals, in lucrocaptando, to institute claims upon the errors or frauds of others; in this country it would open a door for endless contention and litigation. It is said in Kaim's Pr. Eq. 405, "that whenever public utility is at variance with justice, a court of equity ought not to enforce the latter, nor suffer it to be enforced by a court of common law." Vide pp. 373, 376, 404-406, of the same book.