The opinion of the Court was read at the ensuing October term, as drawn up by
Mellen C. J.We have listened with attention to the arguments of the respective counsel, and have since deliberately re-examined the facts, and the principles adduced to support and resist the motion for a new trial; and although for some time we were not able to unite in any conclusions, yet on further discussion and reflection, we became satisfied with the opinion which we have formed. This opinion, with the reasons on which it is founded, will now be delivered.
Several reasons have been urged by the counsel for the demand-ant in support of the motion; these we will consider separately, though not in the order in which they are presented in the report.
1. As the deed from the committee contains no exception of the acre previously conveyed by Budge to McGlathry, it is contended that the tenant has no right to impeach the deed on any of the alleged grounds; but as it is admitted that he claims under McGla-thry, he has a direct interest in the question in issue, and has the same right to impeach.the conveyance on those grounds as McGla-*185thry liiraself would have if he were tho tenant in this action. This simple answer is sufficient, without being further extended.
2. It is denied that McGlathry was a settler, within the true meaning of any of the resolves offered in evidence; and that if he was a settler, he had not complied with the terms prescribed, and so was not entitled to a deed of the disputed acre from the committee. The answer to this objection is plain and obvious. Neither of the parties in this case, nor tho committee, ever considered him as the original settler, but only as the assignee of a settler. The deed from the committee describes James Budge as the original settler, and they recognized him as such. This objection, therefore, may at once be laid out of the caso as wholly unimportant.
3. The third objection has an intimate connection with the one just answered, and a part of it is involved in that. This however proceeds on the ground that, although McGlathry was the assignee of Budge, still he was not such a legal representative of him, as to be entitled under any of said resolves, to a deed of the acre from the committee of the Commonwealth. This argument seems to the court to be founded upon too narrow a construction of the terms “ legal representative.” We apprehend the legislature never could have intended merely the “ heirs, executors or administrators” of a settler, to tho exclusion of his legal assignees. Such a construction would be an unreasonable limitation of the bounty intended by them, as it would have operated to prevent settlers from realizing any advantages from the provisions of the resolves directly or indirectly, in case of a transfer of their possessory interests. Besides, the argument of the demandant’s counsel is unfortunate in being liable to the objection that it proves too much. By the report it appears that Budge conveyed all his farm, (except the acre in question,) to Peck, who conveyed the same to Wilde; and he conveyed an undivided moiety of the same to French and the demandant. Now Peck, under whom the demandant claims, and McGlathry, under whom the tenant claims, were both of them assignees of Budge, in different proportions; and one of them was as well entitled to a deed from the committee as the other. And if nothing could legally pass by their deed to an assignee of Budge, because he was not his legal *186representative, according to the construction of the demandant’s counsel, then it would follow that nothing passed by the deed to Peck; the consequence of which would be that upon that principle, if on no other, there ought to be judgment on the verdict.
4. In the next place it is contended that by the seventh provision in the first section of the act relating to the separation of the District of Maine from Massachusetts proper, and forming it into a separate and independent State, the deed from the committee to Lapis'll, French and Stetson has been confirmed ; and as the foregoing provision, with others, is incorporated into the constitution of this State, no tribunal thereof can now legally invalidate or set it aside. The language of the above mentioned provision relating to the point is this;- — “All grants of land, franchises, immunities, corporate or other rights, and all contracts for, or grants of land not yet located, which have been, or may be made by the said Commonwealth, before the separation of said District shall take place, and having, or to have effect within the said District, shall continue in full force, after the said District shall become a separate State.” It is very questionable whether the above cited provision was intended to have any relation to conveyances made by the agents of the Commonwealth, in the common form of deeds. It would seem from the words “ grants of land, franchises, immunities, corporate and other rights,” that the immediate acts 'of the legislature were intended. But, be that as it may ; the expression is that they “ shall continue in full force”; which implies legal and effectual grants, and, as such, being then in force. But we can never presume that the legislature intended that grants of deeds should be more binding and sacred in this State and in its judicial courts, than they would have been in the judicial courts of Massachusetts, provided Maine had never been erected into a separate State. It would be a singular construction of the language quoted, to consider it as designed to confirm and sanction a deed fraudulently obtained from an agent of the Commonwealth, and to deprive the courts of justice in this State of the power of exaniining and deciding a title, depending on such deed, according to the unquestioned principles of the common law. We do not feel at liberty to countenance this objection.
*187g. The next objection relied on has reference to the instructions of the judge to the jury on the subject of the alleged fraud in the procurement of the deed by the demandant from the committee. He instructed them that “ if the committee had before them the evidence of McGlathry's title to the acre under Budge, but it escaped their attention, and therefore was not noticed in their deed to Lapish and others ; and if Lapish when he took the deed then perceived, though for the first time, that the acre was not excepted, and took the deed with intent to defraud McGlathry, to deprive him of the acre, and to hold it against him; this would vitiate the deed, as to that acre, and so far render it void and “ that it would be a fraud, not only on McGlathry, but on Budge, his warrantor of the acre.”
It is contended that this instruction cannot be sustained upon legal principles; that unless the demandant was instrumental in causing the omission of the exception of the acre in the deed of the committee, his mere silence when he saw the mistake which they had carelessly made, and his receiving the deed under such circumstances, did not amount to a fraud on his part which would vitiate the deed; though it might render Lapish, French and Stetson trustees of the acre ; and, as such, compellable in a court of equity to convoy the same to those entitled to the estate therein. In support of this objection it has been urged that the whole subject in relation to the contending titles to the acre conveyed to McGlathry, and afterwards by the committee to the demandants and others, has recently undergone a critical and laborious examination in the Circuit Court of'the United States in the case-of Dunlap & al. v. Stetson, 4 Mason, 349; and that the learned judge who tried the cause decided that there was no ground for the imputation of fraud on the part of the grantees, but that the deed, as to the acre, conveyed an estate to them in trust. The force of this argument disappears when we consider that the case abovementioned was a bill in equity, and that the defendant in his answer had expressly denied all fraud and management; and the answer being under oath, and not disproved, was of itself proof that no fraud existed in the obtainment of the deed from the committee ; or at least it removed all presumption of fraud; and even if any existed, the case was left destitute of all proof of it. But- the *188case furnishes us with no principles of law repugnant to those delivered to the jury in the instructions we are considering. On the contrary, principles directly establishing the same doctrine are strongly stated. He observes — “ would it be pretended, that if a man should fraudulently procure from the Commonwealth a title to lands intended for another, either by its bounty or its contract, by misrepresenting himself to be that person or his assignee, that he should possess the land, thus procured by his fraud or misrepresentation, free of all claims of the injured party ? That because his deception had been complete, therefore it should constitute and perpetuate an unimpeachable title ? A court of law would not hesitate to set aside such a conveyance. No conveyance is so sacred, that, if infected by fraud, it may not be overturned.” Again he observes, when speaking of the grantees, — “ If they represented themselves as the sole owners, or, knowing the mistake of the commissioners, if they took the deed, intending to defraud 'McGlathry, the transaction, both at law and in equity, would be pronounced void for the fraud, and the deed be set aside on that account as well against McGlathry and his assignees, as against the Commonwealth.”
We have examined the eases cited by the counsel for the demandant, but do not perceive that any of them, except Laidlaw v. Organ, 2 Wheat. 178, have any special bearing upon the point now under examination. In that case Organ, having heard of the news of peace at New Orleans, purchased a quantity of tobacco of Laidlaw who had not heard of it; and a few moments before the sale was completed, being asked whether there was any intelligence calculated to enhance the price of tobacco, Organ remained silent. Marshall, C. J. says — “ The question is whether the intelligence of extrinsic circumstances, which might influence the price of the commodity, and which was exclusively within the knowledge of the ven-dee, ought to have been communicated. The court is of opinion he was not bound to communicate it; but at the same time each party must take care not to say or do any thing to impose upon the other. It would be difficult to circumscribe the contrary doctrine within proper limits, where the means of intelligence are equally accessible to both parties.” A note is added by the reporter from Pothier in *189these words : “ Where the vendee conceals from the vendor the knowledge be may have, touching the thing sold, and which the vendor may not possess, it does not vitiate the sale ; because the vendor ought to know best the quality of the articles ho sells ; and if he does not it is his own fault.” In the above named case the principle decided had reference to the intelligence of extrinsic circumstances, as it is expressed, or the general knowledge of business or public events ; and the note subjoined has reference to knowledge of some fact, in relation to an article, possessed only by the vendee. In the case at bar no want of knowledge is imputed to either party. The instruction complained of was, that if the committee knew of the title of McGlathry to the acre, but that the fact escaped their recollection when they made the deed; and if Lapish saw their mistake, arising from that forgetfulness, but fraudulently received the deed with intent to hold the land which belonged to McGlathry ; then such a transaction would vitiate and avoid the deed. Thus far, certainly, a difference exists between the cases. That case seems to us to go as far as moral principles will justify, even in cases of that description, depending on public intelligence; and further than the same Court seemed willing to go in the case of Etting v. Bank of United States, 11 Wheat. 59. In that case it appeared that McCullough had been cashier of the Branch bank at Baltimore, and had been guilty of a fraudulent appropriation of a large sum of money belonging to the bank to his own use. The fact being discovered, it was resolved on by the directors that he should be removed. He was immediately called upon for security, which after some time was procured. As a part of the security furnished, a note was given by McCullough, indorsed by Etting. After the bank had obtained security in full, and not till then, McCullough was immediately removed from the office of cashier. As soon as Etting discovered what the transactions of the directors had been, he refused to pay the note, on the ground that he had been misled, deceived and defrauded by their conduct, and the concealment of the facts from his knowledge. A verdict was returned in favor of the defendant. The Circuit Court instructed the jury that if they should find that the directors contemplated, though they did not *190promulgate, the removal of the cashier as soon as security should be furnished ; that Siting indorsed the note in ignorance of the fraud of the cashier, or probability of his removal; and that he would not have indorsed the note had he known the circumstances; and that the bank did not disclose their intention to remove the cashier, lest it should increase the difficulty of his procuring security or prevent it; yet if Stiing indorsed the note at the request of the cashier, without making any inquiries of the bank, or having any communication with them, the plaintiffs were entitled to recover; and that the note was binding on the defendant, unless he had shown such inquiries or communication, and a misrepresentation or concealment on the part' of the bank. The court were requested by the counsel of Siting to instruct the jury that if they should find that the directors knew of McCullough’s fraud and insolvency; that thereupon they resolved to remove him, but concealed the facts and continued him in office for the purpose of obtaining security, and that Siting was ignorant of the above facts; that then the plaintiffs were not entitled to recover. But the court refused to give this instruction, unless the jury should be further of opinion that the defendant was led into .this state of ignorance in consequence of inquiries made of the plaintiffs, or some previous communication between them and him. Etting’s counsel filed a bill of exceptions, and thereupon a writ of error was brought. After long and learned argument, the court, consisting of six of the judges, were equally divided; and though by the rule of the court in such cases, the judgment was affirmed, yet the case shews that the court did not sustain the opinion of the Circuit Court, that inquiry or communication for the purpose of information was necessary to create the obligation to disclose material facts. “ The fraud, said the counsel, “ consists, in such cases, in dealing with the party in ignorance, and leaving him so. It is not necessary that the other party should have created the false impression or intended it; it is sufficient that he knows it, and takes advantage of it.” In support of this general principle may be cited, Stuart v. Wilkins, 1 Dougl. 18; Cockshot v. Bennet, 2 D. & E. 763; Jackson v. Duchaire, 3 D. & E. 551. In the instruction of the judge to the jury in the case at bar, a part of it was that if La-*191■pish saw lha mistake, but look the deed with intent to defraud Me-Glathry, it would vitiate the deed as to the acre. The question of fraudulent intent was properly submitted to the jury, aud they have found the fraud. Upon authority we cannot perceive any incorrectness in the instruction. Lapish was instrumental in giving it effect; because the deed could have no operation as to any part of the land, until delivery, aud acceptance of it; and he received and accepted the deed, knowing there was a mistake in it, important in its nature,, and that the committee had, through mere inattention, committed the mistake. The laws of morality can never give sanction to such a proceeding ; and it surely cannot be the duty of a court ofjustice to be more indulgent in its judgment, it would be a reproach to our laws aud tribunals which administer them, to permit fraud to accomplish its designs, when those designs are detected and disclosed. In the case before us the jury, who are the exclusive judges of facts, have by their verdict pronounced that the deed in question was fraudulently obtained from the committee. The objection therefore, to the instruction to the jury on the point we have been considering is not sustained.
6. The last objection is to the refusal of the judge to give certain requested instructions. The cases cited in support of it shew that it is the duty of a judge to instruct the jury upon any point which is pertinent to the issue ; though not as to abstract principles which are irrelevant. The inquiry, therefore, is whether the instructions requested, were pertinent to the issue ? The judge was requested to instruct the jury that if the committee perceived the exception of the acre sold to McGlathry, as stated in the deeds from Budge down to Lapish and his associates, but considered McGlathry as not entitled to any land under the resolve, and intentionally excluded him, meaning to convey the whole to Lapish and his co-tenants, it was not a fraud in the latter to receive such a deed. On this part of the cause there has been some vibration of opinion ; but on consideration we are satisfied that the requested instruction had been virtually and essentially though not formally given, and was included in the instructions which we have just been examining. He presented to the consideration of the jury a number of particulars re*192specting the deed, and the conduct of Lapish at the time of its execution and delivery ; and instructed them that if they should find all those particulars true, then the deed was void as to the acre. This amounted to a distinct expression of his opinion that if they should not find them all true, then the deed was not void. The implication is so strong that it could not be misunderstood. The jury had no authority from the court to consider the deed as void, except in one case and under certain specified circumstances. They have found that all those circumstances existed, viz. the committee’s knowledge of McGlathry’s title to the acre; their forgetfulness of the fact when the deed was executed; the knowledge of Lapish of the mistake in the deed; and his silence and acceptance of the deed with intent to defraud McGlathry. All these are totally repugnant to t'he'facts assumed as the basis of the requested instruction, and the verdict proves that if given, it could not have changed the aspect of the cause, or been productive of any legal consequences in relation to either of the parties. It cannot therefore be considered as relevant. The instruction called for, in fact," amounted to no more than this, that if Lapish received just such a deed as the committee intended to give, in the honest execution of their supposed powers, it was no fraud in him. This seems to bear a strong resemblance to an abstract proposition, and even to a self-evident one. We think the judge was justified in declining to give the instruction, for the reasons we have mentioned.
Knowing, as we have reason to know, that this cause, and others on the docket, growing out of the same transactions, are important in a pecuniary point of view, and interesting to the feelings of all the parties connected; we have been disposed to assign the reasons of our opinion more at large than usual. And though from the evidence disclosed by the report, we cannot readily perceive the advantages of another trial, or any peculiar equity in the claim of the demandant; still we should promptly have set aside the verdict and submitted the cause to another jury, had legal principles demanded it. But those principles render such a course improper.
Judgment on the verdict.