By the Court
Lyon, J.,delivering the opinion.
1st. The Court charged the jury, “ that if the plaintiff had procured the grant to be issued by false and fraudulent representation to the General Assembly and the Governor, he was not entitled to recover of' a party who had no notice of the proceedings.” Was this charge right ? We think, under the evidence, it was not. Whether the grant was procured by false or fraudulent representation was a question, as the case stood on trial, in which the State also was interested, and as the State had acquiesced in the grant, and made no *528effort to recall it, it is to be presumed that she has waived or ratified the grant, notwithstanding it may have been obtained by false and fraudulent representations. It does not lie in the mouth of the defendant to call in question the grant on that or any other ground, unless he first makes it appear that the grant affected him or his interest in the land.
On the trial the defendant did not show that he had any interest or claim to the land that was prejudiced by this grant. It was true that he, or those under whom he held, was in possession of the land, but that is not such interest or claim to the land as can affect the right of the State to issue its grant to the land, for possession is never adverse to the State, and cannot, no matter how long continued, or in what good faith made, ripen into a title, or prejudice the right of the State to issue its grant therefor when and as it pleases. And in this sense the defendant was not entitled to a notice of the proceeding. To have been entitled to a notice of the proceeding, it was necessary for him to have shown that he held under a title from or under the former grant before it was declared to be fraudulent.
The Court further charged, that if there never had been any judgment of forfeiture of the land, and no mutilations of the records of the Court, and if this grant was procured to be issued by false and fraudulent representations that there had been such a judgment, and a mutilation of that judgment, then the grant was void as to the third persons, who had no notice of the proceedings before the Governor and Legislature.
The charge amounts to this, that if there was no judgment of forfeiture of the land'as against the original drawer of the lot, Attaway, then this new grant to Williamson was void.
The charge misconceives the sense, purport and letter of the act of 9th June, 1825, Dawson’s Compilation, 256, under which the proceedings against the fraudulent grants were had. That act declares that all returns (of chances in that lottery) made contrary to the true intent and meaning of this act to be fraudulent, and all grants issued in consequence of any draw made in the contemplated lottery on such fraudulent *529returns, are hereby declared to be null and void, and the lands so granted or drawn shall revert and become the property of the State. The question of fraud to be tried upon seire facias, etc., wpon an issue to be made up under the direction of the Court to try the question of fraud, and in case the jury shall find the return fraudulent, the Court shall, by judgment, pronounce the grant, issued on such return and draw, to be void, and order it cancelled, which judgment, when transmitted to the Surveyor General’s office, and Secretary of State’s office, and entered on file, shall be of sufficient authority to those officers to cancel the plats and grants for such fraudulent draws in their offices respectively.
From the terms of this act, it is manifest that if the return was fraudulent, the grant that issued for the draw, or lot drawn on such fraudulent return, is also totally null and void, not voidable, but void, a mere nullity. Whether the return was fraudulent, was to be ascertained, not by the judgment of the Court, but by the verdict of a jury, on an issue to be made up and tried under the direction of the Court. That issue was made up and tried in this case, and a verdict of the jury rendered, that the return was fraudulent, and in that case the law declares the grant to be null and void. It is true that the statute directs that the Court shall, by judgment, pronounce the grant to be void, and order it to be cancelled, etc. Rut these are the mere formal directions and instructions of the law to its agents as to what they shall do, and in which the grantee, or those holding under him, have no interest, that may be dispensed with or entirely omitted, without affecting the rights of the grantee.
The great fact which settles the rights of the grantee, and on which the law acts, has been ascertained in the manner pointed out by the act; that is, that the return was fraudulent, and the grant, therefore, void.
Whether the Court pronounced the judgment required by law, or the Surveyor-General and Secretary of State performed the duties required by them or not, the fact still remains as ascertained by the jury, that the return was fraudulent, the grant void, and the title to the land still in *530the State, with a consequent right to regrant the same at such times as it pleased.
Let the judgment be reversed.