The error assigned in the action which the petitioner asks tohave rehe.ird as to the refusal of the Court to instruct the jury that the plaintiff had granted to the defendant by parol license the right-of-way, in the view the Court took of the case, became immaterial, and it was not necessary to decide the question raised in that respect. The Court had jurisdiction for the purpose of deciding the question, and incidental questions as to the validity of the deed in question; it did not have jurisdiction as to the matter of damages. .
It is not alleged that error was assigned in the ease settled on appeal, in that the Court refused or neglected to instruct the jury that the plaintiff ratified and waived objection to the deed by accepting one hundred dollars from the defendant, as the jury found he did do, in response to the seventh issue submitted to them. The Court was not asked to give any instruction in that respect, nor did it do so, so far as appears.
But the learned counsel of the petitioner contends that it was the duty of this Court, without any assignment of error, to look through the record and render such judgment as ought, in law, to be given; and inasmuch as it appeared by the record that the defendant did, “after adopting the line upon which the road was constructed across the plaintiff’s land, pay the plaintiff one hundred dollars, and thereby induce plaintiff to let the water out of his mill pond for thirty days, in order that the said pond might be crossed, as it was, by a trestle instead of building cribs in the water,” it ought to have held that such payment, notwithstanding the fraud of the defendant in procuring the deed, was a ratification thereof and a waiver of all objection to it, and given judgment accordingly for the defendant. This contention is founded upon a misapprehension of what the record con*520tains, and a failure to notice material matters not embraced by it.
The plaintiff alleged in his complaint that the deed was obtained from him by the fraud of the defendant and its agents. The defendant in its answer simply broadly denied the allegation of fraud' — -it was not alleged, in terms or by implication therein, that the plaintiff had in any 'way ratified the deed or waived his right to have it declared void for fraud, nor was any. such defence in any way set up on the trial, or at any time in the Court below, so far as appears. It alleged in its answer, as a separate defence, “that upon the location and construction of the present line of said road across the plaintiff’s lands, the plaintiff demanded and received from the defendant the sum of one hundred dollars for the license and privilege of constructing said road on the line as located. And the defendant pleads the same as a defence to this action.” The seventh issue recited above was raised by this allegation and the denial thereof. The response to it was entered by consent, for the purpose of raising the question as to the grant of a license to locate the road on the line on which it was constructed. The fact so found is an isolated one, and the finding is, that the money was paid for the purpose specified' therein. It may be that such payment of the money was not intended or understood by either party to be a ratification of the deed, or a waiver of objection to it; indeed, the circumstances and’the fair implications from the record strongly suggest the contrary. It may be that the plaintiff, seeing that the defendant had located and was constructing its road, as he and it believed it had the right to do by virtue of its charter, and without reference to the deed, accepted the money for, and only for, that consideration and purpose specified in the finding of the jury. If so, surely it could not reasonably or justly be contended, much less held by the Court, to be a waiver of objection to the fraudulent deed, or the right of the plaintiff to damages. Courts of *521equity, when, in possible cases Courts of law cannot, will uphold fair dealings between parties, and enforce equitable .rights growing out of them; but they will not, in such cases, prevent a part}1- from asserting his just rights.
It was not alleged or contended in the pleadings in the Court below that the plaintiff ratified, or intended to ratify, the fraudulent deed complained of. The acceptance of the money specified for the purpose and under the circumstances specified in the finding of the jury, did not, of itself, necessarily imply a ratification of that deed by the plaintiff, nor does it appear that the plaintiff or the defendant intended that it should be treated as a ratification of it. The judgment complained of was not inconsistent with so much of the record as preceded it, and it was such as the law allowed and required upon such record. This Court was, therefore, warranted in saying that no exception was made in the respect mentioned, and in declaring that there was no error in so much of the judgment as had reference to the deed. The petition must, hence, be dismissed.