And now, at this term, the following decree was pronounced:
By the Court.It does not appear that either the first or the second error assigned is contained in the opinion of the court, but it seems evident, from the opinion, that the decree is founded on the deceptions under which the complainants and their agent, Merewéthcr, acted in the case, and which were occasioned by the certificate which the defendant obtained from the commissioners,’ and the conduct of the defendant and his agent, Sullivan, and therefore that, instead of the complainants being bound by süch acts, equity required that the defendant, Whitaker, should be compelled to relinquish to them all the advantages which he had acquired thereby. In this point of view the court is still of opinion that the decree is well founded.
On the second error assigned, the court is of opinion that the agreement entered into by Merewether, under the deceptions stated in the said opinion, and in the facts on which it is founded, did not bind the complainants to change their entry, and even if the agreement had been bona fide, that it would only have bound the complainants to survey agreeably to the dividing .line therein specified.
As to the fourth and last error assigned, the court is of opinion that, from the nature of the case, it can not be supposed that the decree has made any exchange of land between the parties. It appears to have been the principal object of the court to restore *155to the complainants the land of which they had been defrauded, and this, the court are still of opinion, ought to be done, even if by a prior decree the complainants had lost the whole of the land included in their survey, which was not included in their entry. But this not having 'happened, and it not being certain that it would ever happen, it was improper that they should continue to hold the land, and also to recover the land to which they were more justly entitled. Therefore, on their offer and consent, in court made and given, to relinquish such lands before the decree was made in their favor, the court were of opinion, and still continue to be of opinion, that it was just and equitable that the defendant should have the right of the complainants to so much thereof as by the decree was taken from the quantity he had surveyed and paid the state for, and that the decree in favor of the complainants should have been made on this condition.
On the whole, the court is of opinien that the interlocutory and final decrees in this cause made and pronounced ought to stand unaltered and confirmed, save only that it is now further decreed and ordered, that the complainants shall, on or before the 1st day of October next, execute a deed to the defendant, Whitaker, as in the said final decree is directed, and likewise that the said defendant shall, on or before the said 1st day of October next, execute a deed to the complainants, as in the said last mentioned decree is also directed. Costs, etc.