Avery v. Walker, 8 N.C. 140, 1 Hawks 140 (1820)

June 1820 · Supreme Court of North Carolina

8 N.C. 140, 1 Hawks 140

Avery v. Walker.

From Buncombe.

IN EQUITY.

W. A. made an entry of land, paid the fees and the purchase money, and g'ot a warrant of survey, and applied several times to the county surveyor to make the survey, but he declined doing it, and made IV. A. a deputy for that purpose, just before the entry would lapse. W. A. proceeded to make the survey, as deputy, returned it into the office, and obtained a £rant: F. W. had entered the same land with notice of W. A’s entry, and, being also a deputy surveyor, fraudulently made out a plat of survey from W. A’s field book, which he returned into the office, and obtained a grant prior to that of W. A.

W. A. filed a bill for relief and a conveyance of the legal title from F. W. He did not state that either he or the chain-carrier had been sworn.

field, that W. A. was not entitled to relief and his bill dismissed — because the survey had been made by himself, and not on oath.

Quere — Whether the extinguishment of the Indian title, by the treaty of Holston, made in July, 1791, with the Cherokee Indians, rendered the lands ceded by that treaty subject to entry in this State, without a further and express Legislative act ?

This case was transferred under the act of Assembly of 1818, to this Court for a final hearing.

The bill stated, that the complainant on 22d day of April, 1795, made and paid for an entry of land in the following words: “No. 3626: W. Avery enters a claim “ for 400 acres of land lying in Buncombe county on both “ sides of a large creek or river that falls into Tuckasejah river on the north-east side, at the Twelve Mile Town: “ the said creek called Big Creek by some — by whate- “ ver name or names the said town or creek may be call- “ by others : Beginning immediately above where the “ Indian line, by the treaty of Holston, máde in the year “ 1791, crosses the said creek, or on that part of the “ said creek nearest to the Indian line, and extending “ upon both sides of the said creek for complement That he then also made seven other entries, which are particularly set forth in the .bill, each for 400 acres, and each calling to lie, above the last in order, on the same creek called, by him, Big Creek, and extending up the creek on both sides of it for complement: That on the entry book, at the foot of his said entries, were written the following remarks, viz. “ 1. JVbto Bene: It is sup- “ posed that the Indian line does not cross any other “ water course as large as Big Creek between Big Creek “and the territorial line:” “ 2. Nota Bene: No other “ water courses falling into Tuckasejah or Tennessee as “far west and as large as Big Creek, lie in that part of “ North-Carolina wherein the Indian claims were ex- “ tinguished by the treaty of Holston in 1791 That in May, 1796, he paid into the Public Treasury the purchase money to the State, and took a receipt therefor : That at the time he made the entries, the country was wild and infested with Indians, and that he had never seen the lands or been near them : That he obtained the locations from Col. James Hubbard, and Capt. John Mil, who had been members of Col. George Dohortifs party, and explored that section of country shortly before, and had been attacked by the Indians on that creek and at or near the place where his first entry was laid : That he made repeated applications to John Patton, surveyor for Buncombe county, to survey the lands after obtaining the warrants ,* and that Patton declined doing it, as the lands were on the frontier and the Indian boundary had not then been actually run out, and it might be dangerous to survey near the line : That Patton offered to make a deputy to survey the lands ; that none could be obtained except the complainant himself; and that in consequence thereof, he accepted a deputation in 1798 : That in November, 1798, he sat out from Burke (where he resided,) to make the survey ; but he then again applied to Patton, and requested him to make the survey, and he again refused : That the period was near at hand when the entries would lapse or become forfeited to the State if the surveys were not made, and he was under the necessity, therefore, of doing it in person: That he procured one Sever as a pilot aud chain-carrier, who had been a huntsman, and was well acquainted WOods and water courses in that part of the country, and could identify the creek mentioned in the complainant’s entry : That when they reached the wilderness they met with the defendant Felix Walker, who informed complainant that he had several entries on a creek called S'oko, which he had come out to survey under a deputation from Fallon to himself, and proposed that complainant should survey his, the defendant’s entries, and the defendant in turn would survey as many for the complainant; to which, both parties agreed : That Dover took them to Soho Creek, being the main south fork of Big Creek; and that on the 14th November, 1798, complainant made several surveys for the defendant, running down the creek to a point within one mile and a half of its mouth, and that he then shewed to Dover and the defendant, Walker, exact copies of his entries, and stated that the Big Creek called for in them and designated to him by Hubbard and Hill, was the creek on the hanks of which Dohorty had been attacked by the Indians: That Dover declared that Soho emptied itself into that creek, and that Dohorty’’s battle ground was, in fact, at the mouth of Soko: That above the mouth of Soho, the Indians called the creek Raven’s Fork; that below the confluence they called it Uunia and Nonahut; but Dohorty and his men, and other whites, called it Big Creek: That complainant also shewed to the defendant a copy of the Nota Benes, and the original receipts of the entry taker and treasurer for the fees and purchase money, .and stated to him that he had never been upon or seen the lands, and depended upon Dover to shew them: That Dever repeated his declarations several times in the presence and hearing of Walker, and asserted that they were then near the land entered by complainant : That Walker, deceitfully, and for the purpose of defrauding complainant of his land by inducing him to survey it and certify for him instead of the Complainant himself, denied the correctness of - Dover’s opinion, and said that the large creek into which the Soko fell was not Big creek, called for in Complainant’s entries and warrants ; that the true name of that creek was Oco-nalnfty, and it was excluded by the Jfota Bene annexed to the entry ; for there was another creek lower down, which was much larger, and fell into the Tuckasejah on the north-east side, fifteen miles below, near the Big Bear’s village, and was called Deep creek; that he had lately been there and seen it, and there were much larger bodies of good land on it than on the creek where they then were : that there was no town or Indian old fields at the mouth of this Big creek, or Oconalwfty, as he called it, but there were at the mouth of the other creek: that he moreover declared, that he had lately seen and conversed with Hubbard and Hill, and others of Dohorty’s men, who had removed to Tennessee, and at a great distance from Complainant, and that they had all stated that Complainant’s land was situate fifteen miles below, and on the other crock : and that he was willing to make oath to the truth of all these statements and facts •, that he, the Defendant, had entered the lands on Soko and the creek into which it emptied, and which was named Oco-nalufty: That Deroer asserted the truth of his own declarations, and that Complainant, being uncertain which to credit, proceeded in the surveys, with the determination of making plats and certificates of survey, according to his convictions resulting from subsequent investigation : That, in fact, all the representations of the Defendant were false, and were so known to himself at the time he made them ; that there wras no other large creek emptying into the Tuckasejah on the north-east side, below this Big creek $ that Big creek corresponded with the call for the Twelve-Mile Town ; that the attack on Dohorty was made at the mouth of Soko ; that the true name was not Oconalufty, and that such name had been -given to it by the Defendant himself, when he made his entries, for the purpose of defeating Complainant’s entries $ that Defendant had notice of Complainant’s en-.j.rieg¡i an(j au |^8 declarations aforesaid were made with the view of entrapping him, by getting him to survey his own lands for the Defendant; that a water course fifteen miles below would not fall into the Tuckasejah at all, but would fall into the Tennessee river. The bill further states, that Complainant ascertained these facts during1 the surveys by his own observation, aided by the knowledge of Bever; and that he thereupon distinctly informed Walker that he would make plats and certificates for him for the lands on Soko, and for himself for those on Big creek, below the mouth of Soko, and on the Raven’s-fork, above the mouth of Soko: that much altercation took place between them, and that Walker, still insisting for the surveys to be made for him, remained with Complainant during the surveys, and thus had an opportunity of taking notes of the surveys himself, or of copying them from Complainant’s field-book : That after the surveys were completed, they separated — Complainant returned to Burke, and Walker to his residence in Rutherford county : That in a few days, the Defendant sent a messenger to the Complainant, with a letter requesting him to make out the plats and certificates of survey for all the lands, in the name of the Defendant; or, if he would not do that, he requested him that, after he had made them out as he might think proper, he would take Defendant’s house in his way to Raleigh, that they might accompany each other to the public offices, to contest' the right to the grants : That the said letter was a mere device to deceive Complainant; and that Defendant instructed his messenger to detain Complainant at home as long as he could, in making hut the plats and certificates, or by any other pretence, until he, the Defendant, could make out.plats and certificates in his own name for the lands, and, without any notice to Complainant, forward them to the Secretary’s office and obtain the first grants: That, in fact, the Complainant made plats and certificates in Walker’s name for all the lands on Soko, which he sent to him by his messenger, and proceeded to make out plats and certificates in the name of himself, the Complainant, for the lands on Big creek, including the mouth of Soko: That i» a short time, ho completed his plats and certificates, and filed them in the office of the Secretary of State, and obtained grants for the respective tracts, bearing date the 24th day of December, 1798 : The bill further states, that the Defendant, Walker, in pursuance of his original scheme of circumventing and defrauding the Complainant, had, in the mean time, and while he and his messenger were amusing him at his own house with invitations to travel together to Raleigh, and employing him in making out the papers for the Soko lands for Walker, and soliciting him to make out those for the Big creek lands in the same way, been busily engaged himself in making out plats and certificates for the latter lands in his own name; that, in truth, he did so make them out, and, before Complainant had completed his, and without any knowledge or suspicion of it on his part, the Defendant posted off one James Holland, an attorney, to Raleigh, to procure the grants, and did obtain grants, bearing date the 5th day of December, 1798, for 3832 acres of land in his own name, and for 640 acres in the name of Holland, as a compensation for liis trouble, or as his share of the profits. The bill further states, that the entries of Walker were made on the 9th day of May, 1795, and that he then had full notice of Complainant’s previous entries, as well as at the time of making the suryey, and that he, the Defendant, had not paid the purchase money to the State before he ap-. plied for his grants.

The prayer was, that the grants to Walker might he declared void; or that he should convey to Complainant the lands in dispute, and surrender his grants into Court ;• and for an account of rents, profits and waste,

The answer was much in detail, and denied many of allegations of fraud stated in the bill. The reliance, however, was chiefly on the position, that Big creek and Oconalvfiy were two different and distinct branches of the Tuckasejah river, and that the information given by the Defendant to Avery upon that point, was correct in point of fact: It also insisted, that the surveys had been actually made by Complainant for the Defendant, and that he had no suspicion that Complainant designed to appropriate the land to himself until the surveys had been completed : When Avery informed him of his intention, he was much astonished, and, having no other means of defeating Avery’s fraudulent purpose, he determined to exercise the functions of his office of deputy-surveyor, for himself, and thereby secure this land from the unjust spoliation meditated by the Complainant: He admits, that he hurried home, and immediately on his arrival, proceeded to prepare plats and certificates for himself, for the lands on the Oconalnfiy, with which he despatched Holland to Raleigh, in order to have the titles quickly perfected by grants; which was accordingly done, as stated in the bill: He also admits that he sent the messenger to Avery for the plats and certificates, and says, “ that with honest truth he declares that he had a design <e to procrastinate and prevent the Complainant from ob-ie taining grants first, and that he also had it in view to “ obtain the titles for himself, as he believed the lands to “ be justly his By engaging the Defendant in platting the Soho lands, he hoped to detain him, and thereby gain time for himself: He also wished to put an end to all controversy and law-suits upon the subject, which he hoped to do by getting the first grants, as he expected that Complainant would then abandon his claim : “ Ac- “ tuated by these pure motives, he had in view only to f( prevent the Complainant from committing a fraud on ÉC him, and not himself to perpetrate one : He therefore “ determined to obtain, by any fair means, the first grantsHolland had then gone to Raleigh, and he wished to detain Complainant until the business could be completed. The Defendant insists that he acted bona fide throughout; and denies that he had notice of Complainant’s entries on Oconalufty, but says that he conceived then and now asserts that they were on another creek.

The proofs and exhibits were voluminous : but as the case was decided upon a motion to dismiss the bill upon the matter stated in it, the Report is not burdened with the other matters.

The lands entered by both parties are stated in the bill to be within the Territory ceded by the Cherokee tribe of Indians to the United States by the treaty made the 2d day of July, 1791, commonly called the treaty of Holston or Blount’s treaty.

Upon the hearing, Mordecai and Seaxvell for the Defendant, moved to dismiss the bill upon two grounds : First, because the land was not subject to entry: Secondly, because the Complainant surveyed his own entries.

The act of 1778, c. 3, ascertains the Indian Boundary, and declares “that all entries or surveys heretofoi’e “ made, or which hereafter may be made within the said “ Indian Boundaries, shall be utterly void, and of no “ force or effect.” By the act of 1783, c. 2, certain lands are reserved to the Indians, and entries within the reservation declared void, and a penalty of £50 imposed for each entry, on the person making it.

These lands were once, therefore, not the subjects of entry — the Statutes forbade it. They have not yet lost their efficacy. There is no time limited in them during which they should operate, and afterwards expire j they do not provide that “ so long as the Indian title shall “ exist, no entries shall be made.” If the Courts say that, they impose a limitation to the law, where the Le* gislaturc have placed none, these acts have not been expressly repealed; nor are they repealed by implication — by subsequent laws inconsistent with them. The cx--tjnguisiimpnt of the Indian title by the Treaty of JUols-ton, did not affect the operation of these prohibitions. That treaty did not repeal our laws : it was not made by North-Carolina, but by another government — that of the United States. Besides, these acts do not forbid entries within the Indian Boundary* merely as Indian Boundary. There are defined territorial limits, and all entries within them are prohibited: and, although those limits then constituted Indian Boundary, it does not follow that when their title should cease, the prohibition would also cease; the State might not wish to sell that laud, and there has been no declaration of the legislative will to that effect The repeal of these Statutes being to exercise the highest act of Sovereignty, by disposing of the territory of the State, nothing short of the express words of the Legislature is sufficient therefor. It is natural to expect that a change of so much importance, should he plainly and expressly declared. This question seems to have been settled in the case of Avery v. Strother.^* It is true, that the entry there, was made between the signing and the ratification of the treaty : hut the Court does not lay any stress on that circumstance, nor intimate that the judgment would have been different had the entry been made after the ratification. That case has been recog-nised as law by the Supreme Court of the United States, and made the foundation of their opinion in Bavforth’s Lessee v. Thomas; ^† in which it is declared, that the mere extinguishment of the Indian title did not subject the land to appropriation, until an act of the Legislature should authorise it.

But this land was not the subject of entry for another reason. The right of entry is given and regulated by the act of 1777, c. 1, s. 3 : a mere perusal of which, will shew, that the land in question could not be en-teved. The words are, “ that it shall be lawful for any “ citizen to enter with the Entry-taker of any County “ in this State, a claim for any lands lying in such “ County, which have not been granted bij the Crown of “ Great-Britain, or the Lords Proprietors of Carolina, or *• any of them, in fee-simple, before the 4th day of July, “ ITT6, or which have accrued, or shall accrue to the State “ by treaty or conquest.” Tliese words “ which have ac- “ crued or shall accrue by treaty or conquest” are words of exception, and not words of grant: such is the natural construction of the sentence, and any other would produce an absurdity. The first part of the section authorises an. entry of any lands in any County in the State. These are general words, and embrace all the lands in the State$ the expressions, therefore, relative to ceded or conquered territory, cannot be construed words of grant ,• for there is nothing for them to operate on. They could not apply to lands without the State : such a case was not at all contemplated. Indeed, it is expressly provided, that the entry shall be made with the Entry-taker of the County, of all lands within that County. The treaty of the Long Island of Holston, was made on the 20th of July, 1777, by which certain lands were secured to the Indians; and it neither comported with the policy of the country, as declared in the preamble of the act, nor with the provisions of the treaty, to subject those lands to entry. That trpaty was fresh in the minds of the Legislature, and probably, suggested the exception. It is true, that speculators spied out an apparent ambiguity in the expressions, and some of them immediately made entries. But very soon afterwards, we find a legislative construction upon the clause in question, corresponding with that now contended for. By the act of 1778, c. 3, entries within the Indian boundary, are prohibited thereafter, and all entries and surveys of land within those boundaries made before that time, are declared void, and the purchase money refunded. Whatever conflict of authority there may be upon the construction of the acts of’78 and ’83, there is none upon the point arising out of the act of ’77. That is now presented, for the first time, in this State, and the Court can give an exposition of the Statute, untrammelled by any precedent whatever.

Upon the second point, they urged it as a general principle, that a confidential a gent shall not act for himself, in relation to the matter entrusted to him by his principal.^* A Sheriff cannot purchase at his own sale;^† nor can an Executor.^‡ These cases do not go on the ground of a supposed incongruity of the same person being buyer and seller. The reason of them is, that as buyer, he has a personal interest to purchase as low as possible; and as seller, he is acting for another person who has an interest directly opposite. His purchase is set aside, because it is against policy; because, if supported, frauds might he committed by Trustees, not because he, as Trustee, has actually committed fraud. It makes no difference whether the transaction be honest or not :^§ This reasoning applies in this case. It was the interest of the State that an exact admeasurement should be made. The Surveyor is entrusted, on the part of the State to make it: but it is his interest, when surveying for himself, to include as much land as possible. If such a purchase be good at Law in any case, yet Equity will interfere and give the benefit to the cestui que trust. But such transactions will be avoided at Law as well as in Equity, if the Court of Law can get at the facts.^|| And when the purchase is made of a third person, and it cannot take effect for the benefit of cestui que trust, it is absolutely void in Equity; for the Trustee shall never take benefit from it-^¶ This principle has been extended to public officers. A Latitat directed to the Sheriff, in his own case, was held ill.^* That must be upon the ground of interest. There is no difference between a Sheriff and Surveyor. The Surveyor, by accepting the office, relinquishes the right of making surveys for himself; because it is inconsistent with his office. Nothing short of express words in the Statute, should give a power' so manifestly against the general policy of the country, and the general principle of right. If nothing be said in the act of Assembly, the general principle operates and excludes him : but the act does negative the implication of such a power. The 5th section speaks of the party entering, and the Surveyor, as distinct persons ; the 12th section gives fees; and the 13th and 14th sections require a bond from the Surveyor, and prescribe an oath, and authorise the; party injured to put the bond in suit. The Legislature endeavors to secure impartiality, by compelling the Surveyor to a>ct without partiality. Can it be held then, that he shallpe allowed to act for himself? General words in a Statute, which if construed generally, will produce absurdity, injustice or inconve-jnience, will be corrected by Equity.^†

Gfaston and Wilson, for the Complainant.-

The act of ’77 opened the whole State for entries. The policy of the State was, to have all the vacant, lands appropriated, and that act was intended to provide for it in the full extent. The broad terms of it embraced even the lands that had been expressly reserved to the Cherokees, by the treaty of July, 1777. That was soon perceived, and the act of the subsequent year, St. 1778, c. 3, was passed, to remedy that error, and fulfil the. treaty. The Land-Office was shut by the act of 1781 ; but was again opened for the whole State by that of 1783, c. 2, reserving the Indian lands, as defined by the treaty. It is obvious, that the object was to reserve these lands, as Indian lands, from entry ; because all the lands to the East were then within the white settlements and subject to entry, and by the third section of the act, the Western boundary for entries is enlarged to the Missis-gjppj. The general construction then was, that those lands could be entered, unless expressly prohibited. Hence the necessity for the passage of the act of 1778 j and hence too, the necessity for the restrictive clauses in sec. 4, 5, 6, 7, and 8, of the acts of 1783. The cases of .Preston v. Browder ^* and of Danforth v. Thomas, ^† do not oppose this position. The entries in both of those cases were made at a time, when they were expressly forbidden. The same remark is applicable to the case of Avery v. Strother; because the treaty did not become consummated, and was, indeed, no treaty until it was ratified. The circumstance of the restrictive clauses being-introduced into the act of 1783, shews very clearly, that without them it was considered that the Indian lands would be subject to entry even while occupied by the Indians. To prevent that, and that alone, was the intention of the Legislature, so far as regarded the Cherokees. It had always been practised in this State, to make entries of any lands to which the Indian title had been extinguished; and also to enter lands, even on which the Indians were actually seated. This custom, had the sanction of legal provisions, as is proved by the act of 1748, respecting the Tuscarora Tribe; whereby entries of their lands were forbidden in future, but the. previous grants declared valid, and the grantees authorized to enter, whenever the Indians should desert the lands. This is iucontestibly confirmed by the act of 1809, c. 16, which is a legislative exposition of the.former laws, and declares that the Cherokee lands could bo appropriated by entries of individuals, “ so soon as their “ title should be extinguished by treaty,” though it was then unlawful to make such entries; and, to arrest the speculation then on foot, to enter all the valuable lands as soon as a treaty should be made, it is enacted, “ that <£ those lands shall not be subject to be entered; but, “ when the Indian title shall be extinct, they shall remain te and enure to the sole use of the State.”

The construction attempted to be imposed upon the act of 1777, respecting the lands that might accrue by treaty or conquest, is not correct. It is contradicted by the case of Preston v. Browder; in which those words are distinctly considered as words of grant of all the lands within the territorial limits of the State, then held by Indians, and which might be subsequently obtained from them by cession or conquest: and the ground of decision in that case was, that the entry had been made before any such treaty or conquest, and while they remained Indian lands. But even if those words in the act oí’77 operate by way of exception, and not of grant, they will not affect this entry : because the act of 1783 again opens the whole State for entry, without using any such words, and restrains entries only within the Indian lands, a? such. The same act of 1809, also supports this construction.

The facts as regards the other point made in the case are, that the Complainant made his entiles, paid the fees and the purchase money, obtained warrants of survey directed to the county surveyor, to whom he frequently applied to execute them, and who declined, and gave Complainant a deputation ; that Complainant waited for the surveyor to make the surveys, until a forfeiture was close at hand, for the want of surveys ,• that he again applied, was again refused, and, to prevent a lapse of his entry, finally made the surveys for himself — his surveys have been certified into the proper offices and there accepted, and grants thereon issued to him. The Defendant, with a full knowledge of his first purchase, and of all the attendant circumstances, has, by spoliation and deceitful practices, contrived to get the first grants.

The motion to dismiss upon this ground, can only be supported, because, by Laxo, a survey made under any circumstances by a surveyor for himself, however fail*, although accepted at the public offices, and approved as the foundation of a grant, is utterly nugatory. It is the |jus£ness 0f Courts to expound, not to give Law. What says the written Law ? The act of 1777, c. 1, s. S, tells us that any citizen may enter ¿ of course it is lawful for a surveyor to enter. There is to be but one surveyor in each county — sec. 2 — and no provision is made for a deputy. By sec. 14, the surveyor takes an oath and gives bond for the faithful discharge of his duty. The only mode of ripening the entry into a grant, is upon a survey made by him — sec. 10. By sec. 15, he incurs a penalty of 500Í. and a forfeiture of office, by any misconduct: And the act in sec. 18, makes a special provision for the entry-taker making entries for himself before a justice of the peace, and prohibits his entering in any Other mode; But there is no clause prohibiting entries or surveys being made by the surveyor — there is not an expression or intimation in exclusion of this officer: but a.s far as general words and necessary implication can go, he is permitted to survey for himself. The attention of the Legislature was evidently drawn to the subject' — they have made the distinction between the entry-taker and the surveyor, and, it is decent to presume, upon good reasons ; but if there be a defect, it is not our duty, nor in our power to remedy it. The act of 1779, c. 6, autho-rised the surveyor to appoint a deputy, who should be qualified as his principal, and for whose conduct the principal should be responsible. A deputy may do any act which it is lawful for his principal to do.^* The acts of Assembly do not therefore present any such prohibition.

. But it is said to be a principle of the Common Law, that in all offices of trust, the act of the officer is null where he has a personal interest. Should this even be true at the Common Law, and as to Common Law officers, it does not follow that the Legislature may not depart from it as to an office created by statute. The expediency is with them. The express provision made respecting the entry-taker* and the omission as it respects the surveyor, was an adoption of this supposed principle in part, and a rejection of it in part. But there is, in fact, no such principle of the Common Law. If there be, important, extensive, and highly active' as it would be, we should find it frequently stated in judicial, decisions, or in authoritative treatises of the Law. But nothing like it is found. “ No man shall be a Judge in “ his own cause.”^* This position is admitted. In its terms it applies to judicial decisions. It is of the essence of the administration of justice — of the exposition of Law — that the arbiter be neuter. The restriction of the principle to judicial functions, is a negative as to all others.

Offices are judicial, or ministerial; There are many important distinctions between them. The former cannot be exercised by deputy, is not grantable in reversion. The latter may be.^†

The case of a Sheriff has been relied on by the other side, upon the authority of Comyn’s Digest, in which it is said that a Sheriff cannot execute process in which he is concerned. The office of Sheriff is of great antiquity, and is regulated by many rules of which the origin is now unknown, and applicable to it in particular. But the principle thus broadly laid down, must be restrained by the case ptit, in illustration of it. The case is that of an Extent, and the only authority is Moor. Upon an Extent, the Sheriff acts judicially.^‡ So likewise does he on all inquisitions.^§ The Slier iff executes all writs directed to him ; but where it is alleged that he is of kin, a party, or partial, they are then directed to the Coro-. ner.^* The case of Weston v. Coleson,^† cited on the other side, proves that the direction of a writ to the Sheriff in his own cause, is irregular, and it will beset aside with-0|^ C()g|.g> p>u^ ¡;iie act js not nu]j • it is only irregular. The rule that a Sheriff shall not buy at his own sale, is founded on a different principle than that stated. There must be two parties to every contract of sale and purchase. Parties are essential, and therefore a man cannot sell to himself. The cases referred to by Sugden, establish only a principle in Equity, that a trustee, purchasing at a sale of his cestui que tnist’s property, buys liable to his equity, if he come in due time to set it aside. The true doctrine is stated in 5 Ves. 580. If it be objected, that public policy requires such a principle : the answer is, that the judges of policy, and not the Judges of Law, must decide on the force of that assertion. Both tribunals have determined against the existence of such a general principle; and Clerks issue writs in their own causes, and record the verdicts and judgments, and keep the records: a Register records and certifies his own deeds: the Secretary of State and the Governor issue grants to themselves : the Speakers of the General Assembly certify their own pay. The case of McKinaie v. Crow,^‡ decides the survey to be good, if previously au-thorised by the principal surveyor, or subsequently ratified by him. Both have been done here; and, indeed, the act of the deputy is that of the principal in every case.

But if the objection be good, this Defi?ndant cannot make it. Both parties have grants for the same land : His, by means of fraud, are of an elder date. The Complainant’s prayer is to be put into the same state in which he would have been but for the Defendant’s fraud.

Every kind of artifice by which another is deceived, is a fraud, and Equity has an universal jurisdiction of them,. except as to frauds in obtaining wills.^* A verdict, decree, probate, allotment of dower, and fine, obtained by fraud will be set aside.^† We were entitled to suspend Lis grant by caveat, and prevent its issuing — bis fraud prevented the exercise of the right, and we now ask to have it on proving the fraud. His fraud has converted the Defendant into a trustee for us, and we have a right to consider his legal title obtained for our benefit. The entry and payment of the purchase money, gave Complainant an equitable title, and he was entitled to have it perfected into a legal title by grant. The Defendant has improperly obtained that himself, with notice of our right, and, therefore, in trust for us. He cannot object that we have not surveyed. If we were asking a grant from the State, she might perhaps deny it on that ground. But the State is satisfied : the survey was fairly made, and she has given us a grant. We are not, therefore, seeking a grant from the State, but- the benefit of one which the Defendant, as our trustee, has obtained. The Defendant cannot cavil against the title of his cestui que trust. Nor the perpetrator of fraud be allowed to clothe himself with the defensive rights of the State, whose title he has improperly assumed. Fraud will never be encouraged in that way.^‡ At all events, the Court will decree a cancellation of the Defendant’s grants, and leave the validity or invalidity of the Complainant’s grant to be determined between him and the State.

In Reply.

The rule with regard to Sheriffs is founded on their interest, and extends as well to their ministerial as their judicial functions. It would seem, that an interested person should not act in either capacity. In the case in Wm. Bl. Rep. the Sheriff did not act judicially. His judicial authority consists in holding the County Courts; his ministerial office in executing all ivrits anil process, ^* and embraces an Extent. In inquisitions, be does not act judicially; for a deputy may preside in en-quiries upon default, and the judicial officer cannot be deputed.

If, from necessity, the surveyor may survey for himself, the privilege should not be extended farther than the actual necessity requires. It could not be necessary that the Complainant should survey for himself. He might have compelled the surveyor to do it for him, or had his remedy upon refusal; or he might have obtained another deputy.

Again : If a deputy may survey for himself, he should shew that both he and the chain-carriers have been duly qualified by taking the oaths prescribed. They are facts within the Complainants own knowledge, and are necessary parts of his case, and ought to be stated in the bill 3 although third persons need not state them, because the acts of an officer, defacto, are valid as to them.

It is said, that the proceedings have been ratified by the proper officers, and therefore are good, upon the authority o'f 2 Bin. Rep. 105. That case docs not decide that such ratification validates the survey j it only says, that it is clearly bad without it. And the Judges there complain of the inconvenience arising from such evidence of title 3 which is a warning td us to make no sucli precedent here. The ratification is of no force in this State. The Governor issues the grant as a matter of course, when the survey is returned, and the grantee takes it at his peril, as to the regularity of his previous proceedings. And if the Court sees that it has issued improvidently, they will not aid the Complainánt, but leave him where ho is.

The Complainant is not entitled to relief, by having the Defendant’s grants put out of his way, or by converting him into a trustee. If the first be done, the Court will aid in cheating the State, or the decree will be nugatory. If tlie State lias any means of revising the grants, the decree will do him no good $ for they ought to be vacated. If they can be vacated on account of the surveys, then he has no title which this Court can uphold or aid.

Nor can Walker bo converted into a trustee. If his grants be regular, Jtoery should place himself in the same, situation to ask a conveyance from him, as to ask one from the State. But by the shewing in the bill, the grants of both parties are liable to the same objections, and both have been guilty of the same offence against the State. A Complainant must come here with clean hands, and the Court will never, for him, separate the foul from the fair part of his case, for the sake of giving him relief. Where parties are in pari delicto, Courts refuse to interfere, except in cases where public policy requires it. 1 Fonb. Eq. 25, 138 — 2 Chan. Cas. 15 — 1 Vern. 452 — 2 Vern. 603 — 1 Chan. Cas. 202. — 6 T. M. 409 — 13 Ves. 581 —4 East. Hep. 372 — 1 Ves. 277,206 — 4 Ves. 811 — 2 Vern. 156. Justice to the State requires that both parties should be stripped of their titles. Walker’s grants ought not to be cancelled and Avery’s be let to stand: nor ought Walker to be compelled to convey his title to Avery, to enable him the better to defend himself against claims of the State.

* Conf, Rep. 441.

† 1 Wheat. Rep. 15$,

* Sugd. Vend. 504.

† 2 Hayw. 336, Conf. Rep. 551.

‡ 18 Vfcs. 170. 1 Mad. Eq. 91. 2 Hayw. 101,108.

§ Exparte Bennet. 10 Ves. 385.

|| Meelor v. Kimball, 1 L. Repos. 157.

¶ Exparte Bennet. 10 Ves. 385. 1 Mad. Eq. 92, 93. 7 Bro. Post. Cases, 367. 1 Sch. and Lef. Rep. 131.

* 1 Wm. Bl. Rep. 505. Com. Dig. Title, Viscount, E.

† 2 Plowd. 465.

* 1 Whea. Rep. 115.

† Id. 155.

* 1 Salk. 95. 5 Cranch 243, 248.

* 8 Rep. 118. Com. Digest, Title Justices, 1.3.

† 1 Inst. 3. b. Cro. Car. 279, 555, 557.

‡ Bingham, 230-1-2-3.

§ Com. Dig. Tit. Return, B. 2.

* 1 Bl. Com. 449. Dyer, 188. Bing. 222.

† 1 Wm. Bl. Rep. 506.

‡ 2 Bin. Rep. 105.

* 1 Mad. Eq. 203, 205.

† Id. 236, 237.

‡ 2 Wash. Rep. 116.

* Com. Dig. Tit. Viscount. C. 1.

Hair, Judge,

delivered the opinion of the Court, as follows:

This case comes on upon a motion to dismiss the bill. In support of that motion, the Defendant’s counsel allege that the lands were not the subject of entry at the time when the Complainant made his entry — they were parts of the lands reserved to the Indians for their hunting ground, as is declared by the act of Assembly passed in 1783, ch. 2. And it is contended, that notwithstanding the Treaty with the Cherokees, of 1791, by which their title became extinct, the lands did not thereby become the subject of entry, without some further Legislative act, We do not deem it necessary to decide the question at this time; because, admitting the entry to be good, there is another objection, which, being sustained, must jiave tjie effect to dismiss the bill.

The bill states that the surveys were made by the Complainant himself, under an authority to do so from the surveyor for the county. It does not state, that he or the chain-carriers were sworn.

An act of Assembly passed in 1777, ch. 1, directs the manner in which a surveyor shall be appointed, and prescribes the oaths that shall be taken, and directs' that bond and security shall be given for the faithful discharge of his duties of office. By another act, passed in 1779, ch. 6, s. 5, surveyors are authorised to appoint deputies ; but, before entering on the duties of office, they also must take an oath of office. The first mentioned act declares, that no surveys shall be made without chain-carriers, who shall actually measure the land surveyed, and shall be sworn to measure justly and truly, and to deliver a true account thereof to the surveyor, who is authorised to administer such oath.

There was, at that time, much vacant land in the State, and it was deemed expedient by the Legislature, to dispose of it to individuals. The entry-takers, surveyors, and chain-carriers were the persons on wrhom the trust devolved of parcelling it out, as the different acts direct. When an entry was made of land, and a warrant of survey issued, it was the duty of the surveyor to survey as much land as the warrant called for, and no more or less: nor lias the law authorised or trusted any other person to do it.

If the Complainant had qualified as a deputy surveyor, he could not be permitted to survey his own land : there would be no necessity for it. Such surveys may be made by the surveyor or other deputies. Whether the principal surveyor can survey land for himself, need not be decided in this case. The Complainant, as a deputy surveyor, surveyed for himself, without being sworn, or having sworn chain-carriers. Upon his location thus made, we are called on to superadd the legal title which, it is charged, is in the Defendant. The bill further states, that Walker was authorised by the surveyor to survey land for himself; but, that in fact, he never did survey them, but took the surveys from the Complainant’s field-book : and that upon such surveys, he obtained his grants from the State. We are called upon to re-cognise that title, and compel the Defendant to transfer it to the Complainant — a title, however improperly obtained, which would complete the Complainant’s right to the land ; though he has as few merits on his side, and as little equity to call for it, as the Defendant had when he acquired it.

The Complainant’s surveys were not made as the law* requires ; and if they are to be countenanced, and it shall be said that every person may be his own Surveyor, those strong guards which the law fixed against fraud and imposition, will be at once broken down. What security have we, that twice the quantity of land is not included in the Complainant’s surveys, that ho entered and paid for ? I cannot doubt in the case. The bill must be dismissed with costs.