It seems that the Sheriff conveyed the land in question not only without knowing it, but contrary to a determination he had made not to do it, because lie considered that he had only levied upon and sold 125 acres, the land on which Robert Cheek the elder lived. Nor could he have been prevailed upon to convey it, if the course including it had not been inserted in a way calculated to deceive him, by estimating the whole amount conveyed at 125 acres, more or less ; for he was altogether unacquainted with the courses.
Design or fraud, practised upon innocence and ignorance in this way, ought not to have the effect to deprive men of their rights, and put it out of the power of Courts of Common Law to restore them. I do not concur in the opinion, that Use deed executed by the Sheriff is conclusive and binds the title. I do not hesitate to say, that the rule for a new trial should be made absolute.
Whether the deed of the Sheriff, fairly obtained, shall be conclusive on the parties and all claiming under them, we do not deem it necessary to decide, for we think a preliminary question fairly grows out of the evidence, which should have been distinctly propounded by the Judge to the Jury, namely, whether the deed was fairly or fraudulently obtained; for a Court of Law has cognizance of the question, as well as a Court of Equity. This question fairly arises upon the evidence j the Judge erred in telling the Jury that the deed 'was conclusive without evidence of what the Sheriff sold, without calling their attention to the circumstances under which it was executed, and informing them that it did not pass the lands in controversy, if fraudulently obtained.
Taylor, Chief-Justice, concurred, and a new trial was granted.