subject, were designed to settle claims between the government, and not to extend to the conflicting claims of individuals, which were left for final adjustment to the tribunals of justice. In regard to the present controversy, we have been appealed to for its decision, and are of opinion that justice and equity demand, at our hands the effectuation of complainant's rights, so long and so unrighteously usurped. That the patent from the Spanish government to James Mather, and the confirmatory certificate of the American board of commissioners to George Mather junr. ought in good faith, on the part of the former, and of right on the part of the latter, to have been awarded to R. Stark and his heirs, and that in principle the present is strongly analogous to the case in 1. Sargent and Rawles, Rep. 208; where Tilghman, chief justice, speaking of a patent erroneously obtained, says: "The officers of the commonwealth are to give the patent to him who is entitled to it, and if they give it to any other person, that person is no more than a trustee for him who has the right. This is the settled law in our courts, and the courts of the United States adopted the same princiciple in Hordikepper's lessee, vs. Douglas." We are of opinion that defendant should deliver up the premises to the complainants, and convey to them all his right and title, and pay the costs of suit. Judge Ellis concurred. Judge Stockton dissented. Note. It is much to be lamented, that no notes have been preserved of the arguments of counsel in this important case. The opinion of the court is certainly able and eloquent; but with every feeling of respectful deference, it seems difficult to perceive, how the defendant could be decreed to stand towards the complainant, in the relation of a trustee. The grant of the Spanish government conferred no title on Robert Stark, according to the principles now settled by the supreme court of the United States. Nor was this title embraced within the provisions of the articles of agreement and cession between Georgia and the United States. The title, was not "legally and fully executed," according to the provisions of that compact, even if Stark could be viewed as a settler within the meaning of the articles. Were Stark, however, viewed as embraced within the provision of these articles, or of any act of Congress, his title would have been forfeited for want of proper presentation to the board of commissioners as required by law. The title of Stark, then, was a mere nullity, that of Mather was a complete legal title, being embraced within the articles of cession, and confirmed by the United States. How then could Mather be viewed as a trus tee for Stark? He did not hold under Stark's title, for that was a nuility, but by a distinct title of his own, unconnected with that of Stark, embraced within the provisions of the compact with Georgia, and confi. med by the United States. He who holds the legal title may be decreed to stand as trustee for the person holding the equitable title, but Stark never held any valid title, legal or equitable. What avails it even if the Spanish Government could not revoke their grant, if that grant was a nullity. If Mather had taken possession under the title of Stark, and procured a confirmation of that title in his own name, the question might be different; but he took and held possession by a title wholly distinct from and directly adverse to that of Stark, which adversary title was confirmed by the United States. This confirmation might by the retrospective energy of the compact with Georgia relate to the Spanish grant to Mather so as to give it a legal existence; but that would only operate to rendervalid the Spanish title to Mather, which title was directly contradictory to, and destructive of the title of Stark. The cases in which a patentee is directed to hold the title as trustee for another person, are when that person and the patentee hold under the same original title, and the offieers of government in obedience to the law, should have given the patent to such person and not to Ꮓ the patentee. Courts cannot create titles, and Stark never held any valid title. The officers of government cannot create titles, and had they given a patent to Stark, they would have disobeyed the laws, which alone can vest the title, and the patent would have been invalid. But it is said that the act of the Spanish government in revoking the grant to Stark, and granting the same lands to Mather, was a lawless act of arbitrary power, and that Mather participated in the misconduct of the Spanish government, in other words that the Spanish government should have completed the title of Stark, and that congress should have confirmed his title, and therefore that the court will do what, in their opinion, should have been done by the governments of Spain and of the United States. And are the courts of this country competent to vest a title in an individual who never had any valid title, legal or equitable; and are they also competent to divest a complete legal and equitable title, created by the only power which can dispose of the public domain? If the Spanish government acted unjustly in granting a title to Mather, and the Congress of the United States participated in that injustice, in confirming that title, the judicial tribunals are not competent to correct the errors of the government, so long as the constitution is not violated by any legislative enactment. Stark having no valid title, legal or equitable, Congress, the only competent power to dispose of the public domain, vested a title in Mather. In doing so, no provision of the constitution was violated, and the justice or propriety of the act does not come within the sphere of judicial enquiry, otherwise the courts are omnipotent, and may repeal or disregard any legislative enactment which appears to them inexpedient or unwise. Mather's title being embraced within the treaty with Georgia, and the acts of Congress carrying that treaty into effect, was itself protected by the constitution, which makes a treaty the supreme law of the land. Mather is said by the court to have held possession, in contemplation of law, as trustee for Stark. If so, the statute of limitations, which does not run as between trustee and cestui que trust, would never have given Mather a title, yet his possession was clearly adrerse, and under a claim of ownership, and title also directly adverse to that of Stark, and the statute of limitations would undoubtedly have run in favour of such a possession. The court, it will be perceived, were divided in opinion. HENRY HUNTER'S ADMRS. vs WM. HUNTER & T. B. DOUGHARTY, OPINION OF THE COURT-BY THE HON. EDWARD TURNER. This is a motion made, at the last May Term of the circuit court of Wilkinson county, for the application of money made by the sheriff on the sale of the property of William Hunter, against whom the sheriff held several executions; and among others, that stated above of H. Hunter's administrators vs. William Hunter and T. B. Dougharty-the latter being the security of William Hunter. The following facts appeared on the motion being made:-That on or about the 14th of January, 1823, William Hunter made his note of hand, with T. B. Dougharty security, for 1722 dollars, payable six months after date, to William Yerby, administrator of the estate of Henry Hunter, de ceased-that said bond was given in consideration of slaves bought by William Hunter, of said administrator-that on the 21st of February, 1823, the said William Hunter mortgaged to said Dougharty, the said slaves, and a tract of land, being the same slaves and land levied on and sold under the above execution, to indemnify the said Dougharty for giving security as aforesaid. That on the 8th of May, 1823, R. M. D. J. Elliott, obtained judgment against said William Hunter, for 104 dollars and 47 cents, besides coststhat on the 13th of May, 1823, John Hudry obtained judgment against said William Hunter, for 407 dollars and 60 cents, besides costs—that on the 4th of May, 1824, James T. Crifford obtained judgment against said William Hunter, for 165 dollars, besides costs--that on the 3d of February, 1825, Henry Hunter's administrators obtained judgment against said William Hunter and T. B. Dougharty his security, for 1942 dollars and 58 1-2 cents, besides costs, being the aforesaid debt, for which the bond or note first above named was given-that executions regularly issued on these several judgments after they were rendered-that Hudry's execution was levied on the land in question, but not sold previous to February 1825-that executions on all the above stated judgments issued, returnable to May Term, 1825; on all of which the sheriff makes the same return, which is in substance as follows, to wit:-That he levied on the 7th of March, 1825, on 449 acres of land, which was sold to James Quinn, for 500 dollars, and on 4 negroes, slaves, which were sold to William and Michael Dickson, for 1188 dollars, and there appearing a doubt which execution is entitled to the credit-and being notified, as to the appropriation, that he held the money subject to the order of the court. It further appeared, that this property was surrendered by said Dougharty to the sheriff, to be sold to satisfy the execution of H. Hunter's administrators vs. Hunter and Dougharty, aforesaid, and required the money to be applied in satisfaction thereof, and consented to the sale for that purpose, and that only-and it is admitted that W. IIunter is insolvent. It does not appear to the court, at what time Elliott's execution first issued, but is it conceded that the several judgments aforesaid, bind the estate of William Hunter from their respective dates, or if they do not, that exe cutions thereon, having been in the hands of the sheriff previous to even the judgment of Hunter's administrators vs. Hunter and Dougharty; they all have precedence of the latter, and must be first satisfied out of said proceeds of sales. Upon this statement of facts, it is contended, by the counsel of T. B. Dougharty, that his mortgage bound this property, that as it was sold by his consent, to pay the debt for which the mortgage was given-that as it was produced and surrendered by him for that purpose, he is entitled to the benefit of the credit for the proceeds of the sale thereof, on the execution against Hunter and Dougharty. On the other hand it is contended, that Dougharty, being but a mortgagee of said property, his interest therein was not liable to sale on execution that Hunter's interest as mortgagor was liable to be sold; that the previous judgments and executions were a lien upon Hunter's interest in the mortgaged estate, and that the same being sold, and the money in the sheriff's hands, they are entitled to satisfaction; and they cite 4 Johnson's Rep. 41; 1 Caine's cases in E. 47; 5 Johnson's Rep. 335. The importance of this case is felt, more in relation to the danger of Dougharty's situation, than as it regards the legal principles therein involved. If Willam Hunter was solvent, it would matter but little how the case resulted. But as he is insolvent, and Dougharty being likely to suffer innocently and to pay the debt of his principal when he had taken honest and timely steps to secure himself against his friendly act in going Hunter's security. I have labored to find some ground or principle on which he can be protected. His case is worthy of the reflection and research which I have given it; but it is in vain. It is not in the power of this court under present circumstances to relieve him. I will not say that his case is ultimately hopeless. He may yet find relief in another way, or before another forum; and although we cannot advise him as to his remedy, or whether he has any, we will not say to him that he has no rights, no remedy left. He appears to the court to have acted fairly in the transaction, but to have been ignorant of his rights. There can be no question at this day, but that an equity of re demption is liable to sale under execution. The plaintiffs in the former, or elder executions, had the right to require the sale of that equity and interest which William Hunter had in the aforesaid property, and having been sold, they are entitled to so much of the proceeds as will satisfy their several executions and costs. Henry Hunter's administrators had also the right to sell the same equity, or what remained after satisfying the elder claims, and the sale having been one and entire, let the residue of the purchase money be applied to the credit of the last execution. I consider the law equally well settled that the mortgagees' interest in mortgaged property, is not liable to execution-that the sheriff could only sell and convey the equity of redemption of William Hunter; or in other words, all the right, title, &c. of William Hunter, in the land and slaves. Let the money be applied according to the principles laid down in this opinion. E. DISMUKES vs. C. TERRY. A court of chancery will grant relief in cases of mistake, as well as fraud, and this, as well in aid of A a complainant, as of a defendant in chancery. A resulting trust may be proved by parol, in opposition to the deed, and to the answer denying the trust party en eavoring to perpetrate a fraud, cannot succeed in a court of equity, against a particeps eriminis, but a party making a deed with the view to bar certain suppositious rights of his wife, does not commit such an act as will prevent relief, against a party endeavoring to pervert the deed to fraudulent purposes. OPINION OF THE COURT-BY CHIEF JUSTICE HAMPTON. This cause was argued before the Supreme court sometime ago, and if my reccollection be correct, all the judges who presided at the hearing, among whom was his honor, the present chancellor, were well satisfied that complainant, unless his participation in the fraud which he charges on defendant precluded it, was entitled to the relief asked of the interposition of this court. Pressed on the one hand by a conviction of the equity of the plaint, and deterred on the other, by the suspicious badges worn by him who made it, the court not willing too rashly to deny its statutary power, in relieveing against successful fraud, or too precipitately to employ it, in |