Opinion
June Term, 1806.
1. Upon the trial of a caveat the only question is, Who has the best equitable right to procure a grant for the land?
2. Facts known to a party before trial, but omitted to be proved upon a belief that the evidence offered was sufficient, no good reason for a new trial.
THE defendant entered a tract of land lying in Person County; the plaintiffs caveated the entry, and by consent of parties the caveat was tried in court, when a verdict was found for the defendant. The plaintiffs obtained a rule for a new trial upon an affidavit setting forth (1) that their ancestor, Thomas Person, in his lifetime, obtained a grant from the State for the lands in question, and therefore the jury ought to have found a verdict in favor of the caveators; (2) that the said Thomas Person had purchased an improvement on said land from the first occupant, and therefore had the prior equitable right to the land. But this evidence was not produced on the trial, because the caveators conceived the grant aforesaid to be sufficient. The case was sent to this Court upon the question whether the rule for a new trial should be made absolute or be discharged.
From Hillsboro.
Upon the trial of a caveat, the question is not which of the parties has the better grant or title, but simply which has the best equitable right to obtain a grant. It is the peculiar province of the jury to determine this question from all the facts disclosed to them on the trial. The verdict of the jury, therefore, saying that the defendant Davey is entitled to a grant, cannot impair or destroy the grant of Person's already obtained; and if his grant be valid in law, his heirs will be able to secure the land in dispute. The Court therefore think that on this ground a new trial ought not to be granted, but that Davey should be permitted to obtain his grant and the parties be left at liberty to determine the validity of their respective grants by a trial in an ejectment or in such other mode as they may choose. The second reason assigned for a new trial is insufficient, as the fact (116) disclosed in the affidavit was known before the trial of the caveat and the proof of that fact omitted to be introduced through the negligence of the caveators. Let the rule for a new trial be discharged.