3g HIGH COURT OF CHANCERY.

THE CHANCELLOR:

This is then the case of an information filed in the year 1842,
at the relation of a party whose title, whatever it is, commenced
in 1841, to vacate a patent of land granted in 1795, which the
the patentee in 1797, sold and conveyed for a valuable consid-
eration, to an individual who could not have had notice of the
facts upon which the patent is now impeached.

It is certainly true, that a warrant of resurvey does not author-
ise a party to include vacancy not contiguous to the tract or
tracts to be resurvey ed—and it is equally well established law
of the land office, that a person who has not a title to the land
on which he obtains a warrant of resurvey, does not, in virtue of
such a warrant, acquire a right of pre-emption in the adjoining
vacancy—and yet the cases of Hammond vs. Norris and Ham-
mond vs. Warfield, 2 H. & J., 140, 141 and 151, show, that
patents obtained from the land office by a party who has no
legal title to the original, or upon a certificate of resurvey in-
cluding vacancy not contiguous to the original, are neverthe-
less valid and available, unless some intervening right of a third
party shall deprive them of their operation. These cases prove
conclusively, that such grants are not void, though obtained
irregularly and against the rules of the land office, and the case
of Hammond vs. Ridgely, 5 H. & J., 263, shows that a grant
is not void, though the surveyor includes land not within his
county, if no fraud is practiced, though upon caveat in the land
office the grant would have been refused.

These departures, then, from the rules of the. land office, will
not void the grant, if the ingredient of fraud is wanting, and it
is believed that no case can be found, on which a grant has
been vacated except for fraud in fact, charged and proved.
The cases in 1 H. & J., 332 and 374, are very strong to show
that actual fraud is indispensable in an attempt to vacate a
grant. The case of Hoye vs. Johnston, decided by the Court
of Appeals at December term, 1844, was a case of actual fraud
upon the rights of a third party, who had previously acquired
an interest in the land, and was put expressly upon that ground.
But this is not a proceeding to vacate a patent whilst the