#### Jackson, *ex dem.*Shultze and another, *against*Goes.

ejectmenttoVenmMn”tite1 initííé^demlse’o? Ufffproduced'in tent top, l.,pal anee it the^ct of the 6th *April.*1790, “to *carry into effect'<thc concurrent nsolutxons of the. la&siature, for granting certain lands promised to be given as.bVunlands promised £*tL^deféndaiit tbere^was^notblrname°oDf pf who was too revoihtionarSybe war to be a soldier, and that km» the war and It ':nponfttwt *£ Sant was eni ment. t0 juds*.

for ’a CdSdañt provlctmt|at la ||pafentema°i? same name, was grantUed,by the

THIS was an action of ejectment: brought to recover lot 39., in the town of *Manlius,*in the county of *Onondaga**The cause was tried before Mr. Justice Yates, at the *Onondaga*circuit, *1X1'June,*1-8-16. ' . . -

At the trial, the plaintiff produced in evidence letters patent, dated the i3th of *September,*1790, by which, ift pursuance of an *1*’ , *~1*act ot the legislature, passed the 6tn of *■ 9 } 1** , « An act tocarry into effect the concurrent resolutions ancl acts *,*0f legislature for granting certain tends, promised to be *ilj*1790; entitled gjven as bounty lands, and for other purposes, therein inert-tioned,’’ the premises in question were granted to *Peter Shultze*in ffee.. It was proved' that *Peter Shultze,*' one 'of ' the lessors of the plaintiff, was now living, and had,.for twenty years -past,, lived at *Rhinebeclc,*in the county of Dutchess.

*Daniel Petre,*a witness bn thé part of the defendant, testified, d * • ” i ■■ . " « "i • ' - that about seven years.ago, he saw at a meeting of. the- brnders ® militia artillery regiment; at *N*éto-Harlfórdl;a mail ii&méd Hfiter *Shultze,*who was a second lieutenant in the regiment, ahd tiffed At *Warren,*in the county of *Herkimer,*and was, at that time, alrout 31 or 32 years of age. ’

*Timothy Teal,*another witness on the part of the defendant, testified, that in *August,*1812, he went- *••toRhinébeck,*-tp--séé- *Peter Shultze,*for the purpose of procuring evidence of the fact, whether; *Shultze*had ever been a soldier in-the revolutionary war, and was entitled to bounty lands, a suit being then pending *n favour of *Shultze,*against one *Bristol,'for ¿he*premises in ques*519íion. The witness inquired of *Shultze*if he had a lot of land in the military tract, and *Shultze*said that an officer up the *Mohawk*river had drawn a lot for him, but his attorneys had told him to say nothing about it. *Shultze*further stated, that he was never up the *Mohawk*river, nor at fort *Stanwix,*and had enlisted a man during the war, and should not have known of his having a lot, had he not been informed of it by a gentleman,, and he did not know how much of it he should get. The witness stated that *Shultze*appeared to be about sixty years old.

*Samuel Van Orden,*another witness on the part of the defendant, testified, that he had, about ten days before the trial, been employed by the persons under whom the defendant held, to go to *Rhinebeck to*ascertain whether *Shultze*had *been*a soldier during the war, and that *Shultze*told him that he was chosen a lieutenant at *West Point*and at *White Plains,*but had never served at the *Northward,*nor had been a private during the war. When the witness asked *Shultze*what he had done with his military lands, he said that one *Tillotson*had proceeded to get his land, and had lost one or two suits, that he never expected to get any thing, and had not enlisted during the war, but claimed the land in the right of a soldier whom he had hired as a substitute.

A verdict was taken for the plaintiff, subject to the opinion of the court, on a case containing the facts above stated.

*Vanderheyden,*for the plaintiff.

*Loucks,*for the defendant.

*For the Plaintiff,*it was contended, that the letters patent to *Peter Shultze*must be conclusive, unless it was issued without competent authority, or was void on the face of it, or was prohibited by some statute.*

In the case of Jackson, ex dem. *Horseman,*v. Hart,† it was held that patents granted to soldiers for military services, did not come within either of these exceptions. The commissioners of the land office, in issuing these patents, were directed, by statute to adjudicate on the claims, and thus acting.in a judicial character," their judgment can no more be declared void than those of a competent court of law.

If these patents are not void, but voidable only for mistake, *520then the proper- remedy is by *scire facias,*out of chancery,, .to vacate them ; on which the'patentee, or in case of bis death, his legal-representatives, must be summoned to show cánse.

-The -consideration of letters paten t Can no more bednquired into :by a Tqurt of law, than the consideration of a deed. ’

The defendant cannot set up any title in- the slate, for such. title must be inchoate only, and it requires certain proceedings in chancery to reyést the property in the state;, as, in. ejectment,-, the -tenant cannot set up the *alienage*of the lessor of theplaintifiV before *office found******Could-the state take-possession of-this lot without a previous application to a c.ourtof chancery to vacate- the *.patent-1*And if an action of ejectment should be brought .in the name of the people,'might-not a tenant show a tide out of the -lessors, by producing the letters patent to *Peter Shultze*Z. Tlieré. .can be no necessity, in this case, of resorting to parol evidence; for-it is not pretended thatflie grant Was for any "per* son-.but the lessor. There is no latent ambiguity, as there is no person of a similar name^claiming tide to the premises,, as whs the ease in *Jackson,*ex dem. *Dickson and others, v.*Stanly,† and *Jackson,*ex dem. *Houseman,*v. *Hart.*

Again’; the tenant in possession- has', a mere naked1 occupancy, a, species of title which the- *Chief Justice,*in *Jackson v.*ffari, contrasted with that of the defendant,'

That it was proved at the trial that the lessor, of the plaintiff -confessed he had never served in -the line of the army, is perfectly immaterial ; as no consideration of military-services is expressed in the letters patent, that fact cannot/be inquired into in .a court of law.

On the production,of the letters patent, in this case, the plain* tiff is entitled, *prima facie, to*recover. The *onus prohandi*lies on the defendant to showthé title to be in the person under whom he claims.;' It is no answer to the plaintiff’s claim,, that.thefe is a- person of the same name with the lessor,-without s-howing-m title to the premises in such person.- Besides, how is it certain, that the person proved by. the defendant is. not, in truth, the- les-. sor of the plaintiff ?

*■For the*defendant, it was argued, that on the- principles, ad* knitted in the case of *Jackson,*ex, dem. *Houseman, v. Hart,*the correctness of which decision- i f w as not .-intended *to-*question, the defendant was entitled to Judgment in his favour. The court there said the patent was conclusive,, that, the paten* *521tee named was the person intended by the legislature; and that where a person of a different name claimed the land, parol evidence was not admissible to explain that intention, it was agreed, however, that if there were two persons of the same name, it would be a latent ambiguity, and parol evidence was admissible to explain which of the two was intended.

The lessor 'of the lessor, no doubt, on producing the patent, is, *prima*facie, entitled to recover; but the defendant having proved the existence of another person of the same name, the burden of proof, as to the identity of the patentee, is thereby thrown on the plaintiff; for the plaintiff in ejectment must, emphatically, recover on the strength of his own title.

By the act of the legislature, a certain district of country was set apart for the two regiments of this state, serving in the army of the *United Staíet,*and no patents were to be issued to any other persons. This is a public act of which the court are bound to take notice. The patent in question was granted for a lot of land in the tract discribed in the act; and the intention of the legislature is thus made manifest by the act. The act and the patent are to be taken together; and it clearly appears from them, not only that a person of the name of *'Peter Shullze*was intended, but that he was a soldier; and if the defendant, on the trial, shows that the lessor of the plaintiff was not a soldier, that fact will be sufficient to prevail over the mere circumstance of a similarity of name.

*

 Jackson, ex dem, Mancious, v. Lawton, 10 Johns. Rep. 26.

†

*12 Johns. Rep. 77. 82.*

*

**Jackson *v. Beach, 1 Johns, Cas. 401.*

†

*10 John. Rep. 133.*

P.LATT, J.,

was of opinion that the plaintiff was not entitled, to recover, and thought the ease clearly distinguishable from that of *Jackson,*ex. dem. *Houseman,*v. *Hart*the principle of which decision he held to be sound law.

Yates, J., and Van Ness, J., declared themselves to be of the same opinion.

Spencer, J.

The court being unanimously of Opinion that the defendant is entitled to judgment, but, for different reasons,: it is rendered necessary for me to state, very briefly, the grounds of my opinion. .

It is a general and universal rule in this action, that the plaintiff is to recover on the strength of his own title, and unless the defendant is estopped from controverting the plaintiff’s title, he may rest on his possession, and attack the title under which íhe plaintiff claims. The grant under which the lessor deduces *522his-title was issued under the act to' carry into effect the concurrent resolution and acts of the'legislature: for granthig certain lands, promised to be given as bounty lands; and by reference to those resolutions and acts, it will be seen, that the objects of that bounty were the officers and soldiers serving in the army of the *United States,*in the line of this state, to wit', *Lamb's*regiment■ of.artillery and two regiments of infantry. \ The letters patent to *Peter Shultze*Were,.undoubtedly, intended, to vest in him, as a soldier in one of those regiments, a.titl-fe to the lot,, in question, as a bounty for his services in that.capacity. It is-perfectly clear, that the lessor1 of the plaintiff cannot *ho. the Peter, Shultze■*to whom the grant was made,, because the lessor' confessedly was-not a soldier in the revolutionary war. It is equally certain, 'that *Peter Shultze,*who resided, seven years before .the trial,' at Warreñ, in *Herkimer*county, could not be entitled to military bounty for revolutionary services *•*for, according to the-case, he was born about the year 1777, and thfe war terminated in 1783, at which time he was about six years of age. I am of opinion, that, independently of the existence of *Peter Shultze*of Warren, it would have been-competent for the defendant to show that, the lessor of the plaintiff, *Peter Shultze*of *Rhinebeck,*was not, the patentee, and had no title?' merely from the adventitious circumstance of a similarity of pame with the patentee, to recover possession of fhe premises; this opinion, if appears to me, is warranted by the unanimous judgment of the court, in *Jackson v. Stanley,*(10 *Johns. Rep.*133.)

In the subsequent case, of *Jackson*v. *Hart,*(12 *Johns. Rep.*77.,) though Í took no part in that decision, having been una-' voidably absent when it was, argued) I understand from the opinions expressed, thatf.it'iyas not intended to shake, much less to overrule, the prior decision in *Jackson*v. *Stanley.*The identity, of a grantor, in many cases, is a latent ambiguity. The deed is, on the face of it, free from ambiguity ;,the extrinsic or collateral matter out of the instrument, produces the ambiguity. The caseí- commonly put, is where there .are two persons of thé same name, to both of whom the description in the deed is, equally applicable; parol proof is then resorted to) to show to which of the two. the deed was intended to be given. Lord *Cheneyes'*case (5 *Co. Rep.*68.b.) is the earliest case on the subject, and has never, been doúbtedi I cannot think it was necessary for the defendant td prove that there were two persons, in existence, at the time sf the trial, of the name of *Peter Shultze,*jit*523order to be let in to show that the lessor of the plaintiff was not the patentee. There, undoubtedly, was such A man, who in the army of the *United States,*in the line of this state ; this is proved by the letters patent; then why was it not admissible to the defendant, to show that *Peter Shultze*of *Mhinebeck*was a different man ? It seems to me, that the proof that there was another *Peter Shultze*living at the time of the trial was making no progress in disaffirming the pretension set up by the plaintiff, that his lessor was the patentee, when at clearly appeared that this *Peter Shultze*could not possibly be the patentee; the only effect of this was to show, what required no proof, that there are many persons in the state of the same Christian and surname.

In this action, whenever the plaintiff introduces a deed conveying the premises to a person of the name of his lessor, it is *prima facie*evidence that the lessor is the real grantee ; "the burden of disproving this, and repelling the presumption, is thrown on the defendant, and he may prove that the deed was granted to a different person of the same name. If it be not so, then any man who can find a deed on record, to a person of the same name, may use it for very mischievous purposes»' If the lessor of the plaintiff is not the patentee, then he has no title to the lot; and may not the defendant who is in possession, and can protect himself against every one but the true owner, show all the necessary facts to make out that the lessor has no title to the premises ? Such proof does not vary or contradict the deed, but is perfectly consistent with it. It admits the grant to have been correct, but shows that the lessor Is not what he assumes to be, the person to whom it was made, and that he has no right, not being the patentee, to'turn the defendant out of possession.

Without being influenced at all by the evidence that there was another *Peter Shultze*in existence at the time of the trial, or a few years before, my opinion proceeds on the ground that the lessor of the plaintiff is proved not to be the patentee, and I hold that proof to have been correctly given»

Thompson, Ch. J.

I concur in giving judgment for the defendant. I had come to a different conclusion, supposing that this case could not be distinguished from the case of *Jackson*v. *Hart,*(12 *Johns.*Rep. 77.) But, as I dissented from the opinion of the court in that case, and my brethren who were parties lo it, thinking it is not in the way here, I feel no hesitation in ’saying the plaintiff is not entitled to recover, I put it on the *524ground, however, that 'neither *Peter .• Shultze,*the lessor of tita plaintiff, nor the other *Peter .'Shultze*mentioned in the case, was the person'intended as the patentee. it appearing, by the. case¿ without “entering particularly into the .testimony,, that the latter ■was not born at the commencement, of. the revolution, and the former-not, coming within the description of the persons'-men* tioned in the act of the legislature, under which the'patent was issued, and *to which it refers.*That-the identity -of'‘the patentee, is a matter that may be inquired ipto in this 'collateral, way, is settled by the case of *Jackson*v. *Stanley,*(10 *Johns. Rep.*136.,) and which‘casé I understand it.was not intended ,to'overrule by the decision in *Jackson*v. *Hart.*An inquiry asto the idea* tity.of.the patentee, dpes noty in ,any manner, contradict, or make void, the patent; nor does it imply.that there is not a person *in es.se*capable of taking under the grant, ft only goes to show that-the person claiming to be the .patentee was not. such person. If it should appear that he was the .person in» tended, ’ the- inquiry must there'stop.If the C.ommissionei’s of the land office had mistaken their powers, and made a grant to a person not coming within the description in the act, and the patent was sought to be vacated on that .ground, there; can be no doubt that it must be done by some direct judicial pro* eeeding. But an inquiry into the-identity of a patentee, would not come within the scope' of a' *scire facias. '*This can- only arise when some person comes forward to assert a right und'ér' the patent; it is then, and then only, that it can be objected to him, that he is not- the patentee, although he may have the same name. It is altogether a mistake that such, an inquiry Is an attempt to vacate the patent.' It leaves it in full force and effect, according .to its original intention and operation. This is not a naked grant to *Peter Schultze.*The .patent refers to-the act under which it was issued, containing a description of-the persons'intended to be embraced within the bounty of the legislature. This may be considered as matter of description adopted by the patent, and which necessarily opens the door to let in the inquiry,- whether the -person claiming to be the patentee answers such description ? The identity Of the-grantee. as well as of the thing granted, must, generally speaking, partake, more, or less, of a latent ambiguity, explainable by testi* mpáy, *dehors*the grant.; It cannot be that this inquiry, is restricted to the single case of ambiguity occasioned, -by there-appearing to be- two persons bearing the name of the patented *5251 can discover no sound reason for such restriction, and I am persuaded that the rule, thus understood, is too limited to meet all the cases that may arise, necessarily requiring its applieation. It is, therefore, upon the broad ground that it is always open to a defendant in ejectment to show that the lessor of the plaintiff is not the person intended by the patent under which he sets up his claim, although he may bear the same name, Shat I concur in the judgment for the defendant.

Judgment for the defendant.