
    PETER W. LITTLE and MARY his wife, and JOHN M'FARLAND and ELIZABETH his wife, against ROBERT HODGE and DANIEL CLARK.
    IN' ERROR
    The mode of appropriating donations in land, to the officers and soldiers of the Pennsylvania line, in the revolution, adopted after the war.
    The officers of the government entrusted with the appropriation of donation land, could at no time give a patent to an applicant for any tract he might ask.
    A patent for a tract of donation land is void, unless given after drawing, and for the number drawn.
    If one man draw a number, and a patent for the land designated by that number were issued to another man, such patent would be void; and the man who drew the number would be entitled to the land.
    Where any officer, or soldier once drew a number, in no event could he, or any one in his name or right, afterwards draw another [tract.
    Independent of any other evidence, a patent for donation land would be presumptive evidence that the patentee had drawn the number for which such patent had issued to him; although his name did not appear in the comptroller’s list, or on the general draft.
    But such presumption would not prevail where his name did appear in another number, and a patent had issued to him for that number, and where the number for which his patent issued, without having his name in it, was subsequently drawn from the wheel in the name ofanother.
    Writ of error to the Court of Common Pleas of Mercer county.
    The action was ejectment to recover a tract of donation land, containing two hundred acres, No. 763, in district1 number 4. The plaintiff made title through Robert Parker, a lieutenant in the Pennsylvania line, and exhibited a patent to him for lot No. 763, 4th district, dated the 28th day of February 1794, the general draft of that district, in which his name appeared in that number, and also the comptroller’s list, in which No. 763, in the, 4th district, is set down opposite to his name as having been drawn by him. - '
    The defendants rested their title on a patent to Hinderliter, assignee of John Whiteman, for lot No. 763, in the 4th district, (being the same lot,) dated the 12th day of September, 1790. To defeat which, the plaintiff gave in evidence the following extract from the general draft of donation land in district number 9.
    
      
    
    They also gave in evidence a certified extract from the comptroller’s list, in which the name of John Whiteman, private, was inserted, and opposite to it two hundred acres, No. 1776, 9th district, and that this was the only entry on the said list in the name of John Whiteman.
    
    They also gave in evidence a patent to John Whiteman for lot No. 1776, 9th district, dated 18th April, 1787.
    The plaintiffs’ counsel requested the court to charge the jury: -
    “ 1st. That if the patent for the tract of land in dispute was made and delivered to Hinderliter, as assignee of Whiteman, it would vest no title in him, unless the number of this tract had been drawn from the wheel previously to either Whiteman pr Hinderliter, and that of this fact the jury must judge from the evidence given on the trial.
    “ 2d. That the patent to Hinderliter, which'-had been given in evidence, unless the name of Hinderliter or Whiteman was inserted in the general draft, and within the lot, must be postponed to the patent of the plaintiff; if the jury believe the name of Robert Parker was inserted in the general draft, and within the lot at the time it was drawn.”
    The court charged'the jury on the first point: that “ the granting of the patent is evidence of the drawing of the numbers.” And on the second point, that “ this omission by the officers of the State, would not vitiate a patent, if otherwise fairly obtained.”
    Several errors were assigned, which are substantially embraced in the points above stated, and the answers of the court thereto.
    
      Foster, of Mercer, for the plaintiff in error, argued,
    That there was a difference between a patent granted by the States, and the king of England. The former gives no title, but is prima facie 'evidence of title, the latter vests title until it is vacated. The one can always be contested by any other claimant to the land, the other cannot. 2 Smith, 191. He cited the 12th, 13th and 14th'section of the act of 1785, 2 Smith, in relation to donation lands.
    The evidence given, negatived the idea of regularity in the first grant.
    A patent is only prima facie evidence of a regular title. It may be obtained by fraud, or issued by mistake; it is not conclusive. Renner v. Raker, 4 Bin. 218.
    The first patent was issued without observing the requirements of the act of assembly, and must be postponed to the subsequent regular title.
    ■ The assignee of a patent is in no better equity than the assignor. Gonzalus v. Hoover, 6 Serg. Razóle, 118.
    The court did not answer the points fully: they did not tell the jury what the law would be, if the number in the patent had never been drawn. Vincent v. Huff, 4 Serg. Sp Razóle, 298. The court look the facts from the jury.
    The patent to Hinderliter was but prima facie. evidence of the facts recited;-and the presumption of regularity is removed by-proof that it had not issued according to law.
    It is the appropriation of the land by the legislature, and not the patent, which gives the title.
    The entry of the name in the general draft is made a record, in lieu of recording the patent.
    Of Hindeiiiter’s patent there was no notice .to Parker when he drew, in 1794, this number; and the former is guilty of that sort of laches which should postpone his claim.
    
      Moore and Ayres, contra.
    The patent is evidence per se until invalidated by conflicting evidence. Fraud is not to be presumed.
    The patent could not have issued, unless the number- which it calls for had been drawn; and so is the charge of the court. And if the number had been drawn, the omission on the part of the officers intrusted with the duty to insert the name in the number in the general draft, and the number opposite to the name on the comptroller’s list, would not vitiate the patent. The mistake of the officers could not affect the title, and therefore the first patent must prevail. No fraud was proved, and besides, the finding of the jury proves that Whitman and Whiteman were different persons.
    The law does not say that the connected draft shall be a record.
    
    These drawings for donation lands commenced in 1794, and continued untilT804.' If the plaintiff’s draft had been antecedent to the defendant’s patent, there might be some weight in their claim, but we are first in time, and therefore first in right.
    The court declined hearing Banks, for the plaintiff in error, in reply.
   The opinion of the court was delivered by

Huston, J.

During the war of the revolution, our legislature promised donations in land to the officers and soldiers of our army; and after the war, measures were taken to survey the lands, and very particular direction given as to the mode of appropriating a, tract to each soldier, in such manner that each might have the proper quantity, and no more, and might be able to ascertain with certainty the tract allotted to him. After the lands were all surveyed, and numbered, a general draft or drafts made, in which the number was inserted in each tract, a list of officers and soldiers entitled to lands made, see section 9th of the act of 24th March, 1785, and after every thing was prepared, a number was drawn for each.

The number drawn was put in a column annexed to the list, opposite the name of the person for whom it was drawn, and the name of the person, who drew a particular number, was inserted in that number in the general draft. This general draft was to be kept by the executive council until all applications were satisfied, and then to he deposited in the office of the master of the rolls; as a public record to serve to all intents and purposes in lieu of recording the patent: when the persons intrusted, who under the old constitution, were three of the members of the executive council, closed the drawing at any time, the wheels were closed, in their presence, and sealed; and so continued deposited carefully and safely, until further drawing was required. It was then not easy after a name had once drawn a number, to return that number into the wheel. When a name had drawn a particular number, not only was the number set down opposite the name, but also the name was inserted in that number, in the general draft, and a report was made of the name which drew, and of the number drawn to the President, or Vice President, who caused a patent to be made out, &c.

Notwithstanding all these precautions it seems mistake, or fraud has occasioned two patents to issue for the same tract; and we are to decide which is entitled to the land.

The officers intrusted could at no time proceed to give a patent to an applicant, for any tract he might ask. The law was imperative, he must take an equal chance, every one must draw, and he could not have the tract which he wished, or which the officers wished to give him; a patent would be, and is void, unless given after drawing, and for the number drawn. This matter was submitted to the court, and overlooked in the opinion.

What was done in the present case ? We have evidence that only one person of the name of John Whiteman was in the comptroller's list.

There is evidence that John Whiteman drew number 1776, in the 9th district, in the year 1787, and on the 18th of April 1787, a patent issued for this tract, number 1776, in the 9th district,to John Whiteman.

Either'this patent issued to the same man, (his name being spelled slightly different,) who drew number 1776, or to a different man, if to the same man, he has that tract, and is entitled to no more, and any claim he makes, or. which any one under him makes to any other tract, must be a claim founded in dishonesty and fraud. If the patent issued to a man different from him who drew number 1776, that is, if John VJhiteman^vAio got the patent, was a different man from him who drew number 1776, then the patent for that number is void, and John Whiteman is yet entitled to number 1776, and toa patent for it: but if there is but one John Whitema?i, and he drew number 1776, in 1787, in no event can he draw another tract afterwards, nor can any one in his name or right obtain a patent for another tract.

It is true, that independent of any other evidence, a patent would be presumptive evidence, that the patentee had drawn the number for which a patent issued to him; and we might'suppose his name had not been inserted in the list of those who drew, or that the number drawn had through mistake, or neglect, not been set opposite his name; and further, that from another mistake or neglect, his name had npt been inserted in the general draft, in the tract which, he drew, and it would be a great deal to suppose all this, but here we are asked to do much more; to throw away the evidence that he drew number 1776, and to suppose, without- evidence, that his assignee drew pumber 763, in 1791; and further that after he drew it, and after neglecting to insert his name in that number, in the general draft, and set that- number opposite his name in the comptroller’s list, we must suppose the officers put number 763 back into the wheel, wickedly and corruptly: for that number was found in the wheel in 1794, when it was drawn out by Robert-Parker.

I can appreciate the feelings of the judge, and his sympathy for ’ the defendant, who has unfortunately purchased under a. fraudulent patent, and spent time and labour in improving the land; but a little reflection will show us that he must bear his own loss, or obtain compensation from Hinderliter.

It never can be, that the owner of a tract of land must lose it, because a title to it has been forged, and by that forgery an innocent person has been imposed on. If any person is to apply to the State for redress, it must be the defendant. ■

The officers of the State have done an act which has injured him. The plaintiff’s right is regular and complete; and courts and juries will see that such a right is not to be given away from pity.

Judgment reversed, and a venire facias de novo awarded.  