
    Jackson, ex dem. Houseman, against Hart.
    A patent not void, but which has been issued by mistake; or on an insufficient suggestion, can only be avoid, ed by set. /¿z.r or other proceeding, for that purpose, in chancery.
    It cannot be impeached in a collateral action ; as by showing that the patentee intended, was mn’^nd^of a different name mentioned patent*.
    Where a grant has becta made to a. B., but A. G. was the grantee intended, this is not such a ity^as^if1 admission of* §ence.eV1'
    This was an action oS ejectment, for lot - number 26, in the township of Camillas, in the cógnty of Onondaga.
    
    The cause was tried before Mr. Justice Platt, at the Onondaga circuit, in June, 1814.
    The plaintiff gave in evidence letters-patent for the lot in question, dated the 13th September, 1790, to George Houseman, one of the lessors. . - .
    The defendant offered in evidence an extract from the “ Balloting Book” ¡filed by the commissioners of the land-office, in the office of the secretary of state, concerning military bounty lands, in the county of Onondaga, in these words: “ The dead of the several regiments.” -
    “ Names and Ráhks. Regt. Company. Township. Lots."Acres. Oates of Patents. Houseman, George. first. WendeWs 5 26 500 September 13, 1790.”
    A witness was also offered to prove the- extract to be a true r copy from the balloting book, as compared by himself.
    _ - vy, 1 , , ihe defendant further ottered to prove, by paroi, that no such man as George Houseman ever enlisted or served in Wendell’s company, in the first New-York regiment, in the revolutiotiary war; and also, that a man by the name of George Hosmer did enlist in Wendell’s company, in the first regiment of the New-York line, during the war, and served in that company, until his death, which happened before the terminal tian of the war; and that/the patent was issued in the name of George Houseman, by mistake, and thctt George Hosmer was the soldier entitled to the patent, arid; was intended, thereby, and that no other military lot had been balloted for, or granted to, or in the name of George Houseman or George Hosmer; and that George Hosmer, at his decease", left lawful issue, under whom the defendant derived -title’ to the premises in "question. , ■ . , ' - '
    It Was admitted that Camilluswns the fifth military township ; and the'defendant’s counsel admitted that there was á man who, served as a soldier, ,ih the New-York levies, by ,the name of George Houseman. The counsel for the plaintiff objected to the evidence thus offered on ' the part óf the defendant,, and it was overruled by the judge. ’ " ..
    The defendant theri offered the extract from the balloting book,, and the paroi evidence that it' was a true extract, as evidence, that George Houseman, the patentee, died in service ; and insisted,-that if this evidence was admitted; the plaintiff as the -demise in the declaration ^as laid in f 810, ought to .show a title, in, some other of the lessors. .
    This evidence was also objected to by the plaintiff’s.counsel, and overruled by the judge, under whose direction the jury found a verdict-for the plaintiff,
    A motion was made, on the part of the defendant, to set aside the verdict, and-for a new trial. . .
    
      Henry, for the defendant,
    contended,, that -it was competent tp the-defendant to show a mistake-in the patent, or that no person, of the, name of ,the patentee, ever was in . existence capable to take ; and that, therefore, the giant was void.
    
    r_fhe evidence offered at the trial could not have- been re- ■ - - . ' , ■ jected pn the ground of its being- an extract from the ballpt book of the commissioners, for it was necessary for the commissioners of the land-office, pursuant to the act of the 6th April, 1790,
      
       to decide on the .person entitled to'thp bounty land; and this book is the evidence of their decision on- that,point..It is true, nothing- is Said in the statute-about a ballot book, but this book;is a collection of thp-decisions of the commissioners, as to the persons entitled to the lands.
    
      It is no answer to say that there was a George Houseman in the New-York levies,
      
       for the levies were not entitled to bounty lands, under the act. They were to be rewarded for.their services in a different way. Soldiers in the line of this state, serving in the army of the United States, alone were entitled to the military bounty lands.
    Again, if George Houseman is dead, the plaintiff cannot maintain this action, unless he can show a title under the heirs and legal representatives of the deceased soldier ; but they are not made lessors. And whether the patentee was dead or not, was a matter of fact for the jury to decide.
    
      Sill, contra,
    insisted that the patent Was conclusive in this ease, and no paroi evidence could be received against it. There is an apparent contradiction between the case of Jackson v. Stanley, and the decision of the court in the case of Jackson, ex dem Mancius, v. Lawton,
      
       which contains the true doctrine on this subject, that the only way of avoiding a patent is by scire facias, or process in chancery. In the former case, Kent, Ch. J., to show that the difference in the Christian, name of the patentee being a latent ambiguity, extrinsic. evidence might be resorted to, to explain the mistake, relies on cases decided in regard to wills or devises. Without adverting to the difference between a will and a patent, we contend, that the cases cited would not authorize an alteration in a will, like the one contended for in the present case, and are, therefore, not applicable. They are two classes of cases : ■, , ,
    1. Where there are two persons of the" same name ; and,
    2. Where, for greater certainty,"the description of the person controls, and the name is rejected.
    In class the first, are the cases in 5 Co. 68., 2 Atk. 373. 239., and 3 Atk. 258. In the second class of cases, are to be found 6 Term Rep. 671. 2 Vesey, 216. 2 Equ. Cas. Abr. 245. Ambler, 175.
    
    There is another class of cases, where a person has a nickname, or name by reputation, where the party may plead that he is as well known by that as by his true name. The two classes of cases are perfectly reconcilable with the statute of frauds. They do not contradict the will. The attempt, in the present case, is not to explain or to render the description of the person certain,' but to,.substitute1 a new and á different' ■ naine.
    Great latitude has. been allowed as to letting in evidence, in'" regard to wills, so as to effectuate the intent of the testator.' But, in regard to patents, it-is presumed that the ’court would hardly go the same length, especially when 'the impolicy and dangerous tendency,: of admitting paroi evidence to explain • written instruments is generally acknowledged. " ff."
    Ás to. the admissibility'of the books, of the commissioners of' the land-office;: no doubt,' that' the' death of a person may be' proved in a court b'y hearsay testimony, orTy registers kept' b'y: persons appointed to récord births' and deaths'. ’. But, where hekrsay evidence is given, the other'party has a right to cross*’ /examine.' The'commissioners' of the land.ofB.ee were .not a " /Court,, nor were they directed or authorized to keCp siiph books; which cannot, therefore, be .evideWe -of themsely'esff The* coihmissioners had no power to decide'on’thé fact' of the death ' of the soldier, nor’did they pretend ió exercise any such powers:; for they granted patents indiscriminately ‘ to all whom they supposed entitled to lands, without inquiry into the fact of their being alive or dead. These ballot books aré extremely loose. ánd inaccurate, and ndt entitled to the distinction of being re - ceived: as. evidence. ' , i. .• - •■ .- • " '
    Again, it is said that Houseman could not take the land grant-’ ed, because'he was not a soldier in ’ the line "of the army;' Bufc’U if the patent is conclusive as to the. nkme or person ’of the patentee, it is equally so as to this point. Besides, this is a question which cannot "be examined' in-this action. If the legislature, who aré the sole dispensers of their own bounty, have : thought proper togrant land' to any person, his title under the-; patent 'cannot be disturbed, as long ás the patent remains in-force. If his title' is to be impeached, the;patent must be avoided by a scire facias, or a suit in ecpiity. . ■ • - - '
    
      Henry, in reply.
    We’ do not mean to contend-that’ it is com-potent to show, by paroi, that the fíame of the patentee is mistaken. The "• question is, whether.! the patent'is not' Void, on the ground that- there was" no such'person as the one named in the patent, in existence, at the time, capable of taking,'or,!ih,other words, that the patentee is a nonentity; for ho W is a scire fa* cias to issue to, or a bill i-n chancery be' filed against, amonenfcity? We had only to prove the fact of non-existence. We offered to show that there never was a person of the name of George Houseman in the line of the army, or any person in existence to whom the patent in question could issue.
    Though the acts of the commissioners were not judicial, they were of that nature as rendered them, of necessity, evidence. Though a person was a soldier in the line of the army, it did not follow, of course, that he was entitled to the bounty-land, for he may have been a deserter. The commissioners having power to determine or designate the persons entitled to these bounty lands, must necessarily have the power to decide on the Identity of the person. The description or designation of the person entitled, was the substratum of the grant, for without such a designation of the person, no patent could issue. Suppose there had been two persons of the name of George Houseman, one alive and the other dead, the commissioners must have described the persons of each, and thé particular lot of land to which each was entitled. And this description or designation of the persons would, necessarily, be evidence, otherwise, it could not be known to which of the two lots they were respectively entitled.
    No doubt, that where a patent can be repealed, the proper course is to issue a scire facias for the purpose. But where a patent has issued to a person not in being, it is, ipso facto, null and void. There is no need of any process to repeal it.
    
      
      
         See Jackson, ex dem. Dickson, v. Stanley, 10 Johns. Rep. 133.
      
    
    
      
      
        2 Greenleaf's ed. Laws, 332. 13 sess. c. 59. s. 6.
    
    
      
       1 Greenleaf's ed. Laws, 40. 48.
      
    
    
      
      
         10 Johns. Rep. 23.
    
    
      
      
         1 Vesey, 231. 266.
      
    
   Platt, J.

It is a first principle in the law of tenures that the state is the only original source of titles; and that the state possesses a sovereign right to grant lands to whom it pleases; with or without consideration.

These grants may be made either by statute, or by patent, under the great seal, or by any public functionary, designated by law for that purpose.

In this case, the public agents who were entrusted with the great seal for that purpose, have made a grant, of record, in the most solemn form, to George Houseman, a real person, capable of accepting the grant.

On the part of the defendant, it is attempted to defeat the patent, by showing that the bounty of the state was misapplied in making the grant to George Houseman, who served only as a soldier "in" the" levies,, whereas- it ought to have been made to George Hosmer, who was a soldier in the line of this state, du. ring the war. .' ■. - ■

It is admitted that here are two'distinct names, and two real persons, corresponding with them. , . ■ . ■ -

. * I think: it is not the pro vince of this court to inquire into the cause or motive which, induced the state to make this grant; the terms of the patent, being general, without any consideration expressed, and containing- no reference to military services. ■We have no more right to make this inquiry in the case of a patent, than in* Caséí.bf á grant -by express and positive statute.

" It is true, that the. state inay be deceived, or a grant may be made through mistake, but the plain remedy is, to vacate such grant by scire facias. There is no obstacle to such a proceeding in this case, as the counsel for the defendant seemed to imagine. George Houseman is admitted to. have been a real person, .apd, therefore, cotild be summoned on scire facias, or, if he be dead, as is pretended,, he hás heirs, or, if no heirs, then thq lands have escheated. •|

- But if the state have made an improvident or mistaken grant," the state only can take advantage" of it. If the state waives its right to vacate the patent, it seems to me altogether inadmissible that an individual Xvho happens to be in possession of the land, can: exercise the sovereign power of the government, in questioning the validity of this patent, for his own private benefit.

In the case of Jackson, ex dem. Dickson and others, v. Stanley, (10 Johns. Rep. 133.) this Court decidéd that it was competent for the plaintiff to prove, by paroi evidence, and the ballot book, that a -patent to David Hungerford was intended for Daniel Hungerford. The ground: of that decision seems to be, that “ the omission or mistake of the Christian name of the grantee, rendered ¡the grant void.’ -;- (Humble v. Glover, Cro. Eliz. 328.) And. that patent being void, ' it was competent for the legislature in that case, by statute, to grant die same land to Daniel Hungerford.

This'case is distinguishable from that above cited, in two features, X. The alleged' mistake here is in the surname, and riot. píérely in-- the Christian- ñame of "the grantee; 2. 'The state has riot, in this case, interfered to assert its right by-a new legisla-. Utegrant to-the- opposite elaiftiaiit. ' f-.v-

I think the old remedy of summoning the patentee before a judicial tribunal, for the direct and express purpose of showing cause why the grant should not be vacated, on the ground of fraud or mistake, is wisest and safest, if not the only constitutional mode of vacating such a grant. But whether the .legislature can dispense with all the forms of judicial proceedings, and arbitrarily, upon an ex parte application, defeat a patent by a legislative act, need not to be considered in this casé, because the legislature have not attempted to assert the right of the state in. that mode. If, however, this case is not distinguishable, in its essential features, from the case of Jackson v. Stanley, (10 Johns. Rep. 133.) 1 repose myself with entire satisfaction on the unanimous decision of this court, in the case of Jackson, ex dem. Mancius, v. Lawton, (10 Johns. Rep. 23.) and the author!-' ties there cited. In that case-, the plaintiff claimed under a patent to George Mancius, for lot No. 128, in the East Cayuga reservation, dated the 28th of October, 1811, The defendant, Lawton, offered to give in evidence a patent to Stephen Allen, for the same lot, bearing date the 5th of March, 1312, and also offered to prove that Allen was the occupant of the land, having, by law, the preemptive right; that he had paid the appraised valué of the land, with interest, to the state; and that the first patent (to Mancius) was issued by mistake, which evidence was overruled at the trial, and this court sanctioned that decision. Chief Justice Kent, in delivering the opinion, of the court in that case, says, “ The patent granted to the lessors of the plaintiff being the elder patent, is the highest evidence of title. As long as it remains in force, it is conclusive as against a junior patent.” “ Nor can the court take notice of any equitable claim upon the govérnment which a third person might have had in respect to the lands in question.” “If the elder patent was issued by mistake, or upon false suggestions, it is voidable only; and unless letters patépt are absolutely void on the face- of them, or the issuing them was without authority, or was prohibited by statute, they can only be avoided in a regular course of pleading, in which the fraud, irregularity, or mistake, is directly put in issue.” “ The regular tribunal for this purpose, is chancery, founded on a proceeding by scire facias, or by bill or information: It would be against precedent, and of dangerous consequences to titles; to permit letters patent (which %e solemn grants of record) to be impeached collaterally; by paroi proof, in this action.’’ : ■’

‘ The rule is indisputable, that paroi, evidence cannot be received to contradict or vary a written instrument, of clear, certain, and unequivocal import. Á latent ambiguity may be explained by paroi proof, in order to elucidate and explain written words of doubtful sense ; as if a grant be made to John Smith, arid there be several persons of that name, paroi evidence is admissible, to explain which of the persons bearing the same name was intended. So, paroi evidence would be admissible to prove, that George Houseman and George Hosmer kre the same person. But ccrtainly.it is not explaining a latent ambiguity, to prove that a grant to George Houseman, a. real person, was intended for another person of the'name of George Hosmer. Such an extension of the rule would destroy 'the security of written conveyances, If a different person may be substituted by paroi proof, for the person certainly described as grantee in a deed, .there is no other essential part of the deed which might not be altered in the sainé way. Such a relaxation in the established rules of evidence, would defeat the spirit arid policy of the statute of frauds, which requires; conveyances of land to tie in writing. Arid oui "bona? It is not contended that this patent enures to the benefit of George Hosmer. The defendant is confessedly without any title to the land in question. To impeach st public grant' of record, m-'this collateral manner, operates as afi unfair-surprise üpoh the patentee; it would supersede and abolish the safe and easy remedy by scire faciasl which is sanctioned by the wisdom and experience of 'ages) and,, in my judgrnent, it would be a dangerous innovation) ■ ' .

I am, therefore, of opinion, that the plaintiff is entitled t& judgment..' ' ‘ h

Yates,: J. mid Van Ness, j. were of the same opinion,

Spenceh, j. not having heard the argument in the cause,. gave no opinion.- : .

Thompson, Ch. J.

The ‘defendant7 is-in possession under a title derived from George Hosmer, and-is not, therefore,, to be considered as standing on the footing of a mere naked oeeupant. And if the evidence on his part was admissible, it would show, conclusively, not only that George Houseman, who claims to be the patentee, was not the person intended, but that George Hosmer was the real patentee. It is not necessary, to establish the latter branch of the alternative; for. the defendant may rest his defence upon showing a title out of the lessor of the plaintiff; and if he can show that the patent was void, or that the person who claims to be the patentee was not the person intended, it will be sufficient. v

The evidence offered was not for the purpose of contradicting the patent, but to explain a latent ambiguity, and identify the patentee. It is admitted that the premises are a part of the land set apart as bounty lands for the two regiments belonging to this state; and it. was not pretended, in the .argument, this George Houseman, came within , this description of persons. Had the patent described the patentee, as a soldier in Captain Wendell’s company, in the first regiment, it would have been necessary for Houseman to have proved that he answered that description, ■ although it would have been extrinsic evidence. And when the patent is silent as to description of the patentee, I can see no objection to the admission of extrinsic evidence to identify the patentee, any more than there, would be to testimony to identify and locate the land granted. This is not evidence repugnant to or contradicting the patent. Ñor is it, in fact, evidence which is necessarily to make void the patent, but only shows, that he who sets himself up as the paten tee .'is aft impostor. Can it be, that any man. has a right to go to the secretary’s office* and if he can find a patent issued to a person of the same name which he bears, that he can avail himself of such patent, and that his identity is not to be questioned? It is perfectly immaterial whether the opposition to his claim comes from one of the same name with the patentee, or from any other person who has a'right to dispute his title; and that the defendant in ejectment has a right to show that the plaintiff has no title, cannot be denied.

Suppose it could have been shown that George Houseman, who claims the benefit of this patent, was a. British soldier during the whole revolutionary war, might not this have been done? That may be said to be an extreme case. But if the principle be sound upon which the testimony offered was. re-* jected, it would apply to the case I have put. For it would he nothing more than inquiring whether the lessor of the plaintiff was, in fact and in truth, the patentee, or person he pretended to be. - 1

From the best-consideration which I have been able to give this case, ! cannot take it out of the principles which governed the decision in Jackson v. Stanley, (10 Johns. Rep. 136.) The defendant there claimed title under David Hungerford, being the name of th$ patentee. But upon the trial evidence was admitted to show that it Was not David Hungerford who was intended as the patentee; and the competency of such evidence was sanctioned by the opinion of the whole court. Indeed, the very same evidence, to wit, the balloting book, which was decided in that case to be good evidence, has been here rejected. This evidence was admitted in that case for the express purpose of showing that the patent was void, because there was no such person as David Hungerford, who was entitled" to military lands, but that Daniel Hungerford was the person' really intended. If this was not the principle which governed that case, I know not . upon, what ground, the plaintiff could recover. If, under the patent, the title- was. vested in David Hungerford, it- was not, nor could be, pretended that-the" legislature could devest him of his title, and give it to Daniel Hungerford, the person really intended: as the patentee. The patent to David must first be got rid "of, before the act of the legislature could take effect, and so it was considered" by the court. Notwithstanding there was a person;'of the same name with the patentee:, who claimed title to the land, the court said the patent was void, because he was not the person intended, and that it was competent to show this by paroi■ evidence;. and if such evidence is admissible, that which was offered in the case now before us was conclusive to show that George Houseman was not the person intended as patentee. We'must, at all events, for the purposes of the present motion, assume that the proof would have established that fact.

I am persuaded, that no solid distinction can, in principle, be made between this case and that of Jackson v. Stanley. The-great question, -in both cases, is whether /jarof evidence-is ad-, missible to show that the person claiming to be the patentee was not the person intended. If there be any substantial difference in the two cases, it is much in favour of the defendant in this case; because, the mistake there was in the Christian name, and it was admitted, on all hands, that Daniel Hungerford, who was the person really intended* could not take under that patent. But in the present case, the mistake is in the surname, and it may well be questioned whether George Hosmer inay not hold the'title under this patent. The law knows only of one Christian name, but a person may have divers surnames, and it would have been competent for the defendant to have shown that George Hosmer was known also by the name of George Houseman. (5 Johns. Rep. 84. Co. Lit. 3. a. 15 Vin. tit. Misnomer, C. 5, 6. 413.) And it is expressly laid down as a rule on this subject, that in grants and obligations the mistake of the surname doth hot vitiate, because there is no repugnancy that a person should have two surnames. It is, however, unnecessary to say that the title vested in George Hosmer; it is sufficient for the defendant to show that it did not vest in George Houseman; and that the testimony offered, to establish that fact, was admissible, is, in my opinion, settled in the case of Jackson v. Stanley. I ain, accordingly, of opinion that a new trial ought to be granted.

Judgment for the plaintiff.  