
    Ezekiel Land et al. vs. Nathan Warner, President of the Board of Trustees of School and School Lands in Township number Three, of Range number Thirteen, East.
    E. and others made a note payable to E., president of the board of trustees in township three, of range thirteen, east, and his successors in office. W., as president of the board of trustees of schools and school lands of township number three, of range number thirteen, east, brought an action on this note against E. and others, and averred in the declaration, that by the description of the payee in the note, was intended “ President of the board of schools and school lands, of township three, of range thirteen, east; ” and that the plaintiff was successor of E. in that office ; the declaration was held on demurrer to be sufficient to entitle W. to maintain the action.
    In error from the circuit court of Jasper county; Hon. Henry Mounger, judge.
    Nathan Warner filed the following declaration in the circuit court, viz.:
    “ Nathan Warner, president of the board of trustees of schools and school land, in township number three, of range number thirteen, east, and the successor in office to Ezekiel Land, former president of said board, by attorneys complains of Ezekiel Land, Joshua Terral and James S. Terral, being in custody, &c. of a plea of trespass on the case on promises. For that whereas the said defendants heretofore, to wit, on the fifth day of August, A. D. 1841, in the county aforesaid, made their certain joint and several promissory note in writing, bearing date the day and year aforesaid, and thereby then and there promised to pay Ezekiel Land, president of the board of trustees in township three, of range thirteen, east, (meaning Ezekiel Land, president of the board of trustees of school and school land in township number three, of range number thirteen, east,) or his successor in office, twelve months after date, one thousand one hundred and ninety-six dollars, for value received, bearing ten per cent, interest per annum until paid, and then and there delivered the said note to the said Ezekiel Land, president as aforesaid; and the said Ezekiel Land, to whom the payment of the said sum of money, in said note was to be made, before the payment of the same on, &c., at, &c., delivered the said note to the plaintiff, president as aforesaid, and successor in office to him, the said Ezekiel Land, former president of said board of trustees as aforesaid, by means,” &c. The declaration contains also a count stated in the ordinary form, and concluded with the following breach, viz.: “Yet the said defendants, not regarding their said several promises and undertakings, have not as yet paid the said sums of money, in said note and last-mentioned count specified, or either or any part thereof to the said plaintiff, president as aforesaid; but to pay the same have hitherto wholly neglected and refused,” &c.
    To this declaration the defendants filed a special demurrer, that it appeared by the declaration, that the note was payable to Ezekiel Land, president of the board of trustees of township three, of range thirteen, east, and it did not appear thereby that Land ever indorsed the note to the plaintiff; or that the note was payable to any person who could assign the same so as to enable the assignee to sue in his own name without indorsement ; or that the note was payable to any person who had by law a successor in office.
    The court below overruled the demurrer — the plaintiff entered a nolle prosequi on the second count; the defendant failed to plead, and the court rendered judgment final by default for the plaintiff; upon which, the defendants sued out this writ of error.
    
      W. Yerger, for plaintiff in error.
    The rule of law is well settled, that no person but the party in whom the legal title to a promissory note is vested, can sue at law; and no action can be maintained upon a note in any name but that of the payee or his indorser, unless in a note payable to A. or bearer.
    Where a party seeks to change this common law rule by virtue of a statute, he must show a compliance with the statute, else the action cannot be maintained. 4 Yerg. 156.
    
      J. Heyfuon, on the same side.
    1. It does not appear that the board, of which plaintiff is president, exists in this state. The court cannot judicially know that township number three, of range thirteen, east, is in the state of Mississippi, there being a township of a corresponding description in an adjoining state, and by consequence it is unknown to the court, whether or not the instrument declared upon could be transferred, by mere delivery, so as to enable the plaintiff to sue in his own name.
    2. It appears prima facie on the face of the declaration, that Ezekiel Land, one of the defendants, is the payee of the note declared upon. This necessarily results from that rule in pleading, that the construction shall always be against the pleader. And also from another rule, that identity of name is prima facie evidence of the identity of person. 1 Chitty on PL 450.
    3. There is a patent ambiguity in the instrument declared upon, which prevents a recovery at law by plaintiff in his own name, unless he becomes indorsee. The instrument, according ta the declaration, is payable to Ezekiel Land, president of the board of trustees, in township three, of range thirteen, east. That'there is an ambiguity in the description of the payee’s official character cannot be doubted; the words “ schools and school lands ” must be supplied either by legal construction or by extrinsic evidence. Now to determine the kind of ambiguity that exists, the question is, is it raised by extrinsic facts, or is it indefinite and equally capable of different constructions and applications ? That it is not raised by extrinsic facts is clear, because we perceive it without any comparison, and that it is indefinite and equally capable of different constructions and applications, is likewise evident. The words “ board of trustees in township three; of range thirteen, east,” may be construed to mean any board of trustees in that township, or they may be applied to any of them. The ambiguity is therefore patent, which is never helped by averments, and therefore the demurrer does not confess the averments in the declaration, made for the purpose of explaining the ambiguity. But it may be asked, do we contend that the note declared upon is void by reason of the uncertainty? We do not; we simply insist that the description of his official character is void by reason of the patent ambiguity in the same. And therefore, that the note is payable to Ezekie Land, and the plaintiff not being his indorsee, cannot recover in his own name. The point for which we contend is embraced in the case in 1 How. 198.
    4 The declaration discloses the fact, that the instrument declared upon is usurious on its face, expressing ten per cent, interest, and not expressing that it was reserved for a bona fide oan of money, notwithstanding which, plaintiff took judgment for the principal and interest thereon, at ten per cent. When the declaration discloses on its face a usurious contract, it is properly reached by demurrer. It would be useless, if not absurd, to plead a fact which the plaintiff admits. And inasmuch as he claims judgment according to the tenor of the instrument, which is contrary to its legal effect, the demurrer on this ground should have been sustained, because it appears on the record that the instrument is misstated, according to its legal effect, and this is fatal on demurrer. 2 Saun. 97.
    5. Plaintiff does not show in his declaration that a transfer of the note was made to him ; he says it was delivered. The mere delivery of a note is not a legal transfer. The bearer of a note payable to bearer, must aver that a transfer was made. Chitty on Bills, 359. And a successor in office should likewise show a transfer.
    6. The breach in the declaration is defective, not being in the disjunctive, according to the contract. In action by assignee, on a contract in the disjunctive, the breach should be in the disjunctive. 1 Chitty on PI. 367.
    Gr. CalJioon, for defendant in error.
    There can be no doubt, I think, of the propriety of the decision of the court below, in overruling the demurrer of the plaintiff in error and awarding judgment against him.
    
      The note is made payable to E. Land, president of the board of trustees, in township three, range thirteen east, or his successor in office. Now the law provides for the creation of, and the courts will officially recognize, one, and but one, board of trustees in that township, and that is the board of trustees of schools and school lands ; and I take it to be clear, that if the trustees were authorized to purchase lands, that they could even take by grant, by the above description. “Purchases are good in many cases by a known name, or by a certain description of the person without either surname or name of baptism, as the wife of J. S.” &e. Co. Litt. 3, b. So a person may take by grant by a wrong name, provided the grant contains anything by which he can be identified; “ as if lands be given to Robert, earl of Pembroke, when his name is Henry,” &c. Ibid. 3, a. The note in this case certainly contains enough to show the official character of the payee; if so it passed to his successor, and no assignment was necessary to vest in him the title to it. But if there was any doubt as to this fact, the plaintiff in error has been kind enough to remove it by the confession arising from his demurrer.
    But the case of Conner et al v. Ruth, 7 How. and the authorities there cited, settle this question. The case of Kencannon v. Carroll, Gov. fyc. 9 Yer. R. 11, is in point. Upon the principles laid down in these cases, the court, it is believed, will supply the words of “ school and school lands,” omitted in the note in this case.
    In another view there can be no doubt, it seems to me, on this subject. If there is an ambiguity in the note, it is not a patent ambiguity relating to the terms or subject-matter of the undertaking; all this is plain ; it was to pay the money; it is at farthest, but a latent ambiguity, relating to the character of the payee, which can be explained by averment and parol proof. See Breckenridge and wife v. Duncan, 2 Marsh. R. 50.
    4 In the case of Jackson ex dem. Dickson et al. v. Stanley, 10 Johns. R. 133, it was held that where a patent was to David Hungerford, when the name was in fact Daniel Hungerford, it was a latent ambiguity which could be explained by parol proof. If such mistake, in case of a grant can be explained, a fortiori can it be explained in a promissory note.
   Mr. Justice Thacher

delivered the opinion of the court.

This was an action of assumpsit instituted in the circuit court of Jasper county.

NathanWarner, the presidentof the board of trustees of schools and school land, in township number three, of range number thirteen, east, and the successor in office of Ezekiel Land, a former president of said board, instituted an action upon a promissory note payable to Ezekiel Land, president of the board of trustees in township three, of range thirteen, east, or his successor in office. The declaration avers that by the description of the p ayee of the note was meant Ezekiel Land, president of the board of trustees of schools and school land, in township number three, of range number thirteen, east, or his successor in office. A demurrer was filed to this declaration, assigning for cause that it does not appear thereby that said Ezekiel Land indorsed the note sued on to the plaintiff in the action, nor that the note was payable to any person who could assign the same so as to enable the assignee to sue in his own name, nor that the note was payable to no person who has by law a successor in office. This demurrer was overruled, and the defendants below declining to plead over, judgment was rendered for the defendants in error.

The only question which can arise in this case, is whether the description of the payee could properly be supplied by averments in the declaration. The description alone séems certain and without ambiguity, that is to say, there is nothing in it that renders its apparent meaning doubtful. If there be any ambiguity, it arises from collateral matter out of the instrument. 1 Sug. on Vend. 181. The ambiguity lies hidden in the character of the person of the payee, and the averment shows that it can, if questioned, be dissolved by extrinsic evidence. Storer v. Freeman, 6 Mass. 440; Webster v. Atkinson, 4 New Hamp. 21; Peisch v. Dickson, 1 Mason, 10.

Judgment affirmed.  