
    Jackson, ex dem. Dickson and others, against Stanley.
    NEWYORK,
    May, 1813
    A patent for wa™llgranted dier, without words of <ieidentify*’ the ^^¡on Gf eí jectment, the lessors ekini® ed the land, as ljj'fnferfo7d[el deceased sol.jigii flllfiffflfi to be the patent.ee intend» and the defendant claimed under the heir of a of the name of jDavid
    
    And an act of the legislature was passed, declaring that Daniel Hungerford, the ancestor of the lessors, was the patentee intended, and that the land should be vested in him, in the same manner as if he had been named in the patent; it was held that if a title had legally vested under the patent, it could not be devested by the legislature; but the patent being held void, by reason of the misnomer, so that the heirs of Daniel Hungerford could not take under it, the land remained in the state, and it being proved that the ancestor of the lessors was the real patentee intended, the act was to be deemed a legislative grant to him, supplying the place of a patent.
    Parol evidence was held admissible to ascertain the patentee, and show the mistake, it being a latent ambiguity.
    Where a person enters upon a military lot, under colour of title by descent, and leases it, the defendant is not entitled to compensation for his improvements under the act. (Sess. 26. c. 88.)
    THIS was an action of ejectment brought to recover lot No. 90. in the 25th township in the military tract now in the town of Cincinnatus, and was tried at the Courtlandt circuit, the 11th of Scpiember, 1812, before Mr. Justice Pan Ness.
    
    The lessors of the plaintiff were the heirs at law of Daniel Hungerford, and to support their title produced a patent from the people of the state to David Hungerford, a soldier, for the premises in question, which patent passed the secretary’s office v in 1191. The lessors also gave in evidence an act of the legislature, passed April 10,1805, entitled “An act for the relief of Daniel Hungerford.” It recited that whereas it appeared that C) v A A letters patent had issued in the name of David Hungerford for lot No. 90. in Cincinnatus, which, grant was intended for Daniel Hungerford; therefore, it was thereby enacted, &c. “that the said letters patent shall be deemed to have vested the said lot in the said Daniel Hungerford, in the same manner as if such letters patent had been issued in the name of said Daniel.” The lessors also produced the following extract from the balloting-book kept in the office of the secretary of state:
    “ The dead of the several regiments, Names and rank. H. Begt. Company. Towns. Lot. Acres. Hungerford, David. First. M‘Kean's. 25. 90. 500.”
    To this was subjoined the certificate of the secretary, that it was a true extract from the balloting-book, kept by the commissioners of the land-office, and that no other person of the name of Hungerford was to be found in the book. Samuel Anderson, a witness for the plaintiff, testified, that he was a soldier in Captain McKean’s company, in the first regiment, and lived in the place where the company was first raised, which was in Cherry Valley, in Otsego county, on the Mohawk, where he enlisted; that he knew Daniel Hungerford, the father of the lessors, who lived in the same place, perfectly well; that Daniel H. enlisted and served in the same company, until the autumn, or early in the winter, of 1778, when he died at the Saratoga barracks; that he was the only man of the name of Hungerford ever in that company ; the witness knew no other person of that name in the New-York line, and had there been any other person of the name of Hungerford, in the first regiment, he should certainly have known him.
    Major James Thompson also testified, that he first enlisted as a private in M‘Kean’s company, and served in it until after M‘Kean died; that he knew Daniel Hungerford perfectly well; that Daniel H. served in McKean’s company until early in the winter of 1778, when he died at the Saratoga barracks; that he knew every man in the first regiment; and there was no person of the name of David Hungerford in McKean’s company, or in that regiment.
    The defendant’s counsel objected to any evidence that went to contradict or vary the patent; and submitted to the judge whether it was competent to the legislature, after the patent had issued, to pass an act vesting the title to the land in Daniel Hungerford; and the point was reserved, with liberty to the defendant to move for a new trial.
    The defendant claimed title under David Hungerford, and proved, by his parents, that he enlisted in the army of the United-Slates, during the revolutionary war, and was taken prisoner, and after his release, he served in the New-York line, until the end of the war, when he received his discharge; but it did not appear in what company or regiment he served. In 1785, he married at his father’s house in Bristol, in the state of Connecticut, and soon after went to sea, and never returned. His parents heard that he died in the island of Jersey. He left a daughter, an only child, who was married to Nathan Stanley, who entered into possession, in right of his wife, and afterwards leased the premises to the defendant.
    The jury, under the direction of the judge, found a verdict for the plaintiff. The defendant submitted to the judge whether he was not entitled to be paid for his improvements, under the act of the 5th of April, 1803, (sess. 26. c. 88.) and the point was als© reserved for the opinion of the court.
    
      Sill, for the defendant, contended,
    that from the evidence it appeared that David Hungerford was a person entitled to bounty land under the acts of the legislature. The patent having issued, for a good consideration, it vested a title in the patentee named, which cannot be defeated by any evidence extrinsic, or dehors the patent. The ballot-book was not required, or authorized by any statute; and the minute in that book cannot be allowed to defeat or alter the patent.
    But admitting the evidence of the ballot-book, he contended, that there being a mistake in the Christian name, it vitiated the patent; and as nothing passed to Daniel Hungerford, it must enure to David Hungerford, who was entitled to bounty land.* And before any claim was made by the heirs of Daniel Hunger-ford, an actual settlement was made on the land in right of the daughter and heir of David Hungerford, and the defendant is to be considered as a purchaser.
    Again, was it competent to the legislature to devest the interest of David Hungerford ? In England there are certain prescribed rules of proceeding in obtaining a private act of parliament, intended io guard against surprise, or mistake, which are not observed here.
      
       
      The act, in the present case, was more of a judicial than a Iegislative act. By the constitution the senate and assembly have a legislative power only. They cannot take the property of A. and give itto B. unless some great public interest imperiously1 demands it.
    
    The defendant is entitled, at least, to a compensation for the improvements. There was an actual lease, and if for life, the defendantis a purchaser, under colour of title, and is, therefore, within the provision of the act. (Sess. 26. c. 88.)
    
      Seely, contra, insisted,
    that parol evidence was admissible to show a mistake in the name of the grantee. Such evidence had been admitted in the case of a will;  and there was no good reason why the same rule should not apply to a grant. Lord Coke is of °P™on that a grant may be good, though there is a mistake in the Christian name. If, then, the evidence is admissible to show the person intended, and who is to take, there is an end to the controversy between the parties.
    As to compensation for the improvements made on the land, . the statute applies only to real and bona fide purchasers who may be supposed to be ignorant of the original source of the title. The defendant is not such a purchaser, and Stanley, the lessor, did not claim by purchase.
    
      
      
        Cro. Jael. 558. Cro. Eliz. 328.Co. Litt. 3. a. Co. 55.
    
    
      
      
         Cruise'e Dig. tit. 35. & 54.
    
    
      
      
         7 Johns. Rep. 477.2 Cranch 272.
    
    
      
      
        Cruise’s Dig. tit. 32 & 44-47.
    
    
      
      
        Pow. on Dev. 477. 6 Term Rep. 671. 2 Eq. Cas. Abr. 415, 416.
    
   Kent, Ch. J.

delivered the opinion of the court. The patent which issued in the name of David Hungerford was undoubtedly intended for the soldier, by the name of Hungerford, (then dead,) who belonged to M‘Kean,s company, in the first Nerv-York regiment. This intention is manifest from the balloting-bodk in the secretary’s office, and from the premises, being a military lot and part of the lands set apart by law for the two regiments belonging to this state, and from the further fact that by the provision in the act of the 6th of April, 1790, the lots were to be balloted for, and the patents to issue in pursuance thereof, and in the name of the original soldier. If Daniel Hungerford was the soldier who belonged to that company and regiment, and no person of the. name of David Hungerford was a soldier in that regiment, there must have been a misnomer in the Christian name of the patentee. I think the evidence taken at the trial establishes the mistake; and the question is, whether that evidence was admissible, and if so, what is the legal effect of it? Here is no ambiguity on the face of the patent, but it is a latent ambiguity, and, according to the general rule, the parties may go into extrinsic evidence tó ascertain the grantee, and clear up the mistake in the soldier’s name. Parol evidence has been admitted, in the case of a will, to ascertain the person, when two were of the same name, or when there had been a mistake of the Christian name of the devisee. (Cheyney’s Case, 5 Co. 68. Ulrich v. Litchfield, 2 Atk. 373. Parsons v. Parsons, 1 Ves. jun. 266. Thomas v. Thomas, 6 Term Rep. 671.) But with respect to deeds and grants, the old general rale seems to have been; that an omission, or mistake, of the Christian name of the grantee rendered the grant void. This was the opinion of the judges in the case of Humble v. Glover; (Cro. Eliz, 328.) and it is stated by Lord Baton, (Maxims$ 107.) that if one grant land to I. $., son and heir of G, S., and it be true that he is son and heir of G. S, but his name is Thomas¿ it is a void grant. Lord Coke, however, holds (Co. Litt. 3. a.) that a grant may sometimes be good, though the grantee’s name of baptism be mistaken. Thus, if lands be given to Robert, Earl of Pembroke, when his name is Henry, or to George, Bishop of Norwich, when his name is John, the grant is still good, because there can be but one of that name arid dignity. If, then, the patent in this case had designated the Hungerford intended, by specifying the regiment and company to which he belonged, at the lime of his death, it might have been good, as being equally susceptible of being reduced to certainty. But the patent adds no description, or demonstration to the name of the patentee. It is simply a patent of the lot to David Hungerford ; and according to the rule which has been mentioned, the heirs of Daniel Hungerford cannot take under that patent, because their ancestor is hot the patentee named. In all the cases which I have seen, where there was a misnomer, there was some description connected with the ñamé; arid thefe was no other person who set up a title in competition, under the erroneous name; but here the defendant claims under one David Hungerford, and contends that he was the grantee, and a soldier in the line of this state, though the proof of the fact is extremely weak, and nti proof was offered that he was a soldier in McKean’s company, in the first regiment, or that he belonged to either of the two regiments of infantry for the use of whom the military bounty lands were appropriated. The verdict is to be considered as establishing the fact that Daniel was the soldier who served, and must have been the sob dier intended,

The grant, then, is either void by reason of the misnomer, of the parol proof supplies and corrects the mistake in the Christian of the soldier intended, and, in either case, the lessors of the plaintiff are entitled to recover. We do not go upon the ground that the act of the legislature could devest a right legally acquired under the patent. It could not. But the patent gave no title to the person under whom the defendant holds, because he was not the patentee. The ancestor of the lessors of the plaintiff is shown by the proof, and found by the verdict, to be the patentee intended; and if the mistake in his Christian name rendered the patent void, the title to the lot remained in the state until the act of the legislature, which is to be considered in the light of a legislative grant, and supplying the place of a patent in tiie ordinary form. The competency of the legislature to alienate their lands, by statute, is not to be questioned.

2. The defendant does not come within the act of the 5th of April, 1803, sess. 26. c. 88. entitling, in certain cases, the tenant in possession of the military lands to payment for his improvements. The defendant is a lessee under Stanley, who entered upon the lot claiming it in right of his wife, who was the heir of one David Hungerford,. Here was no entry and settlement under colour of purchase, but under colour of title by descent.

The motion for a new trial is accordingly denied.

Motion denied.  