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 satis*504fied, 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 *505for 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.