Jackson ex dem. Shultze v. Goes

Spencer, J.

The court being unanimously of Opinion that the defendant is entitled to judgment, but, for different reasons,: it is rendered necessary for me to state, very briefly, the grounds of my opinion. .

It is a general and universal rule in this action, that the plaintiff is to recover on the strength of his own title, and unless the defendant is estopped from controverting the plaintiff’s title, he may rest on his possession, and attack the title under which íhe plaintiff claims. The grant under which the lessor deduces his-title was issued under the act to' carry into effect the concurrent resolution and acts of the'legislature: for granthig certain lands, promised to be given as bounty lands; and by reference to those resolutions and acts, it will be seen, that the objects of that bounty were the officers and soldiers serving in the army of the United States, in the line of this state, to wit', Lamb's regiment■ of.artillery and two regiments of infantry. \ The letters patent to Peter Shultze Were,.undoubtedly, intended, to vest in him, as a soldier in one of those regiments, a.titl-fe to the lot,, in question, as a bounty for his services in that.capacity. It is-perfectly clear, that the lessor1 of the plaintiff cannot ho. the Peter, Shultze■ to whom the grant was made,, because the lessor' confessedly was-not a soldier in the revolutionary war. It is equally certain, 'that Peter Shultze, who resided, seven years before .the trial,' at Warreñ, in Herkimer county, could not be entitled to military bounty for revolutionary services • for, according to the-case, he was born about the year 1777, and thfe war terminated in 1783, at which time he was about six years of age. I am of opinion, that, independently of the existence of Peter Shultze of Warren, it would have been-competent for the defendant to show that, the lessor of the plaintiff, Peter Shultze of Rhinebeck, was not, the patentee, and had no title?' merely from the adventitious circumstance of a similarity of pame with the patentee, to recover possession of fhe premises; this opinion, if appears to me, is warranted by the unanimous judgment of the court, in Jackson v. Stanley, (10 Johns. Rep. 133.)

In the subsequent case, of Jackson v. Hart, (12 Johns. Rep. 77.,) though Í took no part in that decision, having been una-' voidably absent when it was, argued) I understand from the opinions expressed, thatf.it'iyas not intended to shake, much less to overrule, the prior decision in Jackson v. Stanley. The identity, of a grantor, in many cases, is a latent ambiguity. The deed is, on the face of it, free from ambiguity ;,the extrinsic or collateral matter out of the instrument, produces the ambiguity. The caseí- commonly put, is where there .are two persons of thé same name, to both of whom the description in the deed is, equally applicable; parol proof is then resorted to) to show to which of the two. the deed was intended to be given. Lord Cheneyes' case (5 Co. Rep. 68.b.) is the earliest case on the subject, and has never, been doúbtedi I cannot think it was necessary for the defendant td prove that there were two persons, in existence, at the time sf the trial, of the name of Peter Shultze, jitorder to be let in to show that the lessor of the plaintiff was not the patentee. There, undoubtedly, was such A man, who in the army of the United States, in the line of this state ; this is proved by the letters patent; then why was it not admissible to the defendant, to show that Peter Shultze of Mhinebeck was a different man ? It seems to me, that the proof that there was another Peter Shultze living at the time of the trial was making no progress in disaffirming the pretension set up by the plaintiff, that his lessor was the patentee, when at clearly appeared that this Peter Shultze could not possibly be the patentee; the only effect of this was to show, what required no proof, that there are many persons in the state of the same Christian and surname.

In this action, whenever the plaintiff introduces a deed conveying the premises to a person of the name of his lessor, it is prima facie evidence that the lessor is the real grantee ; "the burden of disproving this, and repelling the presumption, is thrown on the defendant, and he may prove that the deed was granted to a different person of the same name. If it be not so, then any man who can find a deed on record, to a person of the same name, may use it for very mischievous purposes»' If the lessor of the plaintiff is not the patentee, then he has no title to the lot; and may not the defendant who is in possession, and can protect himself against every one but the true owner, show all the necessary facts to make out that the lessor has no title to the premises ? Such proof does not vary or contradict the deed, but is perfectly consistent with it. It admits the grant to have been correct, but shows that the lessor Is not what he assumes to be, the person to whom it was made, and that he has no right, not being the patentee, to'turn the defendant out of possession.

Without being influenced at all by the evidence that there was another Peter Shultze in existence at the time of the trial, or a few years before, my opinion proceeds on the ground that the lessor of the plaintiff is proved not to be the patentee, and I hold that proof to have been correctly given»