10 Johns. 133 | N.Y. Sup. Ct. | 1813
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
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.