| Ga. | Mar 15, 1858
By the Court.
delivering the opinion.
Were the depositions admissible, as evidence?
They were if the case was one of latent, and not one of patent, ambiguity. Lord Bacon’s maxim is, “ Jtmbiguitas •verborum, latens verificatione suppletur; nam quod ex facto oritur ambiguum, verificatione jacti tollitur.”
And this case was one of latent ambiguity. Lord Bacon says: “patensf (ambiguitasj is that which appears to be ambiguous upon the deed or instrument; latens is that which seemeth certain and without ambiguity, for any thing that appeareth upon the deed or instrument; but there is some collateral matter out of the deed that breedeth the ambiguity.”
In the present case, the grant is plainly a grant to Berry Stephens, an orphan. It is, therefore, a grant upon the face of which, there is nothing ambiguous.
But it turns out, that there was never such a person as Berry Stephens, an orphan. It must be, that some person, not a mere name, was meant. Who then was the person meant by the name? This is the necessary question. Who he was is ambiguous — doubtful.
To this effect are Greene vs. Barnwell, 11 Ga. 283; Henderson vs. Hackney, 16 Ga. 525; same case, at Atlanta, Aug. 1857; Ford vs. Allcorn, at Atlanta, Aug., 1857; Bowens vs. Slaughters, Macon, Jan., 1858; and the Act of 22d December, 1857, declaratory of the law of evidence in such cases as the present.
To the contrary, I think, are Sykes vs. McCrary, 10 Ga. 465; and Yawn vs. Tyson, 15 Ga. 491; and, therefore, they are, in my opinion, wrong.
The decision made by this Court, in this case, when the case was in the form of a bill to correct the grant, went upon the assumption, that there was such a person, as Berry Stephens, an orphan, and that, it was he to whom the grant was really issued. On that assumption, the decision still seems to us right. 17 Ga. 550.
We think then that these depositions ought to have been received. They merely went to show who was the person meant by the name and description “ Berry Stephens, orphan,” there never having been any person in existence bearing that name and description.
The Court having excluded the depositions, it follows, that in our opinion, there ought to be a new trial.
New trial granted.