2 Originally the common-law method of conveying interests not lying in livery, grants are now by statute in England and most States, the customary form of conveyance of corporeals in possession. - Ed.
4 See N. Y. R. P. L., §§ 207, 208. The express requirement for a seal to a grant, contained in 1 R. S. 738, § 137, is omitted here, and, as will be seen from the report of the commissioners, purposely. It would seem, however, from the forms in § 223, R. P. L., that grants are still to be made by deed. See for old rule, Jackson v. Wood, 12 Johns. 73. An instrument without seal will carry the equitable title, at least. Todd v. Eighmie, 4 App. Div. (N. Y. Supreme Ct.) 9. - Ed.
5 No special cases are here given to illustrate the subject of signing, acknowledging, witnessing or registering a deed. - Ed.
6 See under part V. supra. - Ed.
In 1845 another patent was issued for the same premises and on the same certificate to one Samuel M. Coleman as assignee of "Samuel Johnson." Coleman conveyed part of the tract to defendant who is in possession. Judgment for plaintiff. Defendant appeals.
Scott, J. * * * The ground, on which the defendant repelled the plaintiff's right to a recovery, was that Johnson was a fictitious person; that there was no such man in being, and therefore the patent was void, and the plaintiff could not derive any title from it or the patentee. There is no doubt that a patent issued to a person not in existence is void. This was the view taken of this case when it was formerly here. But now we have more light upon it, and although we adhere to the opinion then expressed, we doubt whether it is applicable to the case as it is now presented. The only theory that will solve the question involved in this litigation (and we think there is sufficient evidence to put it to a jury) is, that Samuel Johnson is an assumed name of James Coleman, and not a fictitious person. If we regard Coleman as usurping the name of Johnson when it suited his purposes, we have a clue by which we may be guided to the justice of this case. We have no doubt that this was the light in which this matter was viewed in the court below, but as the case was tried by a jury we do not conceive that the language of the instruction was sufficiently pointed to direct their attention to the matter really in issue. If James Coleman used the name of Samuel Johnson to designate himself, when he thought proper, and made the entry in the name of Samuel Johnson for himself, merely using that name as he would the one by which he was usually known, and endorsed it in the name of Samuel Johnson with the same view, then the transaction is to be regarded as though James Coleman had used instead of the name "Samuel Johnson" the name of "James Coleman." So the patent to Samuel Johnson is to be regarded as to James Coleman and not to a fictitious person. I knew an individual once, who was sued in an action in which heavy damages were claimed, and during its pendency he entered a great quantity of land in his name reversed or spell backwards. Now no one supposed that, if a judgment had gone against him, that the title had not passed from the United States so that the land would have been subject to the claim of the creditor. So we suppose it is competent to the party here to prove that James Coleman was Samuel Johnson or James Coleman, just as it suited his purposes; that he was a man who used two names; that to effect his ends he endeavored to make it appear that he was two different persons. It matters not whether it was generally known that he went by two names or not. The law is the same, though he was known by one name only, as though he was known by both. If a man signs a bond by a name by which he was never called or known, or which he had never used before, he would be bound by it. Carpenter v. Williams, 28 Mo. 460. * * * This case, then, depends on facts to be determined by a jury. These facts are whether James Coleman and Samuel Johnson were not the same identical person, and the name Samuel Johnson was assumed by Coleman to carry out his fraudulent designs. If these facts are found, the plaintiff will be entitled to recover If, on the other hand, the jury believe from the evidence that the government, in issuing the patent, intended it for another person distinct and separate from James Coleman, and that there was no such person ever in existence, then, in the nature of things, no title could pass by the patent.
Reversed and remanded.
(2.) Real Property to be Conveyed.
7 Connecticut, 250. - 1828.
Ejectment to recover an undivided fifth-part of certain land. Roger Dart devised the demanded premises to his sons William and Solomon, their heirs and assigns forever, upon certain conditions and with the following limitation: "My will further is that my sons shall not either of them sell or dispose of the lands, which I have herein given to each of them, from their lawful male issue; and in case either of my sons should die without lawful male issue, in such case, his land hereby given shall revert, and become the estate of my surviving sons or their male issue." Solomon entered on the land and in 1794, together with his son Solomon, Jr., quitclaimed to defendants. Later by a separate deed his other son, Caleb (the plaintiff), quitclaimed to the same parties. Solomon, Senior, died in 1825.
The judge charged the jury that Solomon, Senior, took an estate in tail male and not a life-estate. That title did not vest in Caleb till his father's death, and that plaintiff is not estopped by his deed.
Peters, J. - This case presents three questions. 1. What estate did Solomon Dart the elder take under this devise? 2. What estate passed from the plaintiff to the releasees? 3. Is the plain tiff estopped by his deed to them?