Jackson ex dem. Miner v. Boneham — 15 Johns. 226

Majority

p. 226

Jackson, ex dem. Miner and Miner, against Boneham.

Headnote

ofTn ejectment he?ra ofbjfoses ptoh'itifl'sthe claimed under a patent issued to Moses Min. 7t6í* a soldier in ’the ¿Veroing the revoluwaTheicTtiíat the patent was prima facie evidence of the service of the soldier mentioned in it, and as it did notappearthat there was any man in the army by the name of Minner7 the variance must be considered a name, which feet the^identison,° and Pdid distinct name* th<? defendant asotólerof the ' who* there was strong evidence toshow, =as the person thifiessoreh°m ’

is evidence of the son*11 ofaper"

it seems that a register of marriages and die records of drme groe and heir-ship.

THIS was an action of ejectment brought to recover part °f l°t No. 86, in the forriier township of Milton, now Geneva”> the county of Cayuga. The cause was tried before, Mr. J. Spencer, at the Cayuga circuit, in June, 1817.

. The plaintiff produced in evidence an exemplification of “ * letters patent, dated the 13th of September, 1790, to Moses Minner, for lot No. 86, in the township of Milton, in Montgomery county, excepting 100 acres out of the south-east corner of the lot. Esther Miner was called as a witness on the part of the plaintiff, who testified, that she was the sister of Moses Miner, and of the lessors of the plaintiff, and that Moses Miner was, by trade, a gunsmith, and lived at Stoning-ton in Connecticut, and about the year 1774 went to sea. The witness also proved a letter from Miner to his mother, dated at ’.New-York, in September, 1775, in which he says that “he had got to he a soldier.” She heard, in 1776, that he was with the New-York troops, but never heard of him again until fourteen years after the war, when she was told that he had been killed; that the general opinion in the family was, that he was dead, and that he always spelt his name Minor and Miner, and not Minner. The testimony as to the death of Moses, and his being with the New-York troops, was objected to as hearsay, but was admitted by the judge* The plaintiff also gave in evidence a sworn copy of the records of the town of Stonington, which contained the - . ° date of the marriage of the parents of the lessors, and the time of the birth of their children. This memorandum was objected to, but was admitted by the judge.

The defendant gave in evidence a deed for the premises, dated August 29th, 1791, from Ebenezer Minor, describing himself as “ heir at law to the estate of Moses Minor, decease(j la(e a private in the first New-York regiment, mariner,” 3 r ° to William L Vredenburgh, in fee. It appeared from the testimony of Esther Miner, that she and the plaintiff’s leswere the only surviving heirs of Moses Miner; and it

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was admitted, that if the plaintiff was entitled to recover, the defendant ought to be compensated for his improvements. A verdict was taken for the plaintiff, subject to the opinion of the court.

Richardson, for the plaintiff.

Foot, contra.

He cited Jackson, ex dem. Shultze, v. Goes, 13 Johns. Rep. 518 —523.

delivered the opinion of the court. The premises in question are a part of lot No. 8$, in the old township of Milton, and are claimed by the lessors of the plaintiff under a patent to Moses Minner, bearing date the 13th of September, 1790. The principal question in the case is, as to the identity of the soldier. The patent is prima facie evidence of the service, as a soldier, of the person mentioned in the patent; and where there appears to have been two persons of the same, or nearly the same name, in titfe service, it is, sometimes, difficult to identify the patentee. But in the case before us the only difficulty appears to arise from the name being spelled Mitnner, instead of Miner. It is evident that the soldier under whom the lessors claim wrote his name Miner; and if it had been shown that there had been in the army any man by the name of Minner, the patent would be deemed to have issued to him ; but nothing of that kind appearing, it must be considered a mere mis-spelling of the naipe, which cannot affect the identity of the person; nor is it such a difference in the spelling as to make it a distinct name. Besides, the defendant himself sets up a title derived from a soldier by the name of Moses Minor. The grantor in the deed under which he claims describes himself as the heir at law of Moses Minor, deceased, late a private in the first New-York regiment, mariner. And the evidence in the case is very strong to show that this is the same person under whom the lessors derive title. It appears by the testimony of his sister, that he left Stonington in Connecticut, in the year 1774, and went to sea. And she produced a letter from him to his mother, dated at New-York, in September, 1775, which men

p. 228

tiohs that he had got to be a soldier, (as he expressed himself.) Thus it appears that the soldier under whom the plaintiff claims went to sea in the year 1774, and entered the service in the fall of 1775 ; and in the defendant’s deed he is described as a mariner, which is a pretty strong circumstance to show that both parties claim under the same person.

The hearsay évidence offered and objected to, of Moses Miner being with the New- York troops, and of his being killed in the army, was admissible for the purpose of showing his death, and the place where he died, but would not, of itself, afford any evidence of his having served in the army ¿s a soldier entitled to bounty land.

, We do not perceive any objection to the admission of a sworn copy of the records of the town of Stonington, as evidence of the family of Moses Miner. But this was unnecessary proof; the fact was sufficiently established by his sister, Esther Miner. From her testimony it appears that the lessor of the plaintiffs and herself are the only surviving heirs of her brother Moses. They are, accordingly, entitled to recover two-thirds of the premises in question. The defendant claims under a deed from Ebenezer Minor, who calls himself the heir at law of Moses Minor, but there is no evidence of that fact, nor any thing showing who Ebenezer Minor is.

It was admitted on the trial, that if the plaintiff had a . right to recover, the defendant was entitled to compensation for his improvement. The plaintiff must, accordingly, have judgment for two-thirds of the premises in question, with' stay of execution until the improvements have been paid for, pursuant to the act in such case made and provided.

Judgment for the plaintiff.