Daggett, J.
In this case, one point raised in argument, may be disposed of very readily. Did the alteration in the deed, [293]*293after it had been executed and recorded, by inserting the word "junior,” render it valid? It is quite clear, that the alteration attempted could have no operation. If, by consent of parties, a deed, where no attestation of witnesses, nor acknowledgment before a magistrate, is required, would be good at common law, where no third person is to be affected, as it unquestionably would be, still this alteration could not have any effect. It is a positive requirement of our law, that all deeds of land shall be attested by two witnesses, and acknowledged before a magistrate. Stat. 301, 2. No such deed can be valid without a compliance with these requisites. It follows, that if the alteration be material, the deed is fatally defective, without a new attestation and acknowledgment.
But in my opinion, the alteration is immaterial; and the deed is good. This is the only point of any importance. It seems, that there were two men, father and son, inhabitants of Preston, by the name of Elijah Wheedon. The elder was called Elijah Wheedon; the younger, Elijah Wheedon junior. They bore the same baptismal name, and the same surname. To distinguish them, they were called Elijah Wheedon and Elijah Wheedon jun. They might, with the same propriety, have been distinguished, by the name of Elijah Wheedon sen., and Elijah Wheedon. By adding the description senior to the name of the father, it would be unnecessary to distinguish the son by the addition of junior. These additions are, in their nature, temporary. They are adopted for convenience. Any other description might, with equal propriety, be substituted. They are, in no sense, any part of the name.
There were two gentlemen, many years ago, in Norwich, by the name of Benjamin Huntington. Both of them were magistrates, and both entitled to the addition of Esquire. One was usually called Esq. Ben; and the other, Esq. Ben at-the-corner, because he lived at an angle of two streets. Two gentlemen resided many years in New-Haven, of the same Christian and surname ; one of them an eminent physician, the other a distinguished lawyer. Neither senior nor junior was ever affixed to either of their names. It is a matter of great notoriety, that such instances are of frequent occurrence in all our large cities. What is to be the condition of wills, deeds, bonds, and other securities made to a man named John Smith, when there are twenty of that name residing in the same city? Are such instruments to be inoperative? In all such cases, the [294]*294principle is resorted to and applied, that where there is a latent ambiguity, and that is shown to exist, by parol evidence, the same species of testimony may explain it. Thus, a deed or bequest is made to John Smith of Preston; and there are two persons of that name m Preston. This fact is evinced, by testimony dehors the instrument. As this ambiguity is made to appear, by extrinsic proof; so it may be shown, by parol proof, who was intended as the grantee or devisee. 3 Stark. Ev. 1021. 1025. and the numerous cases there cited. In Jones v. Newman, 1 Bla. Rep. 60. there was a devise to John Cluer of Calcot. There were two John Cluers, father and son. It was insisted, that as the father died before the testator, the devise was lapsed ; and so the judge ruled at Nisi Prius ; but the whole court granted a new trial, because the defendant, who claimed under the will, was not permitted, at the trial, to prove, that the testator intended by John Cluer of Calcot, the son, and not the father. This case compares well with that now under consideration. Here is a deed to Elijah Wheedon. The plaintiff insists, that Elijah Wheedon, the son, or Elijah Wheedon jun., was intended. Why may he not show that fact?
In Powell v. Biddle, 2 Dall. 70. the supreme court of Pennsylvania declared, that a devise to Samuel Powell, (son of Samuel Powell, carpenter) might be shown to intend William Powell, a son of the same Samuel Powell, who had another son named Samuel Powell. By parol testimony, it was proved, that the testator was much attached to William; called him, by mistake or a nick-name, Samuel; and that he did not know Samuel. I feel no necessity, however, to extend the doctrine so far in this case.
It is material, that Elijah Wheedon jun., as appears on the motion, negotiated with the grantor for the land; and t hat the deed was intended for and delivered to him. It results, then, that as the deed was never delivered to Elijah Wheedon, the father, he could take nothing by it; and hence it is wholly inoperative, unless Elijah Wheedon jun. can show himself entitled under it. The maxim, then, applies, that a [deed shall be so construed ut res magis valeat quam pereat.
The authorities cited in opposition to this doctrine, are found in 2 Root 437. and Hobart 330.
In De Kentland v. Somers, in Root, it was decided, that where to an action of debt on judgment, a plea was put in, [295]*295that there was no such record, the omission of the addition of "junior,” in the description of one of the judgment debtors. was fatal. Great strictness is required in the description of records, in all indictments and other criminal proceedings, and slight variances are fatal errors. Rex v. Shakspeare, 10 East, 83. 85. Gordon v. Austin & al. 4 Term Rep. 611. Cole v. Hindson & al. 6 Term Rep. 234. But these rigid rules are not applied, in other cases, to the description of names. See Litchfield v. Farmington, 7 Conn. Rep. 100. In Beaumont v. Fell, 2 P. Wms. 141. it was decided, that Gertrude Yardley was the person intended in a will describing her by the name of Catharine Earnley. So in Powell v. Biddle, above cited, it was proved, by parol evidence, that a legacy given to Samuel Powell, was intended for William Powell, though there were persons of the same family of both names. Now, a record of a judgment in favour of Gertrude Yardley, could never be shown to be in favour of Catharine Earnley.
The opinion of the court in De Kentland v. Somers, is given very briefly. No reasons are assigned, nor authorities cited. It could not, therefore, controul this case, if it were identical; but there is a manifest difference.
It is somewhat difficult to understand the case of Wilson v. Stubbs, Hob. 330. The question arose upon a description in a writ of one Ralph Stubbs. It seems, that there were father and son of that name; and the court say, (and for this purpose the case was read) “the defendant being named Ralph Stubbs, without any addition, shall never be accounted the younger, but always the elder of the two of that name.” (How can this be reconciled with the cases in Dallas, Blackstone and Peere Williams, as cited above!) A more satisfactory report of this case is found in Cro. Jac. 624.
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Daggett, J.
In this case, one point raised in argument, may be disposed of very readily. Did the alteration in the deed, [293]*293after it had been executed and recorded, by inserting the word "junior,” render it valid? It is quite clear, that the alteration attempted could have no operation. If, by consent of parties, a deed, where no attestation of witnesses, nor acknowledgment before a magistrate, is required, would be good at common law, where no third person is to be affected, as it unquestionably would be, still this alteration could not have any effect. It is a positive requirement of our law, that all deeds of land shall be attested by two witnesses, and acknowledged before a magistrate. Stat. 301, 2. No such deed can be valid without a compliance with these requisites. It follows, that if the alteration be material, the deed is fatally defective, without a new attestation and acknowledgment.
But in my opinion, the alteration is immaterial; and the deed is good. This is the only point of any importance. It seems, that there were two men, father and son, inhabitants of Preston, by the name of Elijah Wheedon. The elder was called Elijah Wheedon; the younger, Elijah Wheedon junior. They bore the same baptismal name, and the same surname. To distinguish them, they were called Elijah Wheedon and Elijah Wheedon jun. They might, with the same propriety, have been distinguished, by the name of Elijah Wheedon sen., and Elijah Wheedon. By adding the description senior to the name of the father, it would be unnecessary to distinguish the son by the addition of junior. These additions are, in their nature, temporary. They are adopted for convenience. Any other description might, with equal propriety, be substituted. They are, in no sense, any part of the name.
There were two gentlemen, many years ago, in Norwich, by the name of Benjamin Huntington. Both of them were magistrates, and both entitled to the addition of Esquire. One was usually called Esq. Ben; and the other, Esq. Ben at-the-corner, because he lived at an angle of two streets. Two gentlemen resided many years in New-Haven, of the same Christian and surname ; one of them an eminent physician, the other a distinguished lawyer. Neither senior nor junior was ever affixed to either of their names. It is a matter of great notoriety, that such instances are of frequent occurrence in all our large cities. What is to be the condition of wills, deeds, bonds, and other securities made to a man named John Smith, when there are twenty of that name residing in the same city? Are such instruments to be inoperative? In all such cases, the [294]*294principle is resorted to and applied, that where there is a latent ambiguity, and that is shown to exist, by parol evidence, the same species of testimony may explain it. Thus, a deed or bequest is made to John Smith of Preston; and there are two persons of that name m Preston. This fact is evinced, by testimony dehors the instrument. As this ambiguity is made to appear, by extrinsic proof; so it may be shown, by parol proof, who was intended as the grantee or devisee. 3 Stark. Ev. 1021. 1025. and the numerous cases there cited. In Jones v. Newman, 1 Bla. Rep. 60. there was a devise to John Cluer of Calcot. There were two John Cluers, father and son. It was insisted, that as the father died before the testator, the devise was lapsed ; and so the judge ruled at Nisi Prius ; but the whole court granted a new trial, because the defendant, who claimed under the will, was not permitted, at the trial, to prove, that the testator intended by John Cluer of Calcot, the son, and not the father. This case compares well with that now under consideration. Here is a deed to Elijah Wheedon. The plaintiff insists, that Elijah Wheedon, the son, or Elijah Wheedon jun., was intended. Why may he not show that fact?
In Powell v. Biddle, 2 Dall. 70. the supreme court of Pennsylvania declared, that a devise to Samuel Powell, (son of Samuel Powell, carpenter) might be shown to intend William Powell, a son of the same Samuel Powell, who had another son named Samuel Powell. By parol testimony, it was proved, that the testator was much attached to William; called him, by mistake or a nick-name, Samuel; and that he did not know Samuel. I feel no necessity, however, to extend the doctrine so far in this case.
It is material, that Elijah Wheedon jun., as appears on the motion, negotiated with the grantor for the land; and t hat the deed was intended for and delivered to him. It results, then, that as the deed was never delivered to Elijah Wheedon, the father, he could take nothing by it; and hence it is wholly inoperative, unless Elijah Wheedon jun. can show himself entitled under it. The maxim, then, applies, that a [deed shall be so construed ut res magis valeat quam pereat.
The authorities cited in opposition to this doctrine, are found in 2 Root 437. and Hobart 330.
In De Kentland v. Somers, in Root, it was decided, that where to an action of debt on judgment, a plea was put in, [295]*295that there was no such record, the omission of the addition of "junior,” in the description of one of the judgment debtors. was fatal. Great strictness is required in the description of records, in all indictments and other criminal proceedings, and slight variances are fatal errors. Rex v. Shakspeare, 10 East, 83. 85. Gordon v. Austin & al. 4 Term Rep. 611. Cole v. Hindson & al. 6 Term Rep. 234. But these rigid rules are not applied, in other cases, to the description of names. See Litchfield v. Farmington, 7 Conn. Rep. 100. In Beaumont v. Fell, 2 P. Wms. 141. it was decided, that Gertrude Yardley was the person intended in a will describing her by the name of Catharine Earnley. So in Powell v. Biddle, above cited, it was proved, by parol evidence, that a legacy given to Samuel Powell, was intended for William Powell, though there were persons of the same family of both names. Now, a record of a judgment in favour of Gertrude Yardley, could never be shown to be in favour of Catharine Earnley.
The opinion of the court in De Kentland v. Somers, is given very briefly. No reasons are assigned, nor authorities cited. It could not, therefore, controul this case, if it were identical; but there is a manifest difference.
It is somewhat difficult to understand the case of Wilson v. Stubbs, Hob. 330. The question arose upon a description in a writ of one Ralph Stubbs. It seems, that there were father and son of that name; and the court say, (and for this purpose the case was read) “the defendant being named Ralph Stubbs, without any addition, shall never be accounted the younger, but always the elder of the two of that name.” (How can this be reconciled with the cases in Dallas, Blackstone and Peere Williams, as cited above!) A more satisfactory report of this case is found in Cro. Jac. 624. by the name of Stubbs v. Cook. “In a replevin by Cook against Ralph Stubbs, for beasts taken, he made cognizance as bailiff to the Earl of Northumberland for an amerciament in a leet; whereupon they were at issue, which was found for the plaintiff, and damages and costs assessed, and judgment given accordingly. He surmised, that the suit was against Ralph Stubbs senior, and, execution being sued, the sheriff had endeavoured to levy the damages and costs upon the goods of Ralph Stubbs junior; wherefore he sued this writ, [called a writ of identitate nominis,] to be discharged; and the writ was allowed, although it was after verdict, judgment and execution awarded.” Now, why was this writ [296]*296allowed? If it had been found, that Stubbs jun. was the man against whom the judgment was rendered, would he have been discharged? The trial of the cause supposes, that it might have appeared, that Ralph Stubbs jun. was in truth the debtor, and that too from the identity of the names. It would be an odd enquiry, in a court of justice, whether John Stiles, a defendant, should be relieved from a judgment against Thomas Nokes. The suggestion of the court, therefore, in the case in Hobart, that Ralph Stubbs without addition, should never be accounted the younger, but always the elder of that name, is done away, by the trial of the cause. The case proves, that when there are father and son of the same name, an enquiry may be instituted, by which it is to be ascertained which is intended, though neither senior nor junior be added. In this view, this authority is in accordance with the opinion now expressed. Had the deed been made to Elijah Wheedon, and the bargain been made with the father, and the deed delivered to him, it might have presented a different question.
Let a new trial be granted.
The other Judges were of the same opinion.
New trial to be granted.