Lindsay v. Scroggs

The opinion of the court was delivered by Gibson, C. J. — The presumption, that a warrant o| location, is for the use of the person in whose name it w’as taken out, may be rebutted by slight evidence; and, on the other hand, a trust, presumed from the relation in which the person whose name is used, stands to another, may be rebutted by evidence equally, slight — - .even by the reputation of the country. The ownership majt be set143 tied by evidence that would be incompetent to settle anything else. The paper which is the subject of exception, purports to bo a memorandum of instructions, received in a course of official duty, in relation to warrants in the hands of the deputy surveyor, as the property of Samuel Blythe; and, among the rest,one in thename of .John M‘Connel, on which, it would appear, the deputy had been instructed to return a survey, made on a warrant in Blythe’s own name. ■ The rest relates to other warrants that were to be certified as unsatisfied, to entitle Blythe to the amount of the purchase money in land office credits. The object, therefore, was, to prove that Blythe was the owner ipf the warrant in the name of ikf‘ Connel, under whom the defendant had pretended to claim. The acts'of a deputy surveyor, preparatory to the consummation of his duty, such as his field notes, are unquestionably admissible as part of the res gestee; and to prove them, it has been aptly said, even the sweepings of his office are evidence. In Wilson v. Stoner, the survey and endorsement in the hand-writing of the deputy, were held void in the absence of proof of their haying been ihade in pursuance of a previous authority; and they were- deemed incompetent to prove the existence of such an authority, because, on the proof of that fact dépended' the question, whether they had been made in a*course of official duty; and the admission of them to prove it, would have been an assumption-of the question. Here there is no doubt of the existence of an authority to give the deputy cognizance; and ,as the noting of the instructions was not only in the course of his duty, but necessary fo a faithful discharge of it, the act was clearly of an official stamp: so that showing the footsteps of the parties, and having been found in the office of the deputy, after a period of forty years from his death, the paper was incontestably competent. Judgment affirmed*. ■