Bouldin v. Massie's Heirs

Mr. Chief Justice Marshall delivered the opiion of the court, and after stating the case, proceeded as follows: *148 It may be doubted whether the act of the 10th of August, 1790, authorized the issuing of a patent in the name of an assignee. This doubt however is entirely removed by the act of June 9th, 1794, c. 238, which enacts that every officer and soldier, his heirs or assigns, entitled to bounty lands, &c. according to the laws of Virginia, “ shall, on producing the warrant, or u certified copy thereof, and a certificate under the seal of the office where the said warrants are legally.kept, that the same or a part thereof remains uncertified, and on producing the survey agreeably to the laws of Virginia, for the tract or tracts to which he or they may be entitled as aforesaid, to the Secretary of the Department of War, such officer or soldier, his or their heirs or assigns, shall be entitled to and receive a patent for the same, from the President of the United States, any thing in any former law to the contrary notwithstanding.” This act recognizes the right of the assignee to a patent, without prescribing the manner in which the assignment is to be proved. ’ It requires the production of the warrant, or a certified copy thereof, and of the plat and certificate of survey, but gives no rule respecting the proof of the assignment. It is admitted that the assignment may be endorsed on the warrant, or may be connected with it, and that the warrant may remain in the surveyor’s office, since a patent may be issued for a part of it, as was done in this case, while a part remains unsatisfied ; and may be issued on a certified copy of it. It would seem, from these circumstances, that proof of the assignment might be received by the surveyor. *149 if the warrant were assigned by endorsement before the entry, or if the entry were assigned and trans* ferred before the survey, the survey would be made and certified to the land office, in the name of the assignee. The law does not, in terms, require that the original assignment, or a copy of it, should be transmitted to the office with the survey. It would seem then, that in ordinary cases, proof of the assignment might be made in the surveyor’s office, and certified to the land office. Unquestionably, if notice were given by any person claiming title against the certificate of the surveyor, the fact would be examinable before the emana-tion of the patent; but, as no law requires that the assignment should be submitted to the person who issues the patent, or be always examined and decided on by him, nothing seems to oppose, the practice of relying, in ordinary cases, on the surveyor’s certificate. If such be the rule of the office, the Court ought not to disregard it; and that it is the rule, is, we think, to be inferred from the fact that this patent has been issued to the assignee in this case on such testimony, and that the bill does not charge it to have been issued irregularly. It denies the assignment; but not that the usual proof of it was made in the land office. In this case the survey was made in the name of the assignee, and the surveyor certifies that the warrant was assigned to the extent of the survey. We must suppose that the usual proof of the assignment was received. By the act of the 3d of March, 1803, c. 343, it is enacted, that “ where any warrants granted by the state of Virginia for military services, have been sur *150 veyed on the north-west side of the river. Ohio, between the Scioto and the Little Miami Rivers, and the said warrants, or the platts and certificates of survey made thereon, have been lost or destroyed, the persons entitled to the said land may obtain a patent therefor, by producing, a certified duplicate of the warrant from the land office of Virginia,, or of the platt and certificate of survey from the office of the surveyor in which the same was recorded, and giving satisfactory proof 'to the Secretary of War, byhisatfidavit, or otherwise, of the loss or destruction of said warrant, or platt and certificate of survey.” This act has been literally complied with, except that instead of “ a certified duplicate of the warrant from the land-office of Virginia,” we find a copy of the warrant, certified by Richard C. Anderson, the principal surveyor, dated the 30th of April, 1795, when the warrant was in his office, and the certificate regularly and officially given, and written on the back of a survey, No. 1629, for 400 acres, part of the said warrant, on which a patent was issued to Robert Jouitte, dated the 28th day of October, 1799. The purpose for which a certified duplicate from the land office of Virginia was required in the case of a lost warrant, undoubtedly was to protect the United States from fraudulent claims on warrants alleged to be lost, but which never existed; not to settle controversies between the original holder and those claiming under him by assignment. The land office of the United States being in possession of an official copy of that warrant, on which a patent had been issued, no motive existed for requiring a dupli *151 cate from the land office of Virginia. The original existence of such warrant could not be more fully , J proved, and the evidence of it which was in the office was such as the law deemed satisfactory at the time it was received. But if this were an irregularity, it is one which could only affect the United States, and is of no consequence in this cause, since all parties admit the existence of the warrant and claim under it. This patent then must be considered as having issued regularly, on the documents required by the rules of the office ; at least so far as concerns the parties .before the court. The title of the person who has obtained it is undoubtedly examinable, but no presumption exists against him. The testimony of Anderson, the principal survey?- or, has been taken, for the purpose of proving the .assignments from Jouitte to Massie. He deposes that the office was opened for making entries on the north-west side of the Ohio, on the 1st day of August, 1787, and that he had continued ever since to transact the business in person, with the exception of a short time which he mentions, and which does not comprehend the making of the entries in this case. He has never, except in one instance, which was not Jouitte’s, made entries in the name of an assignee, without having previously received the assignment, and in that instance he was informed by the original proprietor of the warrant himself, that he had sold it. That Jouitte’s warrant was deposited in his office on the 19th day of November, 1784, (he thinks'by Robert Jouitte himself,) and that the witness made *152 all the entries on it. He has no hesitation in saying the assignment was prior to the entry on which this survey was made, or he could not have made the entry. On being asked whether the assignment was on the warrant, or on a separate piece of paper, he answers, on a separate paper, he presumes, as the first entries were made in jouitte’s name. On being cross-interrogated by the plaintiff, he says, that he does not recollect the precise time when the assignment was produced in his office, .but it was not prior to the 27th of January, 1795, (the date of the first entry in the name of Massie,) and to the best of his recollection, purported and appeared to be made by Jouitte himself. He does not recollect its date, nor whether i was attested-by a subscribing witness. It was lodged in his office by Nathaniel Massie, and taken out with the platt and certificate of survey of the assigned part of the warrant, by him, on the 14th of June, 1797. In corroboration of the testimony of Anderson, the defendants rely on a grant made to Massie, on the 2d of January, 1802, on a survey made the 1st of April, 1797, for Massie, as assignee of part of the same warrant. The entry was made on the 27th of January, 1795, and the patent contains a recital of the assignment of 2051 f acres, part of Jouitte’s warrant. It is impossible to read the testimony of the principal surveyor, or to credit it, without believing that an assignment purporting to be made by Jouitte, was produced by Massie, and deposited in his office. His fixed rule to require the production of an assign *153 aaent before an entry in the name of the assignee coyld be permitted, his averment that he never departed from that rule, except in á single instance, * . ' his elear recollection of the circumstances attending that instance, his admission of entries in the name of Massie, as assignee, in the life-time of Jouitte, his averment that the assignment was placed in his office, and taken out with thé platts and certificatés of survey by Massie, prove that there must have been such a paper. But the proof of its being executed by Jouitte, is certainly not so explicit as it might or ought to have been. Colonel Anderson does not say that he was acquainted with the- handwriting of Jouitte, and believed the ássignment to have been written by him. But he acted as a public officer on the full conviction of this fact, and his whole testimony proceeds upon the idea that he was entirely satisfied of the verity of the instrument. Jouitte and himself having been officers in the same service, it is not improbable that the handwriting of the one was known to the other; and to the question whether the assignment purported to be made by Jouitte himself, or by an agent, he answers that ií “ purported and appeared to him to be made by Jouitte himself, to the best of his recollection.” The word “ appeared,” which is introduced by the witness in his answer to this interrogatory, and which is not in the question, seems intended to indicate that he had formed an opinion on the handwriting. Had the plaintiff suspected that Anderson was not acquainted with the handwriting of Jouitte, or not perfectly satisfied that this assignment was in his handwriting, *154 some question would have been propounded indicatine this suspicion. But no such question is pro- ° ‘ , . . , , . pounded; and we can make no other justifiable mference from his whole testimony and conduct, than that he was acquainted with the handwriting of Jouitte, and was satisfied that the assignment was written by him. On the character of the principal surveyor no imputation is cast. His office is a proof of the confidence reposed in his integrity by those who knew him. His testimony is incorrect, is studiously calculated to establish an untruth, and his official conduct fraudulent, if he had no sufficient knowledge of the verity of the assignment. That his testimony is less 'explicit than it ought to have been ; that it omits the express averment of a fact, implied by all he says, and which is necessary to its fairness and its truth, will not, we think, justify a presumption against that fact. We understand Colonel Anderson’s testimony as implying a knowledge of the handwriting of Mr* Jouitte, and of the verity of the assignment. There is still another defect in the testimony which is by no means inconsiderable, and which has been strongly pressed by the counsel for the plaintiff. The assignment itself is not produced, and there is no direct proof of its loss.- Its absence depriving the plaintiffs of the power of disproving it, is á circumstance calculated to excite suspicion, and ought to be accounted for. The rule that the loss of a paper ought to be established before its contents can be be proved, is well settled, and ought tó be maintained. Yet there are difficulties in applying it to this case which are not to be surmounted. *155 The legal title of Massie is consummated, and the assignment, having performed its office, is no longer a paper essential to that title. The same proof respecting it therefore cannot be demanded, which might be required were it relied on as composing part of the title.- it was not absolutely incumbent on the assignee to preserve it after the emanation of the patent; and he could not, unless- the transaction be presumed fraudulent, foresee this controversy. He died before any claim on the part of the plaintiffs was asserted, before any denial ot the assignment was made, and therefore could not be expected to prepare testimony in its support, or to account for its loss. Had the assignee been living, he might be expected to show, at least by his own affidavit, supported by probable circumstances, the loss of the assignment j but he died before the occurrence of any circumstanstance which might suggest the propriety of such an affidavit. The defendants have done all in their power. They aver their belief that the assignment was real, their total ignorance of its present existence, and their belief of its destruction, and they state the probability that it was burnt with the papers of the war office. Under all the circumstances of the case, the probability of its being consumed in the war office is great. The assignment was delivered with the warrant, and the platt and certificate of survey, to Massie, on the 14th of June, 1797. It might be supposed proper to deposit it with those papers in the war -office for the purpose of obtaining the patent". There *156 is nothing unreasonable in the supposition that it was there deposited, and consumed with the other papers of the office. We think, too, that the length of time which was permitted to elapse before any inquiries appear to have been made respecting ihis property, furnishes strong evidence of the opinion that Mr. Jouitte had parted with his interest in it. So early as January, 1795, between one and two years before the death of Jouitte, Massie claimed a part of the warrant as his own, and made entries on it in the public office, in his own name as assignee. It is not probable that a property which constituted no inconsiderable part of the estates of the officers, should have been neglected by this officer. in his life time, or by his family after his death. Inquiries respecting it would naturally have been made, not by the daughter, tvho may be supposed to have been an infant, but by her mother, her guardian, or other friends. The omission to make these inquiries may be accounted for if it was known that the warrant was assigned: not otherwise, without imputing to those relatives of the infant, a considerable degree of negligence. We think that under these circumstances the non-production of the assignment ought not so to operate against the defendants as to defeat their legal title. But the plaintiffs deny the validity of the assignment, because it was not made on the warrant, nor annexed to it The law which authorized the assignment of warrants did not require, that it should be made by endorsement, or by any instrument annexed to the war *157 rant. It is not shown to have been the usage. Under circumstances most generally attending this property, and which actually attended this particular case, the assignment could neither have been endorsed nor annexed without great ir. jc wenience. The warrant was filed in the office of the Surveyor General, with the entries. This would occur in every case where the entries in whole or in part were made. The original proprietors resided generally in Virginia. The warrants were deposited in the office of the Surveyor General, in Kentucky. These warrants, thus deposited^ and the entries made on them, were transferrable. It is obvious that the transfer, if no law forbid it, would be made on a separate paper. If any particular mode of authentication was necessary, the law ought to have prescribed that mode. This not being done, the mode was left to the parties. The subsequent act of the legislature of Virginia, rather shows the mischief which had grown out of this state of things, and of the practice under the law, than that the practice under the law was contrary to the legislative construction of it. This is one of those cases in which the equity of the plaintiffs is not, we think, sufficiently proved to deprive the defendants of their legal title. Decree affirmed, with costs. Footnotes [a] 1 Hardin, 37. 4 Bibb, 447,