APPEAL from the Circuit Court of Ohio.
This suit was brought by the appellants, who were plaintiffs in the Circuit Court, to obtain a conveyance for twelve nineteenths of a tract of land lying in the state of Ohio, containing 1900 acres, for which a patent was issued in December, 1814, to the defendants, the heirs of Nathaniel Massie. The other defendants were purchasers from him. The survey on which the patent was founded was made as to 1200 acres, part thereof on a military land warrant No. 2675, granted by the Commonwealth of Virginia, to Robert Jouitte for 2666 2/3 acres of land, of which 2051 2/3 acres were alleged to have been assigned to Nathaniel Massie by Robert Jouitte. The plaintiff Alice claimed as heir of Robert Jouitte, and denied this assignment: on the existence and valididity of which the whole cause depended. The assignment itself could not be produced, and was supposed by the defendants to have been consumed with the other papers of the war office, in November, 1800. Under these circumstances, the defendants insisted that the patent was prima facie evidence that every prerequisite of the law was complied with; and that satisfactory and legal proof of the assignment was made; and they relied on the testimony in the cause as supporting, instead of weakening, this presumption.
The plaintiffs contended that the papers filed in the Land Office did not justify the emanation of the patent; and that the absence of the assignment, and of any proof of its destruction, justified their requiring from the defendants the most complete proof of its existence and loss.
The papers on which the patent issued, were a copy of the original warrant, a copy of the platt and certificate of survey made in the name of N. Massie, as assignee, on the 24th of December, 1796, and recorded in the surveyor's office on the 9th of June, 1797, to which were annexed the following certificate and affidavit: 'I do certify that the within survey was made on 1200 acres, part of warrant No. 2675, (Jouitte's warrant;) 403 acres, part of warrant No. 3398; and 277 acres, part of warrant No. 2642. The warrants No. 2675 and 3398 were taken out of this office the 13th day of June, 1797, with the original survey, of which this is a duplicate; warrant No. 4675 was taken out the 14th day of March, 1799; and that the said warrants had not been satisfied prior to the date on which they were taken out of this office, and that so much of each warrant as is contained in this survey, at least, was assigned to said Massie.
Given under my hand and seal of office, this 20th day of April, 1802.
State of Ohio, Ross county, ss.
Personally appeared before me, Joseph Taylor, a Justice of Peace in and for the county aforesaid, Nathaniel Massie, who made oath, that the original survey of which this is a duplicate, was lodged in the office of the Secretary of War for the purpose of obtaining a patent prior to the 8th day of November, 1800, and that the same has been lost or destroyed.
Given under my hand and seal this 16th day of
The testimony of Anderson was taken in the cause for the purpose of proving the assignment from Jouitte to Massie, and the substance of his evidence will be found in the opinion of the Court. In confirmation of his testimony, the defendants also relied on a grant made to Massie, on the 2d of January, 1802, on a survey made the first 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 205 and 2/3 acres, part of Jouitte's warrant.
A decree, dismissing the plaintiff's bill, was entered by the Circuit Court, pro forma, by consent, and the cause was brought by appeal to this Court.
Mr. Hammond, for the appellants, argued, that the defendants stood in the same situation that Massie was at the time he made the sales, and it was incumbent upon them to prove the assignment of the warrant to Massie.
In every case, the person claiming as assignee, must establish his right by proof. If the endorsee of a promissory note, bill of exchange, or other writing made assignable at law, sue in his own name upon such note, bill, or writing, he cannot recover without making proof of the assignment. The person who claims to be the assignee of a warrant or platt and certificate of survey, until after a patent is issued to him, cannot assert in his own name, against third persons, a right arising under such warrant or survey without proving his purchase. Kerr v. Watts, 6 Wheat. 550. If this is the law where the original owner asserts no claim, and is no party before the Court, there is much stronger reason that it should be so when such original owner is pursuing his right in the hands of a third person, whose claim he contests. It has, indeed, been decided, that when a grant once issues, such grant is prima facie evidence that every intermediate act necessary to authorize the emanation of the grant has been regularly transacted. Polk's lessee v. Wendell, 9 Cranch, 87. Ross v. Reed, 1 Wheat. Rep. 482. 487. 6 Wheat. Rep. 293. But that was at law, and the Court, in the opinion delivered, plainly intimate, that the fact, whether the incipient right had actually been assigned, might be contested in equity. Upon whom the burden of proof should rest, in such a case, is not noticed.
But the Kentucky Court of Appeals has decided, that where there had been no actual assignment of the warrant, the owner might recover the lands in the hands of the pretended assignee, after the grant, or in the hands of the purchaser with notice. 1 Hardin 37; 4 Bibb 447. And they seem to have required the claimant to adduce proof that no assignment ever was made. In these cases, the assignment was actually endorsed upon the warrant, which it is conceived is a material circumstance.
Warrants for land, and plats and certificates of survey were not assignable upon the principles of the common law. They were subjects of contract, and might be sold and purchased: but without the aid of statutory provisions, the purchaser could not have acquired an absolute legal interest in them. The first statute of Virginia, that provided for granting land warrants, and executing surveys, enacted that 'all persons, as well foreigners as others, shall have a right to assign and transfer warrants and certificates of survey for land.' To assign or transfer, that is, to vest in the purchaser an absolute legal title to the warrant or platt and certificate of survey, can only be done by endorsing such assignment or transfer upon the warrant or platt itself, or by making it in writing, and attaching such writing to the document transferred: so that the subject assigned or transferred, and the act of assignment and transfer shall be inseparable. The owner of a land warrant may sell it, either by parol or written contract. Such sale would vest in the purchaser in equitable right to the warrant; a right which a Court of law would respect, and a Court of equity enforce; but it would not constitute him the legal owner. It would not operate as an absolute assignment or transfer of the legal ownership. So the obligee of a bond, made assignable by law, may dispose of it by contract; but if no assignment be endorsed upon it, or absolutely attached to and connected with it, the purchaser, it is conceived, could not sustain an action upon it in his own name as assignee. He would be compelled to sue in the name of the original obligee, and upon establishing his purchase, a Court of law would so far respect it as to preclude the nominal plaintiff from interfering to control the suit.
This position is sustained by the subsequent legislation of Virginia on this subject. Provision was made by law for returning warrants in part located, or otherwise, and receiving new warrants in exchange. The propriety of issuing new warrants to assignees where the name of the original owner was merely endorsed on an assignment executed without the attestation of witnesses, was doubted. To provide for this case, the act of the Virginia Assembly of February, 1809, was enacted. It recites the provision authorizing the assignment of warrants in general terms, and that there are 'many warrants outstanding which have been transferred, sometimes by the mere endorsement of the names of the holder, and at others by assignment without attestation, and doubts have arisen whether, in such cases, it would be proper for the register of the land office to grant to the present holders new warrants, in exchange for the warrants so transferred and assigned. It then directs, hat in such cases new warrants may be granted in exchange, provided always that no such exchange shall be made, unless the applicant therefor shall have previously annexed to such warrant his own affidavit, stating that so far as he knows or believes, the endorsements or assignments appearing on such warrant have been made fairly and bona fide, and that he, or those in whose name or names such exchange is sought, is or are the true and rightful proprietor or proprietors of such warrant.' The act provides that this affidavit, with the original warrant, shall be preserved, and that the right of the original owner, or other, to the original warrant, shall not be affected by this proceeding. And it directs, that thereafter warrants shall only be assigned by written assignment on the back, attested by two or more witnesses. It is insisted that the framers of this statute recognised no mode of assignment, to vest a legal interest, in the warrant, that existed distinct and separate from the warrant itself. They contemplated that in every case the warrant should carry with it the evidence of ownership. And because in all transactions with third persons, claiming to be owners, the evidence might be insufficient or fabricated, the law required the preservation of the warrant itself, that with it this evidence might be preserved. Lest by exchanging the warrant this evidence should be lost, and the relative rights of the parties changed, or otherwise affected, the provisions just recited were enacted.
In this case, the warrant never was so assigned or transferred, as to vest a legal interest in Massie, and it certainly cannot be incumbent upon the complainants to disprove that which does not exist. Had an assignment of any kind, subscribed with Jouitte's name, been endorsed upon the warrant, there would be something to which the complainants could direct their proof. They might attempt to negative the fact, that Jouitte had actually subscribed the paper; and the actual existence of such endorsement might be considered, at least after the grant issued, as prima facie evidence that it was genuine. But this presumption cannot be raised, without some foundation for it to rest upon.
Where the assignment is made upon a separate paper, as is claimed here, the defendants must establish the existence of this assignment, before it can avail them any thing. When the existence of such separate assignment is established, its genuineness and operative effect are to be examined.
The deposition of Anderson does not sufficiently prove that any such assignment ever existed. He evidently testifies, not from any distinct recollection of the fact, but from a knowledge of what ought to have existed to justify him in allowing entries in Massie's name as assignee. His testimony is as to the general course of business in the office, from which he infers that an assignment must have existed. And when the defendants put the question direct as to the character of the assignment, whether endorsed upon the warrant, or made on a separate paper, his answer is not positive as to the fact; but is clearly an inference from other facts. 'On a separate piece of paper, I presume, as the entries in the first instance were in Jouitte's name.' This presumption, deduced by the witness from the fact that the warrant was deposited in the office by Jouitte, unassigned, and various locations made upon it in the owner's name, is but slender evidence upon which to establish any fact. The foundation on which the witness makes this presumption is before the Court. Can it be said that the inference is of that irresistible character that amounts to proof? If the witness were present, his testimony could not be received as competent to establish the fact that such paper existed, unless he were able to state, and did state, that he had such knowledge of Jouitte's handwriting as, upon well settled principles, would enable him to testify to it. Nothing is shown in his deposition of his knowledge of Jouitte's handwriting. For this reason alone his testimony is inoperative.
Were the existence of the paper clearly established, its contents and effect could not be proved, without first proving its loss. The testimony shows that this assignment was delivered to Massie. It is thus traced to his possession. His own affidavit, made with a view to obtaining the grant for the lands in question, is wholly silent as to its loss or destruction, and there is no evidence what has become of it. In such case it is not competent for the defendants to prove its contents.
The testimony of Anderson is liable to some exceptions. He is positive that he never made but one entry without an assignment of the warrant; that Jouitte's first entries were made by Massie; that the assignment was taken out of the office with the platt and certificate, and that the assignment was first produced by Massie. He is, with respect to other facts equally material, unable to recollect. He is not certain that the assignment was on a separate paper; does not recollect when it was produced; its date, or whether attested by subscribing witnesses; nor is he positive whether it was executed by Jouitte personally, or by an agent. It is manifest from all this, that he does not state facts from a distinct recollection of circumstances and transactions; but from inference only. His official papers show, that certain facts ought to have existed, and hence he supposes that they existed, and so testifies.
The certificate of Anderson, on the 10th of May, 1801, that the warrant had been taken out of the office by mistake on the 14th of June, 1797, is incorrect in point of fact; because, both his subsequent certificate of the 20th of April, 1802, and his deposition, show, that it was delivered to Massie with the original platt and certificate of survey to be returned to the war office, that a patent might issue. As the warrant was wholly appropriated, the last survey upon it being made upon the first of April preceding, it was regular and proper, if not absolutely necessary, to return the warrant to the war office. The law required the warrant to be returned to the office where the patent issued, or a certificate to be adduced from the surveyor that a part remained unappropriated in the office, before a grant could issue. As the warrant was wholly appropriated, this certificate could not be made; there was, of consequence, a propriety in returning the original warrant. There could be no ...