Bouldin v. Massie's Heirs
20 U.S. 122

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U.S. Supreme Court

Bouldin v. Massie's Heirs, 20 U.S. 7 Wheat. 122 122 (1822)

Bouldin v. Massie's Heirs

20 U.S. (7 Wheat.) 122

APPEAL FROM THE

CIRCUIT COURT OF OHIO

Syllabus

The patent issued on a military warrant under the law of Virginia, is prima facie evidence that every prerequisite of the law was complied with.

The loss of a paper must be established before its contents can be proved, but where the patent issues upon an assignment of the warrant and the legal title is thus consummated, the assignment itself being no longer a paper essential to that title, the same degree of proof of its existence cannot be required as if it were relied on as composing part of the title.

Where there is a strong degree of probability that the assignment has been lost or destroyed through accident, its nonproduction by the party claiming under it ought not to operate against him so as to defeat his legal title.

The original law of Virginia which authorizes the assignment of warrants did not require that it should be made by endorsement or by an instrument annexed to the warrant.

Page 20 U. S. 123

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 1,900 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 1,200 acres, part thereof on a military land warrant No. 2675, granted by the Commonwealth of Virginia to Robert Jouitte for 2,666 2/3 acres of land, of which 2,051 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 validity 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

Page 20 U. S. 124

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 plat and certificate of survey made in the name of N. Massie, as assignee on 24 December, 1796 and recorded in the surveyor's office on 9 June, 1797, to which were annexed the following certificate and affidavit:

"I do certify that the within survey was made on 1,200 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 13 of June, 1797, with the original survey, of which this is a duplicate; warrant No. 4675 was taken out 14 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."

"Richard Anderson L.S."

Page 20 U. S. 125

"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 8 November, 1800, and that the same has been lost or destroyed."

"Given under my hand and seal this 16th day of January, 1806."

"Joseph Taylor L.S."

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 2 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 27 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.

Page 20 U. S. 147

MR. CHIEF JUSTICE MARSHALL delivered the opinion of the Court, and after stating the case, proceeded as follows:

Page 20 U. S. 148

It may be doubted whether the act of 10 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 9, 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 a 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, anything 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.

Page 20 U. S. 149

If the warrant were assigned by endorsement before the entry, or if the entry were assigned and transferred 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 emanation 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 3 March, 1803, c. 343, it is enacted that

"Where any warrants granted by the State of Virginia for military services have been surveyed

Page 20 U. S. 150

on the northwest side of the River Ohio, between the Scioto and the Little Miami Rivers, and the said warrants, or the plats 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 plat 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 by his affidavit or otherwise of the loss or destruction of said warrant or plat 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 30 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 28 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 duplicate

Page 20 U. S. 151

from the Land Office of Virginia. The original existence of such warrant could not be more fully 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 surveyor, 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 northwest side of the Ohio on the 1 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 19 November, 1784 (he thinks by Robert Jouitte himself), and that the witness made

Page 20 U. S. 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 an 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 27 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 in was attested by a subscribing witness. It was lodged in his office by Nathaniel Massie and taken out with the plat and certificate of survey of the assigned part of the warrant, by him, on 14 June, 1797.

In corroboration of the testimony of Anderson, the defendants rely on a grant made to Massie on 2 January, 1802, on a survey made 1 April, 1797, for Massie, as assignee of part of the same warrant. The entry was made on 27 January, 1795, and the patent contains a recital of the assignment of 2,051 2/3 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 assignment

Page 20 U. S. 153

before an entry in the name of the assignee could be permitted, his averment that he never departed from that rule except in a single instance, his clear recollection of the circumstances attending that instance, his admission of entries in the name of Massie, as assignee, in the lifetime of Jouitte, his averment that the assignment was placed in his office and taken out with the plats and certificates 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 assignment 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 it "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,

Page 20 U. S. 154

some question would have been propounded indicating this suspicion. But no such question is propounded, and we can make no other justifiable inference 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 a 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 proved is well settled and ought to be maintained. Yet there are difficulties in applying it to this case which are not to be surmounted.

Page 20 U. S. 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 of 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; but he died before the occurrence of any circumstance 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 plat and certificate of survey to Massie on 14 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

Page 20 U. S. 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 this 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 lifetime or by his family after his death. Inquiries respecting it would naturally have been made not by the daughter, who 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 nonproduction 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 or 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 warrant.

Page 20 U. S. 157

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 inconvenience. 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 transferable. It is obvious that the transfer, if no law forbade 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.

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