By an Act of Congress passed on the 3d of March, 1835, 4 Stat.
771, a certain quantity of land was appropriated to the
satisfaction of Virginia military land warrants, with a proviso
that if the land was not enough to satisfy the warrants, a
distribution should be made
pro rata in full satisfaction
of the warrants. Under it a dividend of ninety percent was
made.
In 1852, 10 Stat. 143, another act was passed providing for the
deficiency of ten percent, and directing the Secretary of the
Interior to issue land scrip in favor of the "present proprietors"
of any warrant thus surrendered.
A bill in chancery for an injunction to prevent the Secretary
from issuing the scrip to one of two claimants cannot be sustained.
The Secretary must decide, and then it becomes a chose in action,
upon which a court can act.
Moreover, in this case the complainant has not made out such a
case as to entitle him to relief.
The facts are stated in the opinion of the Court.
MR. JUSTICE GRIER delivered the opinion of the Court.
The purpose of this bill is to obtain an injunction to prevent
the issuing of certain scrip to appellee by the Land Office, and to
have cancelled the assignment under which the appellee had, by the
officers of government, been adjudged entitled to the scrip.
This bill was properly dismissed by the court below, as a brief
statement of the case will show. The Act of Congress of 3 March,
1835, made a further and apparently final appropriation of six
hundred and fifty thousand acres, to be applied to the satisfaction
of Virginia military land warrants. It provided that
"No scrip should be issued thereon until the 1st of September
following, and that warrants should be received in the General Land
Office till that day; and immediately thereafter, if the amount
filed exceeded sis hundred and fifty thousand
Page 62 U. S. 580
acres, the Commissioner of the Land Office should apportion the
said six hundred and fifty thousand among the warrants which shall
then be on file, in full satisfaction thereof."
This appropriation was sufficient to pay ninety percent of the
warrants received.
William S. Scott, as attorney for the heirs of General Charles
Lee, filed a warrant in their names for fifteen thousand acres,
which was surrendered and satisfied by the issue of land scrip for
thirteen thousand five hundred acres, being ten percent, or one
thousand five hundred acres less than the whole amount called for
on the face of the warrants.
The warrants were therefore fully satisfied, and, being
surrendered, were no longer evidence of any right of property. But
it seems that notwithstanding this surrender and satisfaction,
there was a sort of lingering hope or expectation that sometime
hereafter, Congress, by continued importunity, might be prevailed
upon to make some further grant of land to satisfy the shadow of
equity which was supposed to remain after the warrantees had
surrendered their warrants and accepted the satisfaction
tendered.
On the 30th March, 1837, Scott signed an instrument in form of a
power of attorney, which, after reciting that he had sold to
Walker, the complainant, the warrants and delivered him the scrip
issued in lieu thereof, stated as follows:
"Now the object of this power of attorney is to secure the said
Walker the said ten percent of warrants unsatisfied, or any and
every equivalent that may be at any time given in lieu
thereof,"
&c.
On the 18th of January, 1838, Scott conveys by indenture, in
consideration of seven hundred and fifty dollars, and with
warranty, the Lee warrants, on which he alleges there is "still due
one thousand five hundred acres" to defendant. At this time the
records of the Land Office contained no evidence of the prior
assignment (if such it can be called) to Walker, and a clerk in the
office endorsed on the respondent's deed as follows:
"William S. Scott, the party grantor of the within, has full
authority on file to sell the warrants and appoint a substitute,
and in the event Congress makes up the ten percent, the scrip to be
issued will be delivered to Mr. Smith. "
Page 62 U. S. 581
Thus the matter stood for fourteen years, when at length, on the
31st of August, 1852, Congress passed an act which authorized an
issue of land scrip in favor of the present proprietors of any
outstanding military land warrants, &c. This scrip is to be
issued by the Secretary of the Interior, who is to make the
necessary inquiries, and "be satisfied by a revision of the proof,
or by additional testimony," &c.
It seems that this act has been construed to include not only
unsatisfied warrants, but the ten percent not given on the
satisfied and surrendered warrants. It is a liberal construction of
the statute, and so far as it extends to the scrip in question, it
is a simple gratuity. The Secretary is made the agent for its
distribution. It is his duty to ascertain the parties entitled to
it, if any person can be said to have a title to a gift before it
is received. When he issues the scrip, it then becomes a "chose in
action," capable of being dealt with as property by courts of
justice, but not till then. The question as to who may be
considered as the "present proprietor" of these surrendered and
satisfied warrants must be decided by him in the first instance by
the rules, customs, and practice of the Land Office. Before the act
of Congress, this right was too subtle (being no more than the
remote expectation of a gift) to be dealt with by courts, and the
act of Congress has not conferred on them the distribution of their
bounty. Besides, if an injunction was issued to hinder the
defendant from receiving the scrip which the Land Office has
concluded to give him, this would confer no title on the
complainant.
Whether, after the Land Office have issued the scrip to a
claimant, another person alleging fraud or misrepresentation and
claiming himself to be the "proprietor" intended by the act might
not obtain the interference of the courts, to obtain a transfer of
the scrip to himself is a question not presented in this case.
But assuming that the Court would undertake to decide as to the
respective right of these claimants, treating their claims as
tangible equities, the complainant has not made out such a case as
would entitle him to relief. His power of attorney (or whatever it
may be called) mentions no consideration paid.
Page 62 U. S. 582
The answer of defendants, which is responsive to the bill (which
avers a purchase at market price), denies the payment of any
consideration whatever, and none has been proved. The defendant has
paid a large and valuable consideration without any notice of the
plaintiff's claim, has made his proofs, has had the decision of the
Land Office in his favor. He has obtained an advantage of which a
court of equity will not deprive him under the circumstances.
The judgment of the court below is affirmed with
cost.