could be no mistake about it; and this certificate was found of great practical convenience to Massie, who was relieved by it from the necessity of returning the warrant without an assignment, or the warrant with the assignment, to be preserved as evidence against him. The act of Congress, of March 3d, 1803, c. 343, which provided what evidence should supply the place of a warrant or certificate lost or destroyed, directed that a certified copy of the warrant or platt and certificate of survey, with satisfactory proof, by affidavit or otherwise, of the loss or destruction of the warrant or platt and certificate of survey, should be sufficient. The warrant never was in fact returned. No evidence was ever produced of its loss. Massie, in his affidavit made in 1806, in conformity with the provisions of this law, is silent as to the loss of the warrant, and confines himself to the platt and certificate of survey. It is by means of this certificate that the warrant was taken out of the office by mistake that the omission to return the warrant is supplied; although a careful examination of the whole documents would have shown that this certificate did by no means account for keeping the warrant back. It is thus demonstrated from the documents themselves, that the grant issued to Massie's heirs was upon incompetent and insufficient evidence. By depositing his warrant with the surveyor, and procuring it to be located, Jouitte did all he could to secure his own rights, and to prevent imposition upon others. The warrant no longer existed a mere float 1822. Bouldin V. Massie's Heirs. 1822. Bouldin V. Massie's ing evidence of a right to land, which circulated through the country, and upon which any person might forge an assignment, and thereby deceive and prejudice others. After the location, the warrant was no longer assignable until withdrawn; and it was by the unauthorized act of Massie, in withdrawing the warrant, that it was again in a condition to be assigned. The owner of a warrant, who has thus acted, stands in a situation different from one who has not thus been careful. From him and his representatives the same degree of proof ought not to be required of a forged or unauthorized assignment, as might properly be exacted from one whose warrant by his own act, or his own neglect, was thrown afloat into the market. Indeed, it is deemed doubtful, whether, after the owner had entered the warrant, and thus put an end to its assignable character, that character could again be restored by the unauthorized act of another. Upon the whole, we insist that the evidence does not make for the defendants even a prima facie case of assignment; that when its competency and effect are examined by settled principles of law, it amounts to nothing of consequence, there is nothing for the plaintiffs to disprove. The right of their ancestor is vested in them, and they must recover. Mr. Doddrige and Mr. Scott, contra, stated, that whether the burthen of proof of the assignment be cast on the respondents, who claim under it, or the appellants, who deny it, was a question of vast importance to those who hold lands any where under the laws of Virginia. The cases cited from the Kentucky Reports furnish precedents in favour of the respondents, especially as the proofs of the assignments claimed were yet in being, which is not the case here. It is insisted, on the other side, that the evidence of the contract of assignment ought to be written on the warrant, or on some paper attached to it; inseparably attached to it, to use the language of the counsel. A warrant for land under the Virginia system may strictly be termed a chose in action. It is the mere evidence of executory contract between the State and a citizen. Bounties in land had been promised to the army, by various laws, as a reward for military services. Where the services were performed, the relation between the parties was that of debtor and creditor. It is immaterial whether the debt thus created was payable in money, or in land at a particular place, and at a future time. When, by the act of 1779, warrants for the bounties were created, like all other evidences of debts due from the State, they would have been subject to the policy of the common law, and not assignable, but for the policy of that act. The statute made warrants and the certificates of survey assignable; but the words "shall have right to assign and transfer warrants and certificates of survey for lands," do not import any particular mode of assignment. They give to the document its assignable quality, leaving the parties to choose their own mode of evidencing the contract. Whether they adopt the ancient policy of the common law, requiring all assignments to be made by deed of indenture, or the more easy mode of endorsement or 1822. Bouldin V. Massie's 1822. Bouldin V. Massie's Heirs. delivery, seems to be quite immaterial. If proof of an assignment on paper, either attached to the writing or not, were now required, the rights of assignees would, at this time fail for millions of acres : for, if positive proof of an assignment must be made, in all cases, by those claiming under it, the mere ink and paper importing the assignment would not be sufficient. Proof of the execution would be required: in a great majority of cases, it could not be produced. These papers passed from hand to hand like coin; they were owned by all classes of people; as well by the poor and illiterate, as by men of business. Warrants, in many cases, were left with the principal surveyors, for safe keeping, and a letter addressed to him from the owner, to let another have so many acres of warrant, was received as sufficient authority to make an entry for the assignee. These letters could be produced in but few cases; but if required at all, the mere production would not be evidence. Proof of the handwriting would be called for on the appellant's principles. As to the cases cited from the Kentucky Reports in one of these, an assignment was endorsed; in the other a breach of trust existed. As against the patentee or those claiming under him with notice, proof was admitted, in the one case, that the assignment was a forgery; in the other, that the confidence of the owner was abused. But this proof was given by the owner of the warrant, not by the claimants under the patent. In these cases the nature of the claim could yet be traced; in ours it cannot. From these cases, and the reason of the thing, it is evident that the patent is prima facie evidence of all that was necessary to its emanation. Indeed, it seems to be admitted on the other side, that it has been so decided. But this admission is qualified. It is insisted that where the patent office contains the warrant, assignment, and survey, all in regular order, there claimants of the warrant will be held to disprove the derivative claim. If this be the rule, the patent is but prima facie evidence of its own existence only, and of nothing necessary to its existence. This notion is fanciful, but not sound. The patent is prima facie evidence of an assignment, or it is not. If it is prima facie evidence, the appellants must wholly fail. We have a patent to Massie's heirs, and which they claim legally, and the other defendants, at least, equitably, (for we are in a court of equity,) and the appellants have no proof. The act of 1809, referred to by the appellants' counsel, gives him no aid. It recites that assignments were sometimes made in a loose manner, and that there was a consequent hazard in granting exchange warrants; and its provisions are prospective, and all of them are merely directory to the register. But if the claimants are held to the proof of an assignment, in fact, they have made that proof. Anderson states that he came into office in July, 1784, the commencement of the official duties in Kentucky; bas ever since held the office. At the commencement, a few entries were made by another person; in 1812, eight or ten by his daughter, while he was sick; and for some reason, not explained, about as many more, by his son, in 1814. With these exceptions, every 1822. Bouldin V. Massie's Heirs. |