Massie's
Heirs.

entry on his records was made by himself. All those

They were all directed him agent at first, but Before the 27th Janua

on Jouitte's were so made.
y Massie. He considered
never saw a written power.
ry, 1795, Massie produced a written assignment, on
which he made the entry in question of that date.
He further states, that on the 14th June, 1797, he
delivered the assignment and warrant to Massie, with
the survey in question.

An attempt is made to discredit this testimony by
its intrinsic demerits. It is said to be wonderful, that
he should not recollect whether there were any wit-
nesses to the assignment, what its date, and when
delivered to him. But the assignments in his office
are so numerous, that if at the distance of twenty-
two years he should feign to recollect such particu-
lars, that would, indeed, discredit him. It is further
objected to him, that he states that he never, but in
one instance, made an entry for an assignee, without
having the assignment, and that was not in the pre-
sent case; and that he pretends to recollect delivering
out the warrant in question, to whom and when. But
it is to be remembered, that upon delivering out offi-
cial
papers, entries are made, which assist the memo-
ry. As to the particular case of an entry, without
an assignment, it would be strange if he did not re-
collect it. That was the only case in an official life
of nearly forty years in which he suffered such an in-
discretion to pass him. He was uneasy about it, and
made immediate inquiry of the owner.
The attempt
to discredit Anderson, from his own examination,
therefore fails.

So much for Anderson's testimony under the commission. Is it supported or defeated by the official evidence?

Of such

Some apparent confusion occurs, which is cleared up by an attention to dates. His second certificate relates to the first transaction in point of time. It was his practice to forward the assignment with the first survey, in order that they might lay in the patent office, to be referred to when other surveys should be returned: and called thence a reference paper. The warrant with the last. But he delivered both the assignment and warrant to Massie, with the survey in question, being the first, which, as to the latter, was a mistake. It was not recollected that one or more surveys were yet to come. delivery an entry is made. The time and the occasion can, therefore, be recollected. If our hypothesis be right, Massie may be well supposed to have delivered all the papers into the War Office, when they were destroyed by fire on the 8th of November, 1800. After the destruction of the War Office, the surveyor is applied to for the last survey of 851 acres ; then it was that the warrant should have been delivered with the survey. But the warrant was not found, and the memorandum book would show what had become of it. He could not refer to the assignment or warrant as reference papers, for they were destroyed. He, therefore, states what was the amount of the assignment, and that the warrant was taken from his office, by mistake, on the 14th of June, 1797. On these papers a grant issued for the 851

1822.

Bouldin

V.

Massie's

Heirs.

Heirs.

acres. Although Anderson might have stated in his certificate by whom the warrant was taken, and on what occasion, the omission to do so is unimportant. By a law of Congress, patents can be had upon lost papers, by taking a copy of the warrant from the Register, or a copy of the platt and certificate from the surveyor, and satisfying the officer of the loss of the papers by his own oath, or otherwise. Massie made affidavit on the copy of the platt and certificate, that the original, of which that was a copy, had been filed in the War Office, and that it had been lost or destroyed. The omission to state that the warrant and assignment accompanied the plat, and were destroyed with it. He got them all in order to procure a patent. It was his interest to file them; and it is incredible that he did not.

But supposing the assignment not to be clearly proved, the Court will presume one from the circumstances, in order to support the possession.

On the subject of such presumptions, generally, reference may be had to the authorities cited in the argument of another cause at the present term." To these may be added some of the decisions in the local tribunals. Thus the Court of Appeals of Virginia have determined that, though the presumption arising from the lapse of time may be repelled by circumstances, yet those circumstances must be clearly proved, which, in the present case, they are not." By the law of Virginia, a person owning lands on one side of a stream, and desiring enough of the

lands of another on the opposite side, against which to abut his dam, may acquire it contrary to the will of the owner. He procures a writ from the County Court in nature of a writ ad quod damnum, to value the land. The law provides, that upon paying that value, the party shall be seized of the land condemned. In the case in question, the condemnation had taken place in 1777. The money had not been paid; the land had been sold; possession had gone with the condemnation, and a mill had been built. The statute period of limitation had not elapsed, yet the Court presume the fact of payment: the very fact which devests one man and invests another with the inheritance." In another case a testator had appointed several executors, and impowered them to sell. Some had qualified, and some had not. They who qualified, sold and conveyed. Time had not elapsed to bar a writ of right. The case was decided under the stat. 21 Hen. VIII. c. 4. The deed was absolutely void; it passed no estate in law or equity, unless it appeared that the other executors had renounced. The Court determined that the renunciation was a fact, which admitted of proof in pais as well as by record; but that in favour of the possession it might be inferred from circumstances."

The presumption sustained in the cases quoted, vastly exceeds what is required in ours. In our case

the circumstances are unanswerable.

The appellants cannot rely on any supposed difference between an imperfect legal title and an equitable one, as to the question of either presumption or

a Young v. Price, 2 Munf. 534. b Giddy v. Butler, 3 Munf. 345.

1822.

Bouldin

V.

Massie's

Heirs.

1822.

Bouldin

V.

Massie's

Heirs.

abandonment. If a warrant creates nothing but an equitable interest, and an entry upon it an imperfect legal one, then Jouitte never had more than an equity. He never had an entry unless the testimony of Anderson be sufficient to establish an agency. Give but credit to that testimony, and both agency and assignment are established.

As to the defendants, who have not admitted the appellants' derivative claim, the decree must be affirmed at all events, unless the documents from Albemarle County Court are sufficient to establish the character of Alice as heiress. Let this be conceded for argument sake; then what are they? Documents made ex parte, and received by usage only in Virginia, for the direction of the Register of the land office. If this evidence can establish a derivative title, ours filed in the land office for the direction of the commissioner, are of equal authority to support our derivative title. A fortiori, as ours grew into use, not by custom merely, but by act of Congress.

Mr. Hammond, for the appellants, in reply, stated, that it had been insisted by the respondent's counsel, that as it is shown in the bill that the complainants never abandoned the first original entries, they cannot claim the land in question, because, if entitled at all, it is to the lands upon which the first location is made. If this were correct, it would follow that the warrant might actually appropriate double the amount of land that it called for. The complainants would hold the first location, and the defendants that where the warrant is patented. This absurd consequence