1822. Bouldin Massie's Heirs. It may be doubted whether the act of the 10th of 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 9th, 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, any thing 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. 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 the 3d of March, 1803, c. 343, it is enacted, that "where any warrants granted by the state of Virginia for military services, have been sur 1822. Bouldin V. Massie's 1822. Bouldin V. Massie's veyed on the north-west side of the river Ohio, between the Scioto and the Little Miami Rivers, and the said warrants, or the platts 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 platt 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 platt 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 the 30th of 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 the 28th day of 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 dupli cate 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 north-west side of the Ohio, on the 1st day of 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 the 19th day of November, 1784, (he thinks by Robert Jouitte himself,) and that the witness made 1822. Bouldin Massie's Heirs. 1822. Bouldin V. Massie's 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 on 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 the 27th of 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 it was attested by a subscribing witness. It was lodged in his office by Nathaniel Massie, and taken out with the platt and certificate of survey of the assigned part of the warrant, by him, on the 14th of June, 1797. In corroboration of the testimony of Anderson, the defendants rely on a grant made to Massie, on the 2d of January, 1802, on a survey made the 1st 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 2051 acres, part of Jouitte's war rant. 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 assign |