ment 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 life-time of Jouitte, his averment that the assignment was placed in his office, and taken out with the platts 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, 1822. Bouldin V. Massie's 1822. Bouldin V. Massie's 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 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. 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 circumstanstance 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 platt and certificate of survey, to Massie, on the 14th of 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 1822. Bouldin V. Massie's 1822. Bouldin V. Massie's 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 life time, 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, nor 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 war rant. 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 transferrable. It is obvious that the transfer, if no law forbid 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. 1822. Bouldin V. Massie's Heirs. |