Bouldin v. Massie

• Decision Date: 01 February 1822
• Citation: 5 L.Ed. 414,7 Wheat. 122,20 U.S. 122
• Parties: BOULDIN and Wife v. MASSIE'S Heirs and Others
• Court: U.S. Supreme Court

20 U.S. 122

5 L.Ed. 414

7 Wheat. 122

BOULDIN and Wife v. MASSIE'S Heirs and Others.

February Term, 1822

APPEAL from the Circuit Court of Ohio.

This suit was brought by the appellants, who were plaintiffs in the Circuit Court, to obtain a conveyance for twelve nineteenths of a tract of land lying in the state of Ohio, containing 1900 acres, for which a patent was issued in December, 1814, to the defendants, the heirs of Nathaniel Massie. The other defendants were purchasers from him. The survey on which the patent was founded was made as to 1200 acres, part thereof on a military land warrant No. 2675, granted by the Commonwealth of Virginia, to Robert Jouitte for 2666 2/3 acres of land, of which 2051 2/3 acres were alleged to have been assigned to Nathaniel Massie by Robert Jouitte. The plaintiff Alice claimed as heir of Robert Jouitte, and denied this assignment: on the existence and valididity of which the whole cause depended. The assignment itself could not be produced, and was supposed by the defendants to have been consumed with the other papers of the war office, in November, 1800. Under these circumstances, the defendants insisted that the patent was prima facie evidence that every prerequisite of the law was complied with; and that satisfactory and legal proof of the assignment was made; and they relied on the testimony in the cause as supporting, instead of weakening, this presumption.

The plaintiffs contended that the papers filed in the Land Office did not justify the emanation of the patent; and that the absence of the assignment, and of any proof of its destruction, justified their requiring from the defendants the most complete proof of its existence and loss.

The papers on which the patent issued, were a copy of the original warrant, a copy of the platt and certificate of survey made in the name of N. Massie, as assignee, on the 24th of December, 1796, and recorded in the surveyor's office on the 9th of June, 1797, to which were annexed the following certificate and affidavit: 'I do certify that the within survey was made on 1200 acres, part of warrant No. 2675, (Jouitte's warrant;) 403 acres, part of warrant No. 3398; and 277 acres, part of warrant No. 2642. The warrants No. 2675 and 3398 were taken out of this office the 13th day of June, 1797, with the original survey, of which this is a duplicate; warrant No. 4675 was taken out the 14th day of March, 1799; and that the said warrants had not been satisfied prior to the date on which they were taken out of this office, and that so much of each warrant as is contained in this survey, at least, was assigned to said Massie.

Given under my hand and seal of office, this 20th day of April, 1802.

Richard Anderson. L. S.

State of Ohio, Ross county, ss.

Personally appeared before me, Joseph Taylor, a Justice of Peace in and for the county aforesaid, Nathaniel Massie, who made oath, that the original survey of which this is a duplicate, was lodged in the office of the Secretary of War for the purpose of obtaining a patent prior to the 8th day of November, 1800, and that the same has been lost or destroyed.

Given under my hand and seal this 16th day of

January, 1806.

Joseph Taylor. L. S.

The testimony of Anderson was taken in the cause for the purpose of proving the assignment from Jouitte to Massie, and the substance of his evidence will be found in the opinion of the Court. In confirmation of his testimony, the defendants also relied on a grant made to Massie, on the 2d of January, 1802, on a survey made the first 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 205 and 2/3 acres, part of Jouitte's warrant.

A decree, dismissing the plaintiff's bill, was entered by the Circuit Court, pro forma, by consent, and the cause was brought by appeal to this Court.

Feb. 21st.

Mr. Hammond, for the appellants, argued, that the defendants stood in the same situation that Massie was at the time he made the sales, and it was incumbent upon them to prove the assignment of the warrant to Massie.

In every case, the person claiming as assignee, must establish his right by proof. If the endorsee of a promissory note, bill of exchange, or other writing made assignable at law, sue in his own name upon such note, bill, or writing, he cannot recover without making proof of the assignment. The person who claims to be the assignee of a warrant or platt and certificate of survey, until after a patent is issued to him, cannot assert in his own name, against third persons, a right arising under such warrant or survey without proving his purchase. Kerr v. Watts, 6 Wheat. 550. If this is the law where the original owner asserts no claim, and is no party before the Court, there is much stronger reason that it should be so when such original owner is pursuing his right in the hands of a third person, whose claim he contests. It has, indeed, been decided, that when a grant once issues, such grant is prima facie evidence that every intermediate act necessary to authorize the emanation of the grant has been regularly transacted. Polk's lessee v. Wendell, 9 Cranch, 87. Ross v. Reed, 1 Wheat. Rep. 482. 487. 6 Wheat. Rep. 293. But that was at law, and the Court, in the opinion delivered, plainly intimate, that the fact, whether the incipient right had actually been assigned, might be contested in equity. Upon whom the burden of proof should rest, in such a case, is not noticed.

But the Kentucky Court of Appeals has decided, that where there had been no actual assignment of the warrant, the owner might recover the lands in the hands of the pretended assignee, after the grant, or in the hands of the purchaser with notice. 1 Hardin 37; 4 Bibb 447. And they seem to have required the claimant to adduce proof that no assignment ever was made. In these cases, the assignment was actually endorsed upon the warrant, which it is conceived is a material circumstance.

Warrants for land, and plats and certificates of survey were not assignable upon the principles of the common law. They were subjects of contract, and might be sold and purchased: but without the aid of statutory provisions, the purchaser could not have acquired an absolute legal interest in them. The first statute of Virginia, that provided for granting land warrants, and executing surveys, enacted that 'all persons, as well foreigners as others, shall have a right to assign and transfer warrants and certificates of survey for land.' To assign or transfer, that is, to vest in the purchaser an absolute legal title to the warrant or platt and certificate of survey, can only be done by endorsing such assignment or transfer upon the warrant or platt itself, or by making it in writing, and attaching such writing to the document transferred: so that the subject assigned or transferred, and the act of assignment and transfer shall be inseparable. The owner of a land warrant may sell it, either by parol or written contract. Such sale would vest in the purchaser in equitable right to the warrant; a right which a Court of law would respect, and a Court of equity enforce but it would not constitute him the legal owner. It would not operate as an absolute assignment or transfer of the legal ownership. So the obligee of a bond, made assignable by law, may dispose of it by contract; but if no assignment be endorsed upon it, or absolutely attached to and connected with it, the purchaser, it is conceived, could not sustain an action upon it in his own name as assignee. He would be compelled to sue in the name of the original obligee, and upon establishing his purchase, a Court of law would so far respect it as to preclude the nominal plaintiff from interfering to control the suit.

This position is sustained by the subsequent legislation of Virginia on this subject. Provision was made by law for returning warrants in part located, or otherwise, and receiving new warrants in exchange. The propriety of issuing new warrants to assignees where the name of the original owner was merely endorsed on an assignment executed without the attestation of witnesses, was doubted. To provide for this case, the act of the Virginia Assembly of February, 1809, was enacted. It recites the provision authorizing the assignment of warrants in general terms, and that there are 'many warrants outstanding which have been transferred, sometimes by the mere endorsement of the names of the holder, and at others by assignment without attestation, and doubts have arisen whether, in such cases, it would be proper for the register of the land office to grant to the present holders new warrants, in exchange for the warrants so transferred and assigned. It then directs, hat in such cases new warrants may be granted in exchange, provided always that no such exchange shall be made, unless the applicant therefor shall have previously annexed to such warrant his own affidavit, stating that so far as he knows or believes, the endorsements or assignments appearing on such warrant have been made fairly and bona fide, and that he, or those in whose name or names such exchange is sought, is or are the true and rightful proprietor or proprietors of such warrant.' The act provides that this affidavit, with the original warrant, shall be preserved, and that the right of the original owner, or other, to the original warrant, shall not be affected by this proceeding. And it directs, that thereafter warrants shall only be assigned by written assignment on the back, attested by two or more witnesses. It is insisted that the framers of this statute recognised no mode of assignment, to vest a legal interest, in the warrant, that existed distinct and separate from the warrant itself. They contemplated that in every case the warrant should carry with it the evidence of ownership. And because in all transactions with third persons, claiming to be owners, the...