US SUPREME COURT DECISIONS

The patent issued on a military warrant under the law of Virginia, is prima facie evidence that every prerequisite of the law was complied with.

The loss of a paper must be established before its contents can be proved, but where the patent issues upon an assignment of the warrant and the legal title is thus consummated, the assignment itself being no longer a paper essential to that title, the same degree of proof of its existence cannot be required as if it were relied on as composing part of the title.

Where there is a strong degree of probability that the assignment has been lost or destroyed through accident, its nonproduction by the party claiming under it ought not to operate against him so as to defeat his legal title.

The original law of Virginia which authorizes the assignment of warrants did not require that it should be made by endorsement or by an instrument annexed to the warrant. chanrobles.com-red

Page 20 U. S. 123

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 1,900 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 1,200 acres, part thereof on a military land warrant No. 2675, granted by the Commonwealth of Virginia to Robert Jouitte for 2,666 2/3 acres of land, of which 2,051 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 validity 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 chanrobles.com-red

Page 20 U. S. 124

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 plat and certificate of survey made in the name of N. Massie, as assignee on 24 December, 1796 and recorded in the surveyor's office on 9 June, 1797, to which were annexed the following certificate and affidavit:

"I do certify that the within survey was made on 1,200 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 13 of June, 1797, with the original survey, of which this is a duplicate; warrant No. 4675 was taken out 14 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."

chanrobles.com-red

Page 20 U. S. 125

"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 8 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 2 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 27 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. chanrobles.com-red

Page 20 U. S. 147