the hands of the pretended assignee, after the grant, or in the hands of the purchaser with notice. 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 cir cumstance. 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 an equitable right to the warrant ; a right which a Court of law would respect, and a Court of equity enforce; a 1 Hardin, 37. 4 Bibb, 447, 1822. Bouldin V. Massie's 1822. Bouldin V. Massie's 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 transferied 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 evidence might be insufficient or fabricated, the law required the preservation of the warrant itself, that with it this evidence might be preserved. Lest by exchanging the warrant this evidence should be lost, and the relative rights of the parties changed, or otherwise affected, the provisions just recited were enacted. In this case, the warrant never was so assigned or transferred, as to vest a legal interest in Massie, 1822. Bouldin V. Massie's 1822. Bouldin V. Massie's Heirs. and it certainly cannot be incumbent upon the complainants to disprove that which does not exist. Had an assignment of any kind, subscribed with Jouitte's name, been endorsed upon the warrant, there would be something to which the complainants could direct their proof. They might attempt to negative the fact, that Jouitte had actually subscribed the paper; and the actual existence of such endorsement might be considered, at least after the grant issued, as prima facie evidence that it was genuine. But this presumption cannot be raised, without some foundation for it to rest upon. Where the assignment is made upon a separate paper, as is claimed here, the defendants must establish the existence of this assignment, before it can avail them any thing. When the existence of such separate assignment is established, its genuineness and operative effect are to be examined. The deposition of Anderson does not sufficiently prove that any such assignment ever existed. He evidently testifies, not from any distinct recollection of the fact, but from a knowledge of what ought to have existed to justify him in allowing entries in Massie's name as assignee. His testimony is as to the general course of business in the office, from which he infers that an assignment must have existed. And when the defendants put the question direct as to the character of the assignment, whether endorsed upon the warrant, or made on a separate paper, his answer is not positive as to the fact; but is clearly an inference from other facts. ❝ On a separate piece of paper, I presume, as the entries in the first instance were in Jouitte's name." This presumption, deduced by the witness from the fact that the warrant was deposited in the office by Jouitte, unassigned, and various locations made upon it in the owner's name, is but slender evidence upon which to establish any fact. The foundation on which the witness makes this presumption is before the Court. Can it be said that the inference is of that irresistible character that amounts to proof? If the witness were present, his testimony could not be received as competent to establish the fact that such paper existed, unless he were able to state, and did state, that he had such knowledge of Jouitte's handwriting as, upon well settled principles, would enable him to testify to it. Nothing is shown in his deposition of his knowledge of Jonitte's handwriting. For this reason alone his testimony is inoperative. Were the existence of the paper clearly established, its contents and effect could not be proved, without first proving its loss. The testimony shows that this assignment was delivered to Massie. It is thus traced to his possession. His own affidavit, made with a view to obtaining the grant for the lands in question, is wholly silent as to its loss or destruction, and there is no evidence what has become of it. In such case it is not competent for the defendants to prove its contents. The testimony of Anderson is liable to some exceptions. He is positive that he never made but one entry without an assignment of the warrant; that Jouitte's first entries were made by Massie; that the assignment was taken out of the office with the platt 1822. Bouldin V. Massie's Heirs. |