John Catron

“ The deed from Fosgit to Spencer was offered in evidence in the Circuit Court, on behalf of the defendants, and was objected to:
1st. Because it is void on its face, being in violation of the acts of Congress touching the subject of bounty land for military services, and against the policy of the United States on that subject.
2d. Because said writing, on a fair legal construction of its terms, conveys no legal title (and indeed no title at all, of any kind) to the lands in question; and
3d. Because said writing is irrelevant, and incompetent as evidence in this cause. ”

“ The fiction of relation is, that an intermediate bona fide alienee of the incipient interest may claim that the patent inures to his benefit by an ex post facto operation, and receive the same protection at law that a court of equity could afford him.
4. We hold that, on another ground, the instruction was clearly proper.
Here, the after-acquired naked fee is set up to defeat Fosgit's deed, made forty years ago in good faith, for a full consideration, and to oust the possession of Spencer's heirs, holding under that deed. ”

“ The act of Congress orders the warrants to be delivered to the respective owners, to be located by them; whereas the common soldier, provided for in the acts of 1811 and 1812, did not receive his warrant, but the Government bound itself to locate the land at its own expense. Congress may have thought it not at all necessary to guard the Canadian volunteers against being overreached by speculators, and deprived of their bounty lands. ”

“ The court overruled the objections, and permitted the defendants to give the writing in evidence, and instructed the jury that it was a complete defence to the action; to all of which the plaintiff excepted. ”

“ It will be an easy matter to show that no such presumption can be indulged in this case, if that question shall ever arise. There is nothing to base it upon. It is not shown that twenty years have elapsed since Fosgit was in a condition to execute the agreement to convey.
3 Phill. on Ev., Cow. and Hill's Notes, 505, and cases cited.
Nor that he ever knew that the legal estate had passed to him by the issuance of the patent, or that, after his death, his heirs ever knew it. The disability and ignorance of the party always repel presumptions. ”

“ One that cannot be departed from without assuming on part of the judicial tribunals legislative power. It is, that where the Legislature makes a plain provision, without making any exception, the courts can make none. McIver v. Reagain, 2 Wheaton, 25; Patton v. McClure, Martin and Yerger's Ten. R., 345, and cases cited; Cocke & Jack v. McGinnis, ib., 365; Smith v. Troup, 20 Johns., 33. We are therefore of the opinion that Fosgit could sell and convey the land to Spencer after the entry was made.
2. The next ground of objection to the deed is, that it conveys no title when fairly construed. ”