Conflicting Claims to Land-Construction of Act Feb. 19, 1831. CONFLICTING CLAIMS TO LAND-CONSTRUCTION OF ACT OF FEBRUARY 19, 1831. The third section of the act of the 19th of February, 1831, does not confer the right of purchase and consequent title to the widow and children of A. Follin, deceased, to the exclusion of his assignee, claiming under the provision of the second section of the act of February, 1831, and 19th of February, 1833. OFFICE OF THE ATTORNEY GENERAL, December 5, 1835. SIR: In your communication of the 28th of October last, after referring to me sundry papers relating to the conflicting claims of the assignee, and of the widow and heirs of A. F. Follin, deceased, recently pending before the register at Demopolis, you request my opinion on the following question, supposed to be involved in that case: "Does the 3d section of the act of the 19th of February, 1831, confer the right of purchase and consequent title to the widow and children of A. Follin, deceased, one of the persons who became entitled to an allotment of land under the act of Congress approved 3d of March, 1817, and contract made in pursuance thereof, to the exclusion of the assignee of Follin, claiming under the provision of the 2d section of the act of February, 1831, and 19th of February, 1833, but who was not in the actual occupancy and cultivation of the land in controversy at the time of the passage of the act of 1831?" I have looked into the several acts of Congress referred to, and, after a careful examination of their various provisions, am of opinion that the question proposed by you must be answered in the negative. Although the act of 1817 declares that no patent shall be granted for the lands, nor any title be obtained therefor, either at law or in equity, until complete payment shall have been made for the whole four townships, and until the parties comply with the conditions of the contract authorized to be made under that act, yet, as soon as the contract was duly made, and the first conditions complied with, so far as to entitle any person to an allotment in the tract set apart by the Secretary of the Treasury, such person acquired an interest in the lands allotted to him. As it could make no difference to the government by what individual the conditions were fulfilled, pro Payments to Executors who have Assigned. vided they were faithfully executed, I perceive no reason to doubt that the interests thus acquired were assignable. They are accordingly so treated in the 1st and 2d sections of the act of 1831. The 3d section of that act must be construed in connexion with the two former; and, to be consistent with them, we must understand the section either as not particularly limited to the person who becomes originally entitled to the allotment, or, if it be so limited, then as not extending to those who had assigned their interests. If the former of these constructions be adopted, then the section does not apply to the present case; because, though Follin, the original proprietor, is dead, without having performed the conditions, his assignee is not. And if the other construction be adopted, then also is the section inapplicable; because, there was in this case an assignment by Follin in his lifetime. On the construction which I have thus given to the act of 1831, there is nothing in that act which, under the circumstances of the case, as assumed in your question, can confer the right of pre-emption on the widow and children of Follin; and if this be so, then the act of the 19th of February, 1833, is, when taken in connexion with the former law, decisive of the question proposed to me. It is, perhaps, scarcely necessary to add, (though I do it, to prevent any misconception in this respect,) that this opinion is given on the above question as you propose it, abstractly, and on the supposition that all the facts assumed in it are essential parts of the case referred to me. I am, sir, &c., &c., B. F. BUTLER. To the SECRETARY OF THE TREASURY. PAYMENTS TO EXECUTORS WHO HAVE ASSIGNED. Where there is a conflict of claims between an executor and his assignees for an OFFICE OF THE ATTORNEY GENERAL, SIR: I have considered the documents referred to me with your letter of the 27th ultimo, in relation to the conflicting Endorsees and Holders of Treasury Drafts. claims of the executor of George Stiles, deceased, and the assignees of such executor, to the moneys awarded by the Third Auditor of the Treasury, under the acts of Congress and resolution therein referred to. The executor, being the "legal representative" of the owner, is prima facie the person entitled to receive the money from the government; and though, in all such cases, where assignments have been made in apparently due form, and no objection is made to the right of the assignee, it would be proper to make payment to the assignee; yet, whenever the validity of the assignment is impeached, and conflicting claims exist, it is undoubtedly the safest course to pay to the person legally entitled, and to leave all parties having equitable claims to their appropriate remedies in the courts of justice. Whether, in the present case, it might not be just to retain the moneys until the parties claiming under assignments from Mr. Stiles can have opportunity to obtain the decision of a competent tribunal on the validity of their claims, is a question of discretion, which it belongs exclusively to your department to determine. I am, sir, &c., &c., To the SECRETARY OF THE TREASURY. B. F. BUTLER. ENDORSEES AND HOLDERS OF TREASURY DRAFTS. If a third person receive a treasury draft, in due course of business, for a valuable consideration, with proper endorsements, and without suspicion that the payee, or any bearer thereof, parted with it unlawfully or improperly, he has a claim upon the government for its amount. But if such third person have any notice that the draft was issued for public purposes, and intrusted to an individual to present at the bank and receive the money thereon for the army, and had lost it by gambling, or some similar misconduct, such notice defeats his claim upon the government. OFFICE OF THE ATTORNEY GENERAL, SIR: It appears, from the papers accompanying your letter of the 16th instant, that, on the 2d of September, 1834, two warrants were drawn in due form by the Secretary of the Trea Endorsees and Holders of Treasury Drafts. sury on the Treasurer of the United States-the one requiring him to pay to Lieutenant R. D. C. Collins, assistant quartermaster at Fort Gibson, Arkansas, or order, the sum of $1,500; and the other requiring him to pay the same officer, or order, the sum of $1,000. At the foot of these warrants, drafts were drawn by the Treasurer on the cashier of the Union Bank of Louisiana, at New Orleans; each directing him to pay "the above warrant agreeably to its tenor." These warrants and drafts, after having come to the hands. of Lieutenant Collins, were each of them endorsed by him in blank, in the following manner: "R. D. C. Collins, lieutenant, assistant quartermaster;" and thereupon delivered by him to Lieutenant Johnson, also an assistant quartermaster, for the purpose of being taken by him to the city of New Orleans, and there collected for the public service, with other similar warrants and drafts payable to his own order. Johnson, on his journey, fell among gamblers, who won from him about $12,000 in public warrants and drafts, including, among others, the two above described. Information of this fact being received by the quartermaster's department, payment of the drafts in, question was stopped at the bank. L. C. Morrill, of Arkansas, who is now the holder of the two drafts above mentioned, and who alleges that he received them "in a fair business transaction, and paid the full amount thereof," having caused them to be presented at the bank, and not receiving payment thereof, now applies therefor to the department; and in this state of facts, you ask whether, in my opinion, the United States are liable for the payment of these drafts? Instead of making any positive reply to this question, (which, for the want of full information in regard to the usual manner of transmitting such drafts, and more especially as to the time when, and the circumstances under which, the drafts in question were received by Mr. Morrill, I cannot now give,) I will state the general principles of law by which, as I suppose, cases of this sort must be governed; leaving it to the department to apply them to the facts of this case, when they shall come to be sufficiently ascertained. The drafts being payable "agreeably to the tenor" of the warrants to which they were subjoined, which warrants were Endorsees and Holders of Treasury Drafts. payable to order, must, as I conceive, be regarded in the same light as ordinary checks on a bank payable to order, and negotiable by endorsement merely; unless, by the general practice of the treasury, and of the deposite banks, some special formality is required for their negotiation. I have no reason to suppose that any such formality is required; and if not, then the endorsement of Collins, the payee, would have been sufficient to authorize the payment to Johnson, for the use of the United States; and it would also have been sufficient to transfer the title in the drafts to any third person receiving the same from him in good faith and for a valuable consideration. The gamblers to whom the drafts were passed by Johnson could not recover the amount, because they received them on an illegal consideration, and from a person who, as they must have known, had no authority to pass them away, except for the public service. But a third person, who may have received these drafts fairly, and on good consideration, without notice of the misconduct of Johnson, or of the illegality of the transfer, will, if the endorsement was in the usual and proper form, be entitled to demand the amount of them. In such a case, the law prefers that, of two innocent persons, the maker of the draft, who, by his own negligence or undue confidence in the payee, enabled him to put the draft afloat, should sustain the loss, rather than the innocent purchaser. It is only necessary to add, in regard to notice, that any circumstance which is sufficient to put a party on inquiry, or to excite suspicion in the mind of a person of ordinary care, as to the validity of the endorsement, will in law be constructive notice, and sufficient to defeat the title of the holder. Whether anything of the kind exists in this case, does not appear from any of the documents before me; but I should think it very proper to look narrowly into the matter before payment is directed to be made. I am, sir, &c., &c., To the SECRETARY OF WAR. B. F. BUTLER. |