THIS case was brought up by writ of error from the Circuit Court of the United States for the district of Indiana.
It was an ejectment brought by French and wife, to recover an undivided half of three hundred and twenty acres of land in the county of Vigo, in Indiana.
Upon the trial, the evidence offered by the plaintiff was as follows:
1. Evidence that one Silas Fosgit, who had been a Canadian volunteer in the army of the United States in the last war with Great Britain, had died between the 28th of June, 1816, and the 29th day of June, 1823, and that his only heirs at law were Minerva French, (wife of said William C. French,) residing in the State of Michigan, and one Aruna Fosgit.
2. A copy of a patent, dated on the 26th of October, 1816, to Silas Fosgit, for two quarter sections of land in the district of Vincennes.
The evidence offered by the defendants was as follows:
1. The original patent above mentioned, which had been deposited by one Abraham Markle with George Horner in 1817, who delivered the same to the defendants in 1854.
2. Evidence that they were the only children and heirs at law of one William H. Spencer, sen., who died in 1852, and also that the warrant was located upon the lands in dispute, by Abraham Markle, on the 3d of June, 1816.
3. The deed or assignment from Fosgit to Spencer, duly proved. As the court considered this assignment sufficient to convey the land, it may be as well to insert it, viz:
'Whereas I, the undersigned, Silas Fosgit, late a private in the corps of Canadian volunteers, commanded by Lieutenant Colonel Joseph Wilcox, deceased, lately in the service of the United States of America, according to the provisions of an act of Congress of the United States of America, passed March 5th, 1816, entitled 'An act granting bounties in lands and extra pay to certain Canadian volunteers,' having applied for, have obtained a warrant, issued by the Secretary of the Department of War, for the location of three hundred and twenty acres of land within the Indiana Territory, agreeably to the directions of said act:
'Now, know all men by these presents, that I, the said Silas Fosgit, for and in consideration of the sum of five hundred dollars to me in hand paid by William H. Spencer, Esquire, of Genesee, in the county of Ontario, and State of New York, the receipt whereof I do hereby confess and acknowledge, have assigned and set over, and by these presents do grant, bargain, sell, transfer, assign, and set over, to said William H. Spencer, his heirs and assigns, forever, the said three hundred and twenty acres of land; to have and to hold the same, in as full and ample manner as I, the said Silas Fosgit, my heirs or assigns, might or could enjoy the same by virtue of the said warrant or otherwise. And I do, for myself, my heirs and assigns, hereby authorize and empower the said William H. Spencer, his heirs and assigns, to make location of the said lands under and by virtue of the said warrant, and agreeably to the directions of the said act; and upon location thereof being made as aforesaid, to demand and receive a patent or deed of and for the said lands, in his own name, and for his sole use, benefit, and behoof; to the which end and intent I, the said Silas Fosgit, have and do make, ordain, constitute, and appoint the said William H. Spencer, his heirs and assigns, my true and lawful attorney and attorneys, irrevocable, to ask, require, demand, and receive the said deed or patent of and for the said land, and also to make location thereof, and one or more attorney or attorneys under him to constitute; and whatsoever the said William H. Spencer or his attorney or attorneys shall lawfully do in the premises, I, the said Silas, do hereby allow and confirm.
'In testimony whereof, I have hereunto set my hand and seal, this 28th day of June, 1816.
'SILAS FOSGIT. [SEAL.]
'In presence of—
GEORGE HORNER.'
The counsel for the plaintiff objected to the reading of this deed in evidence, for the following reasons, viz:
1. Because said writing is upon its face void, as being in violation of the acts of Congress touching the subject of bounties in lands for military services, and against the public policy of the United States on that subject.
2. 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.
3. Because said writing is irrelevant, and incompetent as evidence in this cause.
But the court allowed it to be read, and instructed the jury that if furnished a conclusive defence to the action. Whereupon the plaintiff objected, and brought the case up to this court.