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without oaths of identity where warrantees or guardians of minors locate for their wards; 15th, locations by attorneys of assignees,. without the powers of attorney accompanying the location ; and 16th, the location made by a person whose name entirely differs from that in the assignment, sometimes in the christian name, at others, in the orthography of the surname, and at others, in the presence or absence of an initial letter in a middle name, or otherwise.
Such are some of the most material irregularities with which this Office has had to contend, and which is now embarrassing its legitimate operations by correspondence requisite to perfect or undo that which has been erroneously performed.
You are strictly enjoined to avoid permitting any location to be made by any applicant where any of the foregoing objections, or others of a like character exist, requiring every applicant to have his warrant perfected in every respect, so that no subsequent action may be necessary for that purpose.
In all the instances herein enumerated, except the eighth and tenth, the mere statement of the defect carries with it the requisite knowledge of the method of amendment, viz: by supplying the omission. In the two instances thus excepted, special instructions are deemed necessary.
In reference to the first of said exceptions, No. 8, the assignor should, in the subsequent assignment, refer to the first one executed, and specify the reason for the execution of the second, or it should be made to appear in the certificate of acknowledgment of the officer before whom the latter was taken. In reference to the latter of said exceptions, No. 10, there should be an acknowledgment from the person whose name had been erased, that it had been erroneously inserted therein, and had been erased with his knowledge and consent, and that he claimed no right or interest in the warrant; when such person cannot be found, and the erasure was made in the presence of one or both of the land officers, at the time of locating the warrant, their certificate to that fact, stating further, that they were fully satisfied of the identity of the individual whose name was erased, and that the erasure thereof, and the substitution of that of another, were made with such person's consent, or at his request, will be deemed by this Office satisfactory. Failing, however, to obtain the evidence in either one or the other modes above prescribed, assignments of warrants possessing the defects under consideration will not be respected by this Office, unless the validity thereof is satisfactorily affirmed by some court of competent jurisdiction, or upon the action of the warrantee himself.
As many inquiries are made relative to the rights of parties where military warrants under Acts of 1850 and 1852 have issued to persons who have died before or after the date of the warrant, the following general principles governing in such cases are given :
1st. Where a soldier has died before the date of the warrant, it is a nullity, and should be surrendered to the Pension Office with a view to the issue of a new one to the widow, if one exists, and if not, to the minor children of the soldier, in whom alone exists the right to such warrant, in the respective instances cited.
2d. Where the soldier dies after the date of the warrant, and before its location or sale, the property therein descends to his heirs-at-law, who alone have the right to locate or dispose of the same, unless express provision is made in the will of said decedent, in which case it follows, of course, the special devise so made. Proof must be submitted of the demise of the warrantee, and the date when, and a certified copy of the will, making the devise in question either in specific terms, or by a devise of his real estate generally, which would of course include such warrant. Where no will has been made, in addition to proof of the demise and the period thereof, it should be shown, who are the heirs, and only heirs, and if any of them are minors, they must act through their guardians, whose appointment is to be proven; and if such action is for the sale of the warrant, express authority to that effect must be shown to have been given by the proper probate court. Where the warrant is issued to minor children, or where persons shown to be heirs-at-law of a deceased warrantee or assignee, unite personally in an assignment, it must be shown that at the date thereof they had each attained the age of twenty-one years; and where the said heirs, or any portion of them, are femes covert, their husbands must unite in the assignment.
The proof herein referred to must be attached to the warrant, and should be such as has been taken before the probate court, or other legal tribunal having jurisdiction over the estates of deceased persons, and consist not of the mere certificate of the ministerial officer of such court of the facts referred to, but of transcripts from the records of such court, duly certified and under seal, which transcripts of themselves evidence such facts.
3d. Where the warrant has been assigned, and the last assignee dies without having located or disposed thereof, the same rules apply in reference to its devise or descent to his heirs-at-law.
4th. These warrants being regarded as real estate,* they are to be treated as such by the respective courts having jurisdiction thereof, and hence such action as would be applicable to mere chattel property, under the law of the particular State in which the decedent had his domicil, will not be sufficient.
5th. Where the heirs are so scattered as to render it difficult or impracticable to obtain their individual assignments, then, on a decree of the proper court, in a proceeding similar to a petition for partition, the assignment may be made by the commissioner appointed to make sale, he to account to the heirs for the proceeds, or the right to locate the said warrant would vest immediately in the person in whose favor a decree might be made, on an approval of a sale effected under a preparatory decree; a certified transcript of the proceedings of the court, in either case, should be appended to the warrant.
6th. Where the assignment of a warrant is executed by the warrantee or an assignee, or by any of the heirs of either, in a foreign country, the attestation of the American consul in such foreign country should be obtained as to the official character and genuineness of the signature of the persons before whom the acknowledgment of the assignment was taken; or, if the official character, &c., of such foreign functionary is attested by a consular agent of such foreign government residing in this country, his official character must be certified to by the official representative of such foreign government in the United States, inasmuch as the State Department here has no official knowledge of the handwriting or seals of consuls of foreign powers. Where such assignments are executed in a foreign language, duly authenticated translations thereof must be also furnished.
7th. Widows, as such, of deceased warrantees, have no right to locate or assign said warrants; neither have administrators, except where the statute law of a State gives them express authority to dispose of the realty of their intestates, and then it should be evidenced by a proper certificate to that effect on the face of the warrant.
* By Act June 3, 1858, (No. 335,) warrants are declared personal property. + See Circular, November 1, 1858, (No. 617.)
8th. A warrant issued to minor heirs, or assigned by a warrantee to three or more persons, cannot be located if assigned by one portion of the parties to another portion, or to other persons, so as to invest any one of the parties with a greater interest than any other. In other words, each owner of a warrant, at the time of its location, must have an equal share or interest therein.
9th. Warrants issued to a “guardian of” minor heirs should be located in the name or names of the minors themselves, instead of in those of the guardians. The issue of the warrant in that form was an inadvertence, and the words “guardian of” will be erased by the Pension Office, after its location and return to this Office.
10th. Where an assignment has been apparently agreed upon, as evinced by a partial execution thereof, and the assignor dies before it is fully completed, by the attesting signatures of two witnesses, and acknowledgment before a proper officer, the assignment must be made de novo by the heirsat-law, accompanied by satisfactory explanatory evidence as to the incomplete assignment.
11th. Parties in interest are not to be recognized as legal attesting witnesses to an assignment, and the legibility of the names of parties should in all cases be required.
As to Locations. There are three modes by which these locations may be made : 1st. By the warrantee, or other legal owner of the warrant, in person.
2d. By the warrantee, or other legal owner of the warrant, through the agency of this Office.
3d. By an agent or attorney, of either of said parties.
If the first or second mode is adopted, the application must be made in writing, specifying the tract, land district, or section of country in which the location is desired, and be accompanied by an affidavit according to form No. 1, hereto appended.
Where the third mode is adopted, a power of attorney must be produced, executed by the owner of the warrant in the presence of a witness, according to form No. 2; which power of attorney must be acknowledged, or proved, as the case may be, before some officer authorized to take the acknowledgment of deeds, according to form No. 3 or No. 4.
The following fees are chargeable by the land officers, and the several amounts must be paid at the time of location : For a 40 acre warrant, fifty cents each to the Register and Receiver-total $1 00 For an 80 For a 160
In all cases the patents will be transmitted to the land office where the location is made, unless special directions to the contrary be given, in which last case the duplicate certificate of location must be previously transmitted to this Office.
As to Assignments and Powers of Attorney. Assignment No. 5, and the proper acknowledgment, must be endorsed upon the warrant, and No. 6, and the proper acknowledgment, upon the certificate of location, and must be attested by two witnesses, acknowledged before a Register or Receiver of a Land Office, a Judge of a Court of Record, a Clerk the reof, when authorized to take acknowledgments, a Justice of the Peace, Notary Public, or a Commissioner of Deeds, resident in the State from which he derives his appointment; and in every instance where the acknowledgment is made before either of the officers above specified, except the Register or Receiver of a Land Office, or the Clerk of a Court
2 00 4 00
of Record, it must be accompanied by a certificate, under seal of the proper authority, of the official character of the person before whom the acknowledgment was made, and also of the genuineness of his signature.
Where warrants are disposed of under powers of attorney, form No. 7 is prescribed for that purpose; which, however, must invariably be endorsed on the warrant, or they will not be recognized.
The acknowledgment of this power of attorney must be taken and certified in the same manner as the acknowledgments of the sales of the warrant or certificate of location hereinbefore prescribed, and must also be endorsed on the warrant.
Respectfully, your obedient servant,
JOHN Wilson, Commissioner. To Register and Receiver of the Land Office at
FORM NO. 1. State of
County of Before me, (a justice of the peace or other officer authorized to take affidavits,) personally appeared, (here insert the name of the warrantee,) who being duly sworn, deposes and says, that he is the identical, (here insert name of warrantee,) to whom warrant No.
-- acres under the Act of September, 1850, (or March, 1852, as the case may be,) was issued on the
185-, and who now applies to locate the same.
(Affiant's signature.) Sworn to and subscribed before me this
FORM NO. 2. Know all men by these presents, that I, (here insert the name of warrantee,) of the county of
and State of
do hereby constitute and appoint
of , my true and lawful attorney, for me, and in my name, to locate land warrant No.
for land, which issued under the Act of September, 1850, (or March, 1852, as the case may be.)
(Power of substitution may be inserted, if desired.) Signed in presence of
FORM NO. 3. State of
County of On this day of
personally appeared, (here insert name of warrantee,) and acknowledged the within power of attorney to be his act and deed; and I certify, that I well know the said, (here insert the name of warrantee,) and that he is the same person who is described in the within power, and who executed the same.
FORM NO. 4. State of
County of I hereby certify, that on this personally came before me, (here insert the name of the witness,) and, (here insert name of warrantee,) and the said, (here insert the name of witness,) being well known to me, was duly sworn by me, and on his oath declared and said that he well knew the said, (here insert the name of war. rantee,) and that he was the same person described in, and who executed
in the year
in the year
in the year
the within power of attorney, and his testimony was to me satisfactory evidence of that fact, and the said, (here insert the name of warrantee,) thereupon acknowledged the said power to be his act and deed.
(Officer's signature.) FORM NO. 5.
For the assignment of the warrant. For value received, I, A. B., to whom the within warrant No. was issued, (or assigned, as the case may be,) do hereby sell and assign unto C. D., of and to his heirs and assigns forever, the said warrapt, and authorize him to locate the same, and receive a patent therefor. Witness my hand and seal, this
A. B. [SEAL.]
Of acknowledgment where the vendor is known to the officer taking the same.
County of On this
before me, personally came, (here insert the name of the warrantee or assignor,) to me well known, and acknowledged the foregoing assignment to be his act and deed; and I certify that the said (here insert the name of the warrantee or assignor,) is the identical person to whom the within warrant issued, (or was erssigned, as the case may be,) and who executed the foregoing assignment thereof.
(Officer's signature.) Of acknowledgment where the vendor is not known to the officer, and his identity has to be
proved. State of
County of On this
before me personally came, (here insert the name of the warrantee or assignor,) and (here insert the name and residence of a witness,) and the said (here insert the name of the witness,) being well known to me as a credible and disinterested person, was duly sworn by me, and on his oath declared and said, that he well knows the said (here insert the name of the warrantee or assignor,) and that he is the same person to whom the within warrant issued, (or was assigned,) and who executed the foregoing assignment, and his testimony being satisfactory evidence to me of that fact, the said (here insert the name of the warrantee or assignor,) thereupon acknowledged the said assignment to be his act and deed.
(Officer's signature.) FORM NO. 6.
For the assignment of the location. For value received, I, A. B., to whom the within certificate of location was issued, do hereby sell and assign unto C. D., and to his heirs and assigns forever, the said certificate of location, and the warrant and land therein described, and authorize him to receive the patent therefor. Witness my hand and seal, this day of
Á. B. [SEAL.] E. F.
G. H. Of acknowledgment where the vendor is personally known to the officer taking the same. State of
County of On this
in the year ----, before me, personally came (here insert the name of the person to whom the certificate of location issued) to me well known, and acknowledged the foregoing assignment to
in the year