
    BEAUMONT, Administratrix, et al., v. THE UNITED STATES. BOYD & WALT v. THE UNITED STATES.
    [No. 16680, 14367.
    Decided May 19, 1890.]
    
      On the Proofs.
    
    The purchasers under a direct-tax sale do not obtain possession, and a' chancery court of Tennessee in a suit to quiet title decrees that the tax certificate is .void.' They now seek to recover hack their purchase money. The owners, whose land was sold hut who have not been dispossessed, now seek to recover the surplus.
    I.Theownersof property after a direct-tax sale, under the Act 7th June,, 1862 (12 Stat. L., p. 422), cannot retain the land and obtain the surplus.
    II.The Direct-Tax Act, 1862, does not warrant title nor provide for a refund of the purchase money on failure of title.
    III. Under the Act 8th June, 1872 (17 Stat. L., p. 332 § 9), the failure of title must be established “hy the judgment of some United States Court” as a condition precedent to the repayment of the purchase money. An eviction by the judgment of a State court is insufficient.
    IV. Tire Act 1872 is not repealed by the Revised Statutes § 3689. The Act 1872 creates a right. Section 3689 provides the means of payment. 1
    
      The Reporters' statement of the case:
    The following are the facts of this case as found by the court:.
    I. June 25, 1864, the direct-tax commissioners of the United States for the State of Tennessee, at a direct-tax sale, struck down lot No. 118, in Memphis, Tenn., to Reuel Hough, and issued to him certificate No. 1076, as set out in Finding II. Boyd & Walt, the claimants in No. 14367, were then the owners of said lot. From this sale there was no redemption.
    
      
    
    Total charges.-.... 13.89-
    Balance... 241. lfc
    
      II.“ Tax-sale certificate Eo. 1076. — This is to certify that at a sale of lands for unpaid taxes, under and by virtue of an act entitled “ An act for the collection of direct taxes in insurrectionary districts within the United States, and for other purposes,” and the act amending the same, held pursuant to notice at Memphis, in the county of Shelby, in the State of Tennessee, on the twenty-fifth day of June, A. D. 1864, the tract or parcel of land hereinafter described, situate in the county of Shelby and State aforesaid, and described as follows, to wit: Lot one hundred and eighteen (118), twenty-eight by one hundred and forty (28x140) feet, Water street, assessed to Walt and Boyd in 1860, fifth civil district (city of Memphis), was sold and struck off to Reuel Hough for the sum of two hundred and fifty-five dollars, he being the highest bidder and that being the highest sum bidden for the same; the receipt of which said sum in full is hereby acknowledged and confessed.
    “Given under our hand at Memphis, this twenty-fifth day of June, A. D. 1864.
    “ Jno. B. Rodg-ebs, “Delano T. Smith,
    “E. P. Ferey,
    “ Commissioners.”
    III.In a case commenced June 2,1865, in the chancery court of Shelby County, Tenn., between A. M. Boyd and R. P. Walt as complainants, and O. H. Adams, R. Hough, Imogene De Loach as administratrix of O. De Loach, deceased, Thomas A. De Loach, and Güila De Loach as defendants, on the 8th of July, 1874, a final decree and judgment was entered as follows.
    “ It is therefore ordered and decreed by the court that said tax certificate issued by John B. Rodgers, Delano T. Smith, and E. P. Ferry, United States tax commissioners, as stated in the pleadings, be canceled and for naught held and be removed as a title to the lot in controversy, being lot 118 on Water street, in the city of Memphis, Shelby County, Tenn. And, furthermore, that complainant’s title and possession be quieted and the injunction be made perpetual.”
    IV. April 1, 1870, said chancery court in a suit to which said Reuel nough and the heirs of said Claiborne De Loach, then deceased, were parties, decreed that the said certificate Ho. 1076 and all rights under it belonged to the estate of said Claiborne De Loach.
    V. On the 31st day of December, 1873, Effie, Deborah, Güila, Thomas A. De Loach, who sue by their guardian, Thomas H. Allen, brought their action of ejectment in second circuit court of Shelby County, Tenn., against William T. Avery, T. Graves, Amos Woodruff, R. 0. Daniel, and Andrew Tafft, to recover the possession of lot 118 on east side of Water street, in Memphis (28 by 140 feet). April 23,1875, judgment in favor of defendants.
    VI. Imogene A. Beaumont is the duly-qualified administra-trix of Claiborne De Loach, deceased. October 28, 1882, she presented to the Treasury Department, as administratrix, aforesaid, a claim for the refund of the purchase-money of lot 118, paid by Reuel Hough, claiming said refund on the ground that the tax-title had failed and the purchaser or his assigns had been evicted. June 6, 1881, the Secretary of the Treasury rejected the claim on the ground that the purchaser had not been evicted by a United States court, as provided for in section 2 of the act of June 8, 1872. (17 Stat., 332.) November 25, 1882, Boyd & Walt also made application to the Treasury Department under the act of March 3,1883 (32 Stat., 595) for the payment to them of the surplus purchase money; but failing to show that they lost the land by the sale, the claim, though not formally rejected, was not allowed.
    
      Mr. Luther H. Pike for Beaumont, administratrix.
    
      Mr. I. G. Kimball for Boyd & Walt.
    
      Mr. F. P. Lewees (with whom was Mr. Assistant Attorney-General Cotton) for the defendants.
   Scoeield. J.,

delivered the opinion of the court:

The claims in these two cases are antagonistical to each other. They were therefore, by agreement of parties and consent of the court, consolidated and tried together.

In 1864 the direct-tax commissioners of the United States for the State of Tennessee sold lot Ho. 118, in the city of Memphis, for direct taxes. It was struck down to Reuel Hough at $255, to whom the commissioners, upon the payment of the purchase money, issued certificate Ho. 1076. The taxes, penalty, costs, and interest amounted to $13.89, leaving a balance in tl^e Treasury of $241.11.

Hough, it appears, purchased a large number of lots, and in so doing represented several parties interested with himself.

In á partition suit in the chancery court of Shelby County, Term., to which said Hough and the others interested with him in the purchases were parties, certificate Ho. 1076 was decreed to belong to the estate of Claiborne lie Loach, then deceased.

Imogene A. Beaumont, administratrix of said De Loach, joined with Thomas A. De Loach, the alleged heir of Claiborne De Loach, are the claimants in Ho. 16680, for the return of the purchase-money, alleging that the title supposed to have been acquired has entirely failed.

Boyd & Walt are claimants for the surplus purchase-money in case Ho. 14367, under the Act of March 3, 1883 (22 Stat., 595), which is as follows :

“ The Secretary of the Treasury is hereby authorized and directed to cause to be audited by the proper accounting officers of the Treasury and paid the claims of the original owners of lands which were sold for non-payment of the United States direct taxes, for the surplus proceeds of the same under the provisions of August 5, 1861 (12 Stat., 305), and for such purpose the sum of $190,000 or so much thereof as may be necessary is hereby appropriated.”

They were the owners of the land at the time of sale, but have always resisted the tax title and steadily maintained their possession of the lot. June 2,1865, they instituted a suit in the chancery court of Shelby County for the purpose of establishing and quieting their title, and made said Hough and the heirs and legal representatives of said Claiborne De Loach parties thereto. July 8,1874, a final decree was entered in the suit decreeing the tax “ certificate canceled and for naught held,” and “the title a,nd possession of said Boyd & Walt be quieted and the injunction be held perpetual.”

In an ejectment suit brought in the second circuit court of Shelby County by parties claiming under this certificate judgment was i endered April 23,1875, in favor of the parties claiming under Boyd & Walt.

It is now nearly thirty years since the lot was sold, yet Boyd & Walt, during all this time, have not only retained the possession of it, but have twice vindicated their right so to do in the courts of Tennessee.

We know of no rule of law by which they can be permitted to hold both the land and the purchase-money. (Rhett's Case, 20 C. Cls., 338; Wilson’s Case, 24 id., 237.)

The claimants in No. 166S0 present a much more meritorious case. They paid the purchase-money to the Government, and have since been to much trouble and expense in unsuccessful efforts to obtain possession of the land. They have, however, no legal claim against the defendants unless it has been conferred by statute.

The Act of June 7,1862 (12 Stat., 422), providing for the collection of direct taxes, did not warrant title to the purchaser (Cooper v. The United States, 120 U. S., 126), nor did it make any provision for a refund of the purchase-money on failure of title except in cases of redemption. This omission was supplied by the Act of June 8, 1872 (17 Stat., 332), which is as follows:

“ Seo. 9. That section 2 of an act entitled ‘An act for the relief of purchasers of land sold for direct taxes in the insur-rectionary States,’ approved May 9, 1872, be, and the same is hereby, amended to read as follows:
“ ‘ Seo. 2. That in all cases where the owner of any land sold for taxes as aforesaid, his heirs or assigns, has recovered or shall recover the same irom the purchaser, his heirs or assigns, without collusion on his or their part, by the judgment of any United States court, by reason of a failure, without his or their fault or neglect, of the title of the purchaser derived from said sale, the. Secretary of the Treasury, on the payment into the Treasury, by the clerk, of the money deposited with him as aforesaid, and on being satisfied that any purchaser, his heirs or assigns, without his or their collusion, has been evicted from or turned out of possession of any such land by the judgment of any United States court, in the manner before mentioned, is hereby authorized, out of any money in the Treasury not otherwise appropriated, to repay to the person or persons entitled thereto a sum of money equal to that originally paid by the purchaser of the land so recovered, if the same has been paid into the Treasury or to any person legally authorized to receive .the same for the United States.’ ”

By the terms of this act the failure of title must be established “by the judgment of some United States court” as a condition precedent to the repayment of purchase-money. The claimants concede that they are not entitled to recover under this act, because there has been no eviction by the judgment of any United States court; but they contend that this condition precedent to repayment has been repealed by sections 3689 ami 5596 of the Kevised Statutes.

Section 3689 relates entirely to permanent appropriations and enumerates some fifty class claims, under the following heading:

“ Seo. 3689. There are appropriated, oat of any moneys in the Treasury not otherwise appropriated, for the purposes hereinafter specified, such sums as may be necessary for the same respectively; and such appropriations shall be deemed annual appropriations.”

In this list is the following:

u Payment for land sold for direct taxes_To repay to purchasers evicted through failure of title from lands sold to them in insurrectionary districts for direct taxes.”

The part of section 5596 relied upon as repealing ninth section of the act of 1872 is as follows:

“ Sec. 5596. All acts of Congress passed prior to the 1st day of December, 1873, any portion of which is embraced in any section of said revision, are hereby repealed, and the section applicable thereto shall be in force in lieu thereof.”

Is any portion of section 9 of the act of 1872 embraced in the foregoing extract of section 3689 ? We do not so understand it. The act of 1872 creates a right and defines the evidence by which it may be established, while section 3689 provides the means of payment. The one allows a claim, the other makes an appropriation to meet it. In order to define the class of claims for which the permanent appropriation was intended some descriptive words were necessarily used. It was for this purpose that the same descriptive words found in the act of 1872 were repeated in the appropriation act in this revision. All the precautions against collusion and fraud prescribed in the act of 1872 remain unaffected.

Even if the claimants’ construction of the law were correct, it is not certain they could recover in this case, for under that construction the fact of eviction must still be proved in this court by competent evidence, and it is well settled that a decision adverse to a title in a suit to which the warrantor was not a party and of which he had no notice will not conclude him in a suit on the warranty. It does not appear that the defendants had any notice of the litigation in Tennessee. Certainly they were not a party to it.

The petitions in both cases will be dismissed.  