
    THADDEUS THAYER v. THE UNITED STATES.
    [No. 14461.
    Decided February 9, 1885.]
    
      On the Proofs.
    
    Certain Chippewa Indians have lands allotted for their individual property and are put in possession. Before the allotments are approved and patents issue, the Indians, for purposes of improvement and cultivation, cut and sell small quantities of saw-logs. The sale is approved hy the government agent, and the logs are taken possession of hy the purchaser. Subsequently agents of the Land Office, under instructions of the Interior Department, seize and sell the logs. The proceeds thereof are in the Treasury.
    I. Though the government he not responsible for the trespass of officers who illegally seize the property of a citizen, yet if the proceeds pass into the Treasury the government will he liable on implied contract to account to the owner therefor.
    H. This court has jurisdiction of an action to recover money in the Treasury derived from the sale of property illegally seized and sold hy agents of the government.
    
      III. Where individual Indians have been put in possession of land as prospective owners, they have a right to cut and sell timber for purposes of improvement and cultivation, though thepatents conferring- a legal title to the land have not issued.
    IV. Where patents have issued, the government is estopped from setting up a claim for waste committed by the patentees on the ceded lands.
    
      The Reporters’ statement of the case :
    The following are the facts of the case as found by the court:
    I. The claimant, a licensed trader at the Lac Court d’Oreilles Reservation, in the State of Wisconsin, in the year 1881, purchased, in the month of February, 1881, with the approval of S. B. Mahan, then acting agent at the La Pointe Agency, from the Indians Bi-da-na-kwad 187,000 feet of pine logs and from Chiz-ai-aw 15,000 feet of pine logs.
    II. The said logs were cut by said Indians (Bi-da-na-kwad and Chiz-ai-aw) from the lands allotted to them September 24, 1878, by the then agent, J. L. Mahan, and Special Agent B. J. Brooks, of the defendants, under the provision of the third article of the treaty with the Chippewas of September 30, 1854 (10 Stat. at L., 1109), to wit: Allotment No. 12, Bi-da-na-kwad, lot 4, section 31, township 40, range 0 west, 37.38 acres, and lot 5, section 31, township 40, range 6 west, 34.22 acres; allotment No. 13, Chiz-ai-aw, lot 3, section 31, township 40, range 6 west, 47.10 acres, and SB. ¿ of the SE. ¿section 31, township 40, range 6 west, 40 acres. The allotments were approved March 11,1881, and patents issued thereon June 20, 1881, by the Department of the Interior. Prior to the allotment the lands had been surveyed and subdivided preparatory thereto, and subsequently the Indians were allowed to occupy and cultivate each his own tract. Farmers were sent out by the government to instruct them in the improvement and cultivation of the land. The Indians from whom the claimant purchased the-logs were in the possession of their respective tracts at the time the logs were cut, and cut them for the purpose of cultivation and improvement thereof.
    III. The claimant purchased said logs at the rate of $2.50 per thousand feet, and paid said Bi-da-na-kwad, in goods, provisions, and money, for his said 187,000 feet of logs, to the amount of $504.60, or $36.50 in excess of the price of the logs. He also paid said'Chiz-ai-aw for his 15,000 feet of logs, in goods, provisions, and money, to tbe amount of $59.95, or $22.45 in excess of the price of the logs.
    IY. The said logs were delivered by the said Indians on Pokagamon Creek, within the Indian reservation, to the claimant, and were by him marked with his initials. Subsequently George A. Henry and Benjamin F. Millard, special agents of the defendants, on the 29th day of April, 1881, in pursuance of instructions from the Department of the Interior, seized and took possession of the said logs and 320 feet of other lumber, the property of the claimant, and sold the same to Stocking and Stevens for the sum of $809.20, which sum was subsequently turned over to the government and covered into the Treasury.
    Y. The said Henry and Millard, when they seized and took possession of said logs for the United States, moved them behind the dam of the claimant, which was located on Pokagamon Creek, and known as “Thayer’s Dam,” without his consent, | and the said Millard, the deputy of said Henry, gave strict and ' positive orders, in the spring of 1881, that no one should raise the gates or interfere with the dam, during which time a freshet of the Pokagamon Creek occurred, and broke down part of the dam and otherwise injured it to the extent of $200.
    
      Mr. T. E. N. McPherson for the claimant.
    ¡ Mr. F. E. Howe (with whom was the Assistant Attorney-t General) for the defendants :
    b The sale was illegal, and the government had a right to the possession of the logs. (United States v. Cook, 19 Wall., 391; Cotton v. United States, 11 How., 229.)
    There seems to be no doubt that the purchase and sale were bona fide transactions for value. But the claimant was bound j to be advised of the law, and he bought these logs from the ) Indians at his peril. If the transaction was illegal, he must > suffer unless relieved by Congress.
    This court has jurisdiction only in cases ex contractu. An ' implied contract to pay does not arise where the officer of the government, asserting its ownership, commits a tort by taking forcible possession of property of an individual. (Langford v. The U. S., 101 U. S. B., 341.)
   Scofield, J.,

delivered the opinion of the court: •

Prior to September 24, 1878, the United States had made surveys and subdivisions of the Lae Court d’Oreilles Reservation; in the State of Wisconsin, before reserved for the use of the Chippewa Indians, and on that day. under the direction of its agents, made an allotment of the subdivisions to individual Indians, for their own separate use and occupation. The Indians were put in possession of their several tracts, and from thattime forward treated them as their own. Sometimeelapsed before the reports of these agents cou-ld be examined and approved in the Interior Department, but the examination was finally completed and the approval given March 11, 1881. In pursuance of the allotments, patents were issued to the Indians' for their several tracts in the following June.

In the mean time farmers had been sent by the government to instruct the Indians in the settlement, improvement, and cultivation of their lands.

Two of the Indians, for the purpose of improvement and cultivation, cut small quantities of saw-logs, amounting in all to 202,000 feet, hauled them to a neighboring creelr, and in February, 1881, sold them to the claimant. The price paid was $2.50 a thousand feet. The sale was approved by the government agent, the logs delivered, taken into the claimant’s possession, and marked with his initials.

About two months after this sale and delivery, agents of the General Land Office, under instructions of the department, seized and sold the logs. The proceeds of the sale amounted to $809.20, which amount was forwarded to and covered into the Treasury of the United States.

The fact that the logs were in the peaceable possession of the claimant, under a claim of ownership, was sufficient, nothing more appearing, to support an action of trespass against the agents and their vendees for the value of the logs, or, waiving the trespass, for the money derived from the sale.

The claimant did not choose to pursue these parties, but instead has brought his suit against the government.

Assuming that the logs belonged to the claimant, and the agents were mere trespassers, for what, if anything, is the government responsible? Certainly not for the trespass and wrong-doing of its officers.. But having received the money into its custody without any just or legal right thereto, the law, in our opinion, implies a contract to account to the owner of it, which can be enforced in this court.

This question arose in the case of the United Staten v. The State Bank (10 C. Cls. R., 519). The opinion of the court, as well condensed in the head-note, says: “While the party cannot set up the wrongful acts of its officers against the government, neither can the government set up the wrongful acts of its officers to relieve itself from its lawful liabilities.” The case was appealed to the Supreme Court, and in affirming the judgment of the court below, the court (96 U. S. R., 30) says:

“ Surely it ought to require neither argument nor authority to support the proposition that when the money or property of an innocent person has gone into the coffers of the nation by means of a fraud to which its agent was a party, such money or property cannot be held by the United States against the claim of the wronged and injured party.”

But the defendants go behind the claimant’s possession and attempt to disprove his title to the logs by showing title in themselves to the land from which they were cut. Here again they are confronted with the possession of the claimant’s vendors. More than two years before, the Indians had been placed in possession of the lands — not to account for the mesne profits, not to pay rent, but to settle and improve them as prospective owners.

It was decided by the Supreme Court in the case of the United States v. Cook (19 Wall., 591) that Indians have a right under such circumstances to cut and sell timber for the purpose of improvement aud cultivation of the laud. That rule alone would support the claimant’s title to the logs, for they were cut for the purpose of cultivation and improvement, and with the approval of the government agent.

But the claimant is not forced to rely upon this position alone. The possession taken in pursuance of the survey, subdivision, and allotment was followed by the approval of the proceedings by the Secretary and the issuing of patents. The title of the Indians being thus completed, related back to its inception in September, 1878. The government is thereby estopped from setting up-title or any claim for waste committed in the mean time.

In this way, by operation of law, the claimant’s title to the logs was validated even if otherwise imperfect.

The claimant has also set up a demand for injury done to Ms premises by the trespass of the government agents. As above stated, the government is not responsible for the wrongful acts of its officers. It is liable only for the money which it has received in consequence of those wrongful acts.

Judgment will be entered for the claimant in the sum of $809.20.  