
    CHARLES JOHN HOUSER v. THE UNITED STATES.
    [No. 22857.
    Decided October 31, 1904.]
    
      On the Proofs.
    
    The Quartermaster’s Department erects buildings on land belonging to private owners. When no longer needed the buildings are sold at public auction, the quartermaster in charge announcing to bidders that the purchaser will be put in immediate possession of the property and may remove it at any time prior to a day named. The owner of the land forbids that removal. The quartermaster puts the purchaser in possession and protects him in the removal of the buildings. The owner of the land brings an action for trespass against the purchaser, who notifies the proper officers of the Government and defends the suit. Judgment is for the plaintiff. The purchaser pays the judgment and also his counsel employed to defend. The Government does not assist in the defense or take any action whatever. The purchaser brings this action to recover the money paid under pressure of the’ judgment ¿nd the costs of his own counsel.
    I.It is a general principle that public officers in their official capacity are special agents, who must act within legally prescribed limitations.
    II.But a depot quartermaster, while subordinate to the Quartermaster-General, is a general agent of the Government in the purchase of supplies and in the right, when directed so to do, to sell unnecessary supplies.
    III. Where buildings were sold as the property of the Government by an authorized agent at public sale, and it was announced in his presence that the purchaser would be put in possession immediately and could remove the buildings at any- time before, a day named, it must be presumed that the Government was at the time of the sale a vendor in possession.
    IV. It is a general rule in the sale of personal .property that no implied warranty of goodness arises from the fact of sale. But if the vendor is in possession, there is an implied warranty of title. The assurance of the vendor that a purchaser will have the right of removal until a day named amounts to a warranty that up to that time the vendor will have authority to convey a title.
    V. It is the duty of such a purchaser to defend the title in order to protect himself and the collateral obligation of the vendor; and the employment of counsel is a necessary way to discharge that duty; and the expense of counsel may be recovered in a suit against the vendor as well as the amount of the judgment which the purchaser was compelled to pay.
    VI. But where a purchaser does not notify the vendor of suit brought, and the vendor has no opportunity to defend, an action can not be maintained.
    
      The Reporters’ statement of the case:
    The following are the facts of the case as found by the court:
    I. During the war between Spain and the United States United States troops were encamped at the town of Anniston, Ala.; and to accommodate them the Government built temporary halls, stables, and hospitals. The troojis occupied the camp from some time in the fall of 1898 to February or March, 1899, a-ncl subsequent to their departure these buildings (which were entirely of a temporary character and fit for nothing except the lumber), were disposed of at public sale March 28, 1899, by Captain Forrest, depot quartermaster. Claimant and Thomas L. Houser purchased them, being the highest bidders, and have paid the United States for said buildings, to wit, $1,385. Thomas L. Houser died on the 7th of April, 1901.
    II. Before any bid was made Captain Forrest, ivho was present at the sale, announced to the public that the party who purchased the buildings would be put in possession immediately and could remove them at any time before the 15th of April, 1899. On the day after the purchase claimant proceeded to remove the buildings purchased by himself and Thomas L. Houser. The land on which part of these buildings were situated was at the time of their purchase owned by Eula F. Sawyer and a part by John P. Leyden. The part of the land owned by John P. Leyden at the time of the sale had been, just previous to the sale, viz, until March 21, 1899, the property of one W. J. Edmundson, who upon that date sold the land to John P. Leyden. On April 14, 1898, Sawyer sold the property on which part of the buildings was situated to Della K. Owen. The camp, which comprised a part of these buildings, ivas on the Sawyer land and part on the Edmundson land.
    The auctioneer in making the sale announced before the sale that the Government would protect the purchasers until the 15th of April, 1899, so as to give them time to remove the property which they might buy from the land on which they stood.
    III. Before April 15,1899, and before finishing the removal of the buildings, Edmundson notified claimant that he had sold the land, on which the stables, three or four mess halls, and a few shacks had been built, to J. P. Leyden, and in his name notified claimant not to remove any buildings. Upon getting this notice claimant reported the fact to Quarter-* master Forrest, asking what he must do, and the quartermaster immediately sent three or four men from his office to put claimant in possession of the buildings on the Leyden tract of land, with instructions that claimant should remove them. Claimant proceeded to finish the removal about the 7th of April. As to the buildings on the Sawyer land, sold to Della K. Chven on April 14, 1899, the husband of Mrs. Eula F. Sawyer notified claimant on or about the 14th of April not to remove the buildings from the Sawyer tract.
    At that time Quartermaster Forrest had left the post, and claimant did not report the fact of having received this notice to him, but continued to remove the buildings, finishing the same on the 14th of April. At the time of the purchase claimant did-not know on whose land the various buildings offered for sale stood, or what arrangement there was between the owners of the land on which the buildings stood and the Government, but relied upon the representations, made at the time of the sale, and before he bid, by Captain Forrest, to the effect that the party purchasing the buildings would be put in possession immediately and could remove the buildings at any time before the 15th of April, 1899, and the further statement that he guaranteed to deliver to the purchaser all the buildings included in the. purchase, if he had to put soldiers there to insure it.
    IY. In May, 1899, Owen, the purchaser from Sawyer, April 14, 1899, 'of land on which part of the structures stood, brought an action in trespass against claimant in the Circuit Court of Calhoun County, Ala., and at the spring term, 1900, obtained a judgment against him for $150, together with costs, which judgment and the costs claimant paid into court. Subsequent to the bringing of this suit and pending judgment rendered in the same,' to wit, on April 19, 1900, Leyden, purchaser from Edmundson, brought an action in trespass against claimant in the Circuit Court of Calhoun County, Ala.', for the removal of the structures from his land, and at the spring term, 1901,of court judgment was rendered against claimant for $125, with all costs, which judgment, together with $66.50, cost of suit, claimant paid into court.
    Y. To defend the suits mentioned in the preceding finding, claimant employed A. P. Agee, esq., a practicing lawyer. On April 26,1899, A. P. Agee notified the honorable Secretary of War, in -writing, of the circumstances of the sale, etc., to Thomas L. and Charles John Houser, of suit being threatened, requested the War Department to indemnify the Hous-ers against loss that they might sustain, for assurance by the Government of protection, and asking whether Houser should, defend the suit by Owen or whether the Government would defend the same. Under date of May 8, 1899, A. P. Agee was informed by the honorable Secretary of War that the correspondence had that day been referred to the Attorney-General with a request that such steps as might be considered necessary be taken to protect the interest of the Government in the premises; and that, to wit, May 17, 1899, the United States attorney for the northern district of Alabama, Mr. William Vaughan, wrote to Mr. A. P. Agee that the Attorney-General had given him instructions to look into the matter and to protect, as far as he could, the interests of the Government, and requesting information as to the present status of the matter, and whether or not any proceedings had been instituted to enforce the pretended' rights of Owen. A. P. Agee gave to the United States district attorney for the northern district of Alabama the information requested, and subsequent to that time received from him a letter of May 20, 1899, requesting, if suit was brought, to forward copies of papers immediately and write him fully his (Agee’s) views of the matter, together with a full statement of the facts, to which letter A. P. Agee replied, complying with the request, and in reply received a letter, date of June 1, 1899, from the district attorney acknowledging the receipt of the information and stating that he would communicate with the Attorney-General and write him (A. P. Agee, esq.) further as soon as he heard from the Attorney-General, and requesting Agee to write him when the case would come' up for trial and the last dajr that pleas might be filed. A. P. Agee, esq., replied to this letter, giving him all the information inquired about and sending him a copy of the complaint in-the case of Owen v. Houser. He also subsequently wrote to Mr. Varighan. On April 26,1899, Mr. A. P. Agee also wrote to Captain Forrest, who had made the sale of the property, reminding him of the circumstances of the sale upon the assurance from him (Captain Forrest) that-they (Housers) would have until April 15, 1899, to remove tbem, stating that they did remove them on April 15; that suit was threatened, and that he would understand that under his (Captain Forrest’s) assurance the Messrs. Houser expected to be protected in their purchase, and that if Mrs. Owen should sue and recover judgment they ought to be indemnified by the Government; also stating that he had written to the War Department, and hoped that he (Captain Forrest) would take up the matter so as to protect the Messrs. Houser; that Captain Forrest acknowledged receipt of this letter under date of April 28, 1899, and asked:
    ■ “ Will you do me the kindness to inform me who this Mrs. Owen is and what land she claims ? We were not aware that we were on any of her land, and never heard of her.”
    A. P. Agee responded to this letter, and on May 5, 1899, received a letter from F. G. Hodgson, major and quartermaster, U. S. Volunteers, referring to his communication of April 26, 1899, to Major Forrest in behalf of Thomas L. and Charles J. Houser, and, by instruction of the Quartermaster-General, informed them that all the papers in this case had been submitted to the Secretary of War.
    The suit of-Della K. Owen v. Charles John Houser was contested before a jury in the Circuit Court of Calhoun County, Ala., the said Houser being represented by the said A. P. Agee as his attorney. In the defense of this suit the Government rendered to the said A. P. Agee or Houser no aid whatever; did not furnish them with any of the agreements which the Government made with- landowners on lands occupied by the Government troops when stationed in Anniston in 1898-99. A. P. Agee requested Mr. Vaughan to aid in the defense of the suit, and informed hi in as to the date of trial, but heard nothing from him after his letter of June 1,1899, above referred to. A. P. Agee, esq., wrote to Colonel Seaman, Fourth Wisconsin Eegiment, at Milwaukee, Wis., requesting of him the agreement that he had made with Sawyer for the occupancy of the Sawyer land. Colonel Seaman wrote him in reply that he was unable to furnish him with it. Judgment was recovered against Charles John Houser as heretofore stated.
    
      In the case of Leyden v. Charles J. Houser, which was continued several times, and came up for trial subsequent to the trial of the Owen case, the amount of the claim was larger, and, with the experience had in the O-wen case before the same court, claimant was afraid of the result, and, upon advice of his counsel, effected a settlement with Leyden’s attorneys during the trial for a judgment against him for $125 and costs, in full satisfaction of their claim for $700. Claimant considered that a wise and judicious settlement in his interest. On both trials the complainants against claimant produced their title to the land in question.
    YI. The amount of-the judgment recovered in the Circuit Court of Calhoun County, Ala., by Della K. Owen v. Charles J. Houser was $150, and costs amounting to $26.70 — -in all, $176.70. The same was ¿said into court by Charles J. Houser.
    VII. The amount of the judgment recovered in the Circuit Court of Calhoun County, Ala., by J. P. Leyden v. Charles J. Houser was $125, and costs amounting to $66.50 — in all, $191.50. The same was paid into court by Charles J. Houser. The costs of court, $66.50, in the case of Leyden v. Houser were greater than the costs, $26.70, in the case of Owen v. Houser, because the former case was continued several times, and included witness fees for attendance.
    VIII. Charles J. Houser paid to his lawyer, A. P. Agee, esq., for his services in defending the suit brought against him by Owen, the sum of $30; and for services in defending the suit brought against him by Leyden he paid to the said A. P. Agee and H. L. Stevenson, as his attorneys, $40, which fees were reasonable. The services rendered Charles J. Houser by his said attorneys were in filing answers to the complaints of each of the said suits, attendance at court on the trial of each case, writing numerous letters trying to secure the aid of the United States in defense of the suits, and for consultation.
    IX. June 15,1901, A. P. Agee, esq., as attorney for Houser, wrote to the honorable Secretary of War inviting the attention of the Department to this claim of Charles John Houser against the Government, which letter was returned July 10, 1901, to A. P. Agee, esq., by the chief clerk of the War Department, by order of the Secretaiy, inviting attention to a report of the Acting Quartermaster-General of the Army upon the claim, which report stated:
    “As there is no appropriation from which payment can be made in this case, it is recommended that the parties inter-ested be referred to Congress, the only power that can afford relief."
    
    
      X.
    
    COMPLAINT.
    
      11 Mrs. Della K. Owen v. G. J. Houser.
    
    “ 1. The plaintiff claims of the defendant five hundred dol-lars damages for a trespass by the defendant upon the follow-ing tract of land, viz: The northeast quarter of the southeast quarter of section two, township sixteen, range seven, in Cal-houn County, Alabama, belonging to the plaintiff, and for tearing down and removing one stable building and thirty-five small buildings or shacks on, to wit, the- day of April, 1899.
    “ 2. The plaintiff claims of the defendant the other and further sum of five hundred dollars damages for a trespass by the defendant upon the following tract of land, viz: The northeast quarter of the southeast quarter of section twTo, township sixteen, range seven, in Calhoun County, Alabama, in the possession of the plaintiff, and for tearing down and removing one stable building and thirty-five small buildings or shacks on, to wit, the-day of April, 1899.
    “ 3. The plaintiff claims of the defendant the other and further sum of five hundred dollars damages for a trespass by the defendant upon the following tract of land, viz: The northeast quarter of the southeast quarter of section two, township sixteen, range seven, in Calhoun County, Alabama, and for tearing down and removing one stable building on, to wit, the-day of April, 1899.
    “4. The plaintiff claims of the defendant the other and' further sum of five hundred dollars damages for a trespass by the defendant upon the following tract of land, viz: The northeast quarter of the southeast quarter of section two, township sixteen, range seven, in Calhoun County, Alabama, and for tearing down and removing a large number of small buildings or shacks, to wit, thirty-five, on, to wit, the-day of April, 1899.
    “ Pelham & Acker,
    
      “Attorneys for Plaintiff.
    
      “ COMPLAINT.
    
      P. Leyden, 'plaintiff v. O. J. Houser, defendant.
    
    “ The plaintiff claims of the defendant the sum of three hundred dollars as damages for a trespass by the defendant upon the following lands, to wit: The northeast quarter of southeast quarter of section 36, T. 15, R. 7, and southeast quarter of northeast quarter of section 36, T. 15, R. 7, and southwest quarter of northwest quarter of section 21, T. 15, R. 8, in Calhoun County, Alabama, belonging to the plaintiff, and for tearing down and removing one stable building, one mess hall, and several small buildings or shacks, on, to wit, the-day of April, 1899. Plaintiff claims of defendant the other and further sum of three hundred dollars as damages for a trespass by the defendant on the following lands, to wit: The northeast quarter of southeast quarter and southeast quarter of northeast quarter of section 36, T. 15, R. 7, and southwest quarter of northwest quarter of section 36, T. 15, R. 8, in Calhoun County, Alabama, in the possession of the plaintiff, and for tearing down and removing one stable building, one mess hall, and several small buildings or .shacks, on, to wit, the-day of April, 1899.
    “E. IÍ. Hanna,
    “ Matthews & Whiteside,
    
      “Plaintiff's Attorneys''
    
    XI.
    AMOUNT 03? JUDGMENT AND COSTS PAID BY CLAIMANT IN THE TWO CASES.
    Judgment and costs in suit of Della K. Owen v.Petitioner, in circuit court of Callioun County, Ala., said judgment rendered May 2, 1900-$176.70
    Attorney’s fees in defending said case-'- 30. 00
    Judgment and costs in the suit of J. P. ‘Ley4en v. Petitioner, in tlie circuit court of Calhoun County, Ala., said judgment rendered April 30, 1901- 191. 50
    Attorney’s fees in defending said case- 40. 00
    Total_ 438. 20
    
      Mr. Benjamin Miaou for the claimant. Messrs. Herbert c& Miaou were on the brief:
    The Government, by all its acts and representations relative to this sale of structures, in their nature temporary, and as buildings of value only to the Government, and to purchasers valuable only for the lumber in them, induced the claimant to believe it had a right to make the sale and as the purchaser that he would be safe in tearing down the structures and removing the lumber, and on this belief, induced by the acts and representations of the Government, claimant purchased, paid his money, tore down the structures, and removed the lumber. Wherefore the Government can not now set up as a defense to this suit that it did not have the right to sell this property and permit it to be removed. (Bishop's Contracts, enl. ed., 281, n. 2; Atlantic Dredging Co. v. U. 8., 35 C. Cls. R., 483.)
    It is a question of fact whether a particular res belongs to that class of property known as personal or belongs to real property, and it is upon the misrepresentation of this fact that the estoppel of the Government is based. (Williams's Beal Property, p. 1; Darlington's Personal Property, p. 11.)
    The United States Government through its duly authorized agent expressly warranted its title to this property, although an implied warranty of title would have arisen from the mere sale of this personal property. The United States Government is liable upon a warranty of title. • (Brandt v. U. 8., 5 C. Cls. R., 313, 317; Atlantic Dredging Co. v. U. 8., 35 C. Cls. R., 463; Bishop's Contracts, enl. ed., sec. 243.)
    Upon an action for the breach of a warranty the Government is liable for the full amount of the damages occasioned by such breach. (Atlantic Dredging Go. v. U. 8., 35 C. Cls. R., 463.)
    Even if the agent exceeded his authority by giving an express warranty of title at the sale, the United States Government has ratified his act by accepting and retaining the purchase money with full knowledge of such representation. (Fremont v. U. 8., 2 C. Cls. R., 476; Brown v. U. 8., 6 C. Cls. R., 171, 197.)
    The record of the judgment against C. J. Houser by Della K. Owen is conclusive evidence against the Government of the a-mirant of such judgment and the costs of the suit; that is to say, that the claimant had been damaged to that extent by the suit. (Bobbins v. Chicago, 4 Wall., 657; Lovejoy v. Murray, 3 Wall., 1; Waples v. U. 8., 16 C. Cls. R., 127, 157;. Atlantic Dredging Co. v. V. 8., 35 C. Cls. R., 483.)
    “ Judgment against plaintiff in action of which defendant had notice. — When the money sued for was paid, pursuant to a judgment recovered by the third person against plaintiff, the judgment is competent evidence against the defendant to prove the fact of the judgment and the sum paid. * * *
    In these cases the judgment recovered is conclusive evidence against the present defendant, both as to the damages and costs.” {Abbott’s Trial Evidence, p. 2G1.)
    
      Mr. Eranlelm W. Collins (with whom was Mr. Assistant ■ Attorney-General Pradt) for the defendants:
    It has been repeatedly held that a public officer is limited in the exercise of his capacity as an agent of the United States by the positive commands of statute law and can only bind the Government when he has express authority to do the very thing and make the very promise or agreement which he did do or make.
    The case of 'Whiteside v. United States (93 U. S., 256-257) is instructive and determinative of the principle herein contended for. (See also Story on Agency, 6th ed., 307 A; Lee v. Monroe, 7 Cranch, 376; Mayor v. Eselibaclc, 17 Md., 282; States v. Hayes, 52 Mo., 578; Delafield v. State, 26 Wend., 238; Mayor v. Reynolds, 20 Mel., 10.)
    It has been held that the promise of a Cabinet officer or any other agent of the Government to pay money or obligate the Government for the payment of money, if made without authority of law, is absolutely void. (Stanisbury, 8 Wall., 33.)
    By a parity of reasoning, it must be held that in the case at bar, no authority having been given to the depot quartermaster at Anniston to enter into the agreement with, or make the guaranty to, prospective purchasers of property sold at that time and place to protect them in the removal of the same at a future date, such agreement or guaranty made by such officer is absolutely void.
    The United States does not guarantee the capacity, fidelity, or integrity of its officers or agents, and people dealing with them are bound to know the extent to which such officers or agents have authority to bind the Government, and their ignorance of this fact can not increase the Government’s risk. {United States v. Beebe, 180 U. S., 343-354; Dox v. Postmaster-General, 1 Pet., 318-325; McEVrath v. United States, 12 C. Os. B., 201-216, affirmed upon appeal in 122 U. S., 426, cited with approval in United States v. Wisconsin R. R. Oon 164 U. S., p. 207; Hume v. United States, 132 U. S., 406; Mojfatt v. United States, 112 U. S., 24-31; Steel v. United States, 113 U. S., 129; United States v. Barlow, 132 U. S., 271.)
    It lias been held that a subordinate officer of the United States can not alter or change a contract. (Femps case, 28 C. Cls. E., 322.)
    While it is true that the depot quartermaster, Captain Forrest, claims to have entered into an agreement with the owners of the respective tracts of land on which the buildings in question were situated whereby purchasers of the buildings and effects sold were to have until April 15 to remove the same, nevertheless, as to this alleged agreement also no authority is shown to have been granted to or lodged in the said Forrest to enter into the same, and hence this is a nullity.
    The authorities cited in claimant’s brief are not applicable to the case at bar or to the principles involved therein. It is not contended that the Government had no right to sell the property in question or permit its removal. The whole contention is that the agent of the Government exceeded his authority in making the guaranty to protect purchasers in the removal of this property at a future date; in other words, his sole authority Avas to sell the property for immediate delivery, and any guaranty which he made outside of this authority is not binding upon the United States, and is, in fact, void.
    But if the question of the depot quartermaster’s authority in the premises is passed over, it is further submitted that such a contract, to haAm binding force, must be committed to Avriting and ‘signed by the parties, as provided by section 3744 of the Eevised Statutes.
    The authorities cited by learned counsel for claimant relat- ■ ing to Avarranty of title are likeAvise inapplicable. There was no question about the title to this property, and had the purchasers removed the property immediately there Avould have been no difficulty. The Avhole trouble arises, as suggested before, in the failure of the claimant to so remove the property, relying, as he claims to have relied, upon the so-called representations and guaranties of the depot quartermaster, which he should not have relied upon, but rather should have looked to the landowners themselves and protected himself accordingly. If the defendants’ view of the case be sustained, then the authorities cited by the claimant ■ are not. applicable to the case at bar or the principles involved therein.
    Without abatement of confidence in the correctness of the foregoing propositions, 'it is respectfully urged that should judgment in any event be rendered in claimant’s favor, it should only include the amount of judgment and costs recovered against him in the courts where the cases were litigated,, and should not cover and include attorneys’ fees, which can not be allowed. The authorities on this point are numerous and decisive. A few only are cited: Flanders v. Tweed, 15 Wall., 450; Day v. Woodworth, 13 Plow., 363; Oelrichs v. Williams, 15 Wall., 211; Stetoart v. Sanneburn, 98 U. S., 187; United States v. Nuestra Señora de Bagla, 17 Wall., 29.
   WeldoN, J.,

delivered the opinion of the court:

In the year 1898 the United States built a number of shacks, mess halls, stables, and hospitals near the town of Anniston, in the county of Calhoun, State of Alabama, on land belonging to different individuals, and after the close of the war, to wit, in March, 1899, the buildings were sold at public auction by the depot quartermaster of the United States to the claimant and Thomas L. Houser for the sum of $1,385. Said Plouser died on the 17th of April, 1901. At the time of sale the quartermaster announced to the public that the party purchasing the buildings would be put in immediate possession of the property and could remove the same at any time prior to the 15th of April, 1899. On the next day after the purchase the claimant proceeded to pull down and remove the buildings purchased as aforesaid. At the time of the purchase a part of the land ivas owned by E. F. Sawyer, and at the time the United States took possession another portion of the land was owned by W. J. Edmundson, who, on the 21st of March, 1899, sold it to John P. Leyden. After the sale, and before the 15th of April,. 1899, Sawyer sold the land to D. K. Owen.

Before the 15th of April, 1899, and before the removal of the buildings, Edmundson notified claimant that he had sold the land to Leyden, and in the name of Leyden notified claimant not to remove the buildings, of which the quartermaster was notified, who sent men from his office and put claimant in possession, with instructions to claimant to remove the buildings.

The claimant removed the buildings on the Yth of April. He was notified on the 12th of April, 1899, not to remove the buildings from the land sold by Sawyer to D. K. Owen; but at that time the quartermaster having removed from the post no notice was given to him as to the claim of. Owen. At the time of sale the purchasers did not know on whose lands the buildings were located, nor what arrangements there were between the United States and the owners; but relied solely upon the rejoresentations of the quartermaster and auctioneer as to right of removal and the obligation of the United States to put the purchaser in possession.

After the removal of the buildings by the claimant Owen brought suit in the Circuit Court of Calhoun County, Ala., in trespass, and recovered a judgment against the claimant for the sum of - $150 and cost of suit. Leyden also brought a suit in the same court, claiming a larger damage than was claimed in the Owen suit, and after the trial of the Owen suit the claimant settled the claim of Leyden for the sum of $125. The district attorney of the United States was notified by the counsel of the claimant of the pendency of the suit of Owen, with a full statement of the facts, and the xlttorney-General of the United States was advised by the district attorney of the pendency and character of the proceedings.

The findings disclose the fact that the district attorney of the United States was fully advised in the premises as to what the issues were, when the case would probably be tried, and every .reasonable opportunity given him to assist in the defense of the title of the claimant. No effort was made upon the part of the defendants to furnish the claimant with any evidence of the right of the United States to remove the buildings, although the proper officer of the United States was specially requested to assist in that very essential particular.

The settlement of the Leyden case was made by the advice of counsel after the trial of the Owen case before a jury in a court of competent jurisdiction.

The suits in the Circuit Court of the State were actions of trespass, and the gravamen, as will be seen by the allegations of the complainant, was the destruction and removal of the buildings, there being no alleged trespass to the land beyond the mere removal of the property, which was purchased by the claimant from the United States, with an express asseveration of the title of the United States and their right to move the same. The purchase was a joint purchase by Charles J. Houser and Thomas L. Houser, who died in 1901, but the suits in which the claimant was required to pay were against the claimant alone and he alone paid the amounts of the judgments.

The proceeding legally stated is to recover the sum of the two judgments and costs rendered against the claimant because of the failure of title to the buildings sold by the United States, and the further failure of the United States to defend the title when assailed by the suits in the court of Alabama after being properly notified of the pendency of such suits. It is contended on the part of the defendants that they are not bound by the alleged agreement or guaranty by the quartermaster, for the reason that it is not shown that he was empowered to make such a guaranty, and hence it is not binding on the United States; that the representations were ultra vires and no responsibility attaches.

It is a general principle sustained by many authorities, that the officers of the United States in their official capacity are special agents acting within legally prescribed limitations, that beyond those limitations no responsibility attaches to their acts as against the Government; and where an officer acts in subordination to the authority of a superior officer he has no discretion to bind the United States beyond the limits of his delegated powers. (Ferris v. United States, 28 C. Cls. R., 332; McElrath v. United States, 12 C. Cls. R., 201; Hume v. United States, U. S. R.., 406; United States v. Barlow, 132 U. S. R., 271.) But tlie question is, Do the facts of this case 'bring it within the legal effect and theory of those cases ?

The depot quartermaster,while subordinate to the general jurisdiction and control of the Quartermaster-General, is he not the general agent of the defendants in the purchase of all necessary supplies for the Army, and the incident right when directed so to do, to sell the refuse and unnecessary supplies not needed for the use of the Army ? That the depot quartermaster was authorized to sell the property as he did is shown by the fact that the proceeds of the sale was paid into the Treasury of the United States, and the only ground assigned for the nonpayment of the claim by the Quartermaster-General is that thei'e is no appropriation from which the amount can be reimbursed to the claimant.

That condition brings the discussion of the question of liability to the inquiry, whether the depot quartermaster had the right and .did warrant the title which was attempted to be transferred to the purchasers.

The property was sold as the property of the United States bjT an authorized agent of the United States at public sale, and before any bidding took place it was announced in the presence of the quartermaster that the party who purchased the buildings would be put into possession immediately, and could remove the buildings any time before the 15th of April, 1899.

After a notice to the claimant of an adverse title on the part of one of the owners of a part of the land on which the houses were situated, the claimant was put into absolute possession of a part of the property by a detail of soldiers ordered by the military authorities. As a matter of fact, the claimant took possession of all the property and removed the same before the time limited by the terms of the sale.

Tt may be fairly assumed from the facts and circumstances of this case, and the kind and condition of the property that it, and that being true, a different state of law arises on the question of the implied warranty of title than if the defendants were not in possession.

It is a general rule that in the sale of property no implied warranty of quality or goodness arises from the fact of the sale, but not so with the matter of title. If the seller is in possession, by the weight of the American authorities, there is an implied warranty of title, and the seller becomes liable upon a failure of title. (Deatz & Sterling, 38 C. Cls. R., 355; Thurston v. Spratt, 52 Mo., 202; William v. Sammons, 34 Ala., 691; Burt v. Duvay, 40 N. Y. (1 Hand), 283; Linton v. Porter; 31 Ill., 307.) Where goods are not in the possession of the seller a different rule prevails as to an implied warranty.

The court’s attention is called to the case of Brandt v. United States (5 C. Cls. R., 313), in which it is said:

“ The sale having been conducted under authority of the Government, and the bonds fair on their face, in the possession of its lawful agents, an implied warranty of title results, which the claimant has the right to insist on in this- court. He bought in good faith and without notice of the inherent defects in the bonds, but as it turns out he took nothing by his purchase. His money is wrongfully in the treasury, and an implied contract results, in the nature of a contract for money had and received; whereby he can, on the plainest principles of common justice, maintain this action to recover it back.”

And also Atlantic Dredging Company v. U. S., 35 C. Cls. R., 463; Bishop's Contracts, enl. ed., sec. 243.

If it should be conceded, that the United States were not in the actual and absolute possession of the buildings at the time of sale, the assurance of the quartermaster, that the purchaser would have the right of entry until the 15th of April, 1899, was such an assurance as amounted to a warranty that up to that time the United States had good right and authority to convey a title to the property. The officer acting in behalf of the United States acted in good faith in the matter; he thought thé United States had a right to remove the buildings within a certain time, and upon the faith of that belief he assured the public that the purchaser would have sufficient time to remove the same; and for the purpose of giving his principal the benefit of that condition, the announcement was made of the right of removal. If it had been understood otherwise, no sale probably could have been made. The defendants have profited by the assurance of the right of removal, have failed and refused to defend the title of the claimant, liave received the -benefit of that assurance, and still retain it to the prejudice of the claimant.

Considering the circumstances under which the sale was made, and the character of the property, the court is of the opinion that there was an implied warranty of title, but aside from that consideration the findings show that there was an express assurance that the claimant should have the right to remove the property within a certain time which in itself amounted in law to an express warranty of title on the part of the United States, and the property having been removed within the limitation of time, there was no fault on the part of the purchaser to vitiate the legal effect of that assurance.

The question of the right of the claimant to recover reasonable attorneys’ fees is one of the contentions of the case, the defendants denying that right.

It was the duty of the claimant to defend the title of the property in order to protect himself and the collateral obligation of the defendants, and the employment of competent counsel to assist in the defense was one of the obvious and necessary ways to discharge that duty.

Mr. Sutherland in his work on the subject of damages cites a very large number of cases of many of the States and England, and from them deduces the following as the result:

“ On principle, and the weight of authority, where the prosecution or defense of suits is rendered necessary, naturally and proximately, by a breach of contract or any wrongful act, the costs of that litigation, reasonably and judiciously conducted, incurred or paid, including reasonable counsel fees, are recoverable as part of the damages.” (1 Sutherland Damages, 142.)
“ Where there is an implied or express indemnity which •covers the consequences of being sued and having to defend an action, all the usual concomitants of such a situation are necessarily within the contemplation of the parties, and if there is no objection of improvidence or bad faith, the expense of •counsel is obviously as proper to be allowed as that of witnesses or the services of the clerk of the court or the sheriff.” (1 Sutherland Damages, 139.)
“ So a party who sells property with express or implied warranty of title is liable for the costs of a successful action,, as well as damages recovered therein, against his vendee, by which such title is overthrown, .and the vendee dispossessed or compelled to pay for the property to another person.” (1 Sutherland, 140.)

There is a difference in the claim made by the plaintiff in the Owen and Leyden case. In the latter case no notice was served on the district attorney of the United States or any other responsible agent or officer of the Government, the correspondence and notice being confined to the bringing and pending of the Owen case, and notwithstanding the authorities of the United States did not attempt to assist in the Owen case, it does not follow that they might not have assisted in the defense of the Leyden case.

The judgment in the Owen case is binding on the defendants in that case because they had notice of the suit, but in the Leyden case no notice having been given the United States are not estopped by the judgment; and there being no judgment in that case establishing a liability on the defendants, consequently no allowance can be made in this proceeding.

Judgment will be entered for $206.70, as shown in the conclusions of law.  