
    Treadwell S. Ayres v. The United States.
    
      On the Proofs.
    
    
      During the military occupancy of Memphis, the quartermaster sends his clerk to procure quarters for the pay department. The clerk takes possession of the claimant’s building, and at the time assures him that he will he paid a reasonable rent. The claimant thereupon consents to the possession. The building continues in the possession of the pay department more than two years. No lease is ever executed nor promise given by the quartermaster, nor rent paid, nor is the building returned as one rented.
    
    I. Where a quartermaster in Memphis, during the war of the rebellion, orders a clerk to procure a building for the pay department, and the clerk, without authority, promises the owner a reasonable rent, who thereupon consents to possession being taken by the defendants, the promise does not bind the defendants, and the act does not constitute a renting of the premises, but is to be deemed military occupancy and appropriation.
    II. The Court of Claims has not jurisdiction of a case for the occupation of a building in Memphis by military authority during the rebellion, there being no valid lease. Such an occupancy is an appropriation of property within the meaning of the act 4th July, 1864, (13 Stat. L., p. 381.)
    Messrs. Owen and Wilson for tbe claimant:
    T. S. Ayres was tbe owner of a fine block of buildings in tbe city of Memphis. It was 74 feet front, 148 feet deep, four stories bigb, with an iron front, and cost, before tbe war, the sum of $100,000. It was built in 1860, and in January, 1863, tbe owner rented certain rooms in tbe upper stories, or rather tbe entire upper stories, to tbe United States by a verbal lease, the time to be indefinite, and the amount to be a fair and reasonable rent.
    Upon the presentation of the claim for rent to the Quartermaster General, he refused payment upon the ground that Memphis was a hostile city, captured from the enemy, and that it and everything in it became prize of war.
    Upon trial the plaintiff will contend:
    1. That he was loyal to the United States government, and never afforded aid or comfort or gave encouragement to the rebellion.
    2. The contract was valid and binding on the United States.
    3. It cannot be considered prize of war, as claimed by the Quartermaster General.
    “Memphis was a hostile city, captured from the enemy, and it and everything in it became prize of war.” — Q. M. G/s decision.
    This doctrine is odious and without any foundation, either by civil statute or international law, or by the laws of war. The contrary is the true doctrine.
    General Order No. 100, Adjutant General’s Office, War Department, April 24, 1863, par. 38; The Venice, 2 Wallace; Proclamation of President Lincoln, April 15,1861; Message to Congress, July 4,1861; Resolution of Houses of Congress, July 22 and 27, 1861; Broten v. The United States, 8 Cranch, 110; Mitchell v. Harmony, 13 Howard, 1-15; Constitution of the United States, Art. 5, Amendments.
    4. The rooms were occupied and used as charged.
    5. The rent charged is reasonable and fair.
    It is respectfully submitted that we have shown the renting of these rooms, the agreement to pay a reasonable rent, and if not, the law implies such an agreement; their use and occupation for the time charged; the reasonableness of the rent charged; and we ask judgment for the sum of $7,815.
    The SOLICITOR for the defendants s
    This is an action brought for the use and occupation by the army of the United States of rooms in a certain building in the city of Memphis, Tennessee, from the 6th day of January, 1863, to the 14th day of February, 1865.
    Captain A. R. Eddy, chief quartermaster for the district of West Tennessee, in his testimony, says s “ This building was held by the United States like many others in the city, for government use, without compensation from the quartermasters’ department, the owners being presumed to be disloyal unless the contrary was shown.”
    The verbal promise of Mr. Hill, who was not an officer of the United States, that the government would pay rent, was a mere volunteer promise on his part and not obligatory on the government. The city was under military occupation. The duty of Mr. Hill was to select a building, not to make a contract of lease.
    The act of February 19, 1867, entitled “ An act to declare the sense of an act entitled ‘An act to restrict the jurisdiction of the Court of Claims, and to provide for the payment of certain demands for quartermasters’ stores and subsistence supplies furnished to the army of the United States,”’ determines the question of jurisdiction in this ease, and relieves us of the necessity of discussing the question of the rights of war, the loyalty of the claimant, or whether or not the statute of frauds as to contracts relating to real estate applies to this case.
    This statute declares: “ That the provisions of chapter 240 of the acts of the thirty-eighth Congress, first session, approved July 4, 1864, shall not be construed to authorize the settlement of any claim for supplies or stores taken or furnished for the use qf, or used by, the armies of the United States, nor for the occupation of, or injury to, real estate, nor for the consumption, appropriation, or destruction of, or damage to, personal property, by the military authorities or troops of the United States, where such claims originated during the war for the suppression of the southern rebellion in a State, or part of a State, declared in insurrection by the proclamation of the President of the United States, dated July 1, 1862, or in a State which by an ordinance of secession attempted to withdraw from the United States government: Provided,, That nothing herein contained shall repeal or modify the eflect of any act or joint resolution extending the provisions of the said act of July 4, 1864, to the loyal citizens of the State of Tennessee, or of the State of West Virginia, or any county therein.”
    It will be seen by reference to the first section of the act of July 4, 1864, “ that the jurisdiction of the Court of Claims shall not extend to or include any claim against the United States, growing out of the destruction or appropriation of, or damage to, property by the army or navy engaged in the suppression of the rebellion, from the commencement to the close thereof.”
    The second and third sections of that act provide that all claims of loyal citizens not in rebellion, for quartermasters’ stores and subsistence “actually furnished to the army of the United States, and receipted for by the proper officer receiving the same, or which may have been taken by such officer without giving such receipt,” may be submitted to the Quartermaster G-eneral where stores, and to the Commissary General where subsistence, has been furnished, and if those officers are satisfied that the claims are just, they are to report such cases to the Third Auditor for settlement.
    The extension of the act of July 4, 1864, to the loyal citizens of Tennessee, by the joint resolution of July 28, 1866, and which is referred to in the act of February 19, 1867, of course has reference to the second and third sections of that act, which provide for a mode of obtaining payment for quartermasters’ stores and subsistence.
    The act of February 19, 1867, in addition to the words “ claims against the United States growing out of the destruction or appropriation of, or damage to, property by the army or navy,” found in the first section of the act of 1864, and which applies to loyal and disloyal citizens alike, and whether of loyal or disloyal States, uses the words, “nor for the occupation of, or injury to, real estate.” These words plainly exclude this case from the jurisdiction of this court.
    But if this statute did not exist, the claimant could not recover in this court. It will be seen, by reference to the testimony, that the city of Memphis was taken from the enemy in a time of war, that it was in a state of siege, and that martial law prevailed. When the military took possession of property they held it by the right of war, and did not recognize the relation of landlord and tenant. The occupation was in the highest sense adverse.
    This court can take no jurisdiction in this case unless it is founded on a-contract express or implied. There was no express contract on the part of the government, because the person who made the promise had no authority. The use and occupation did not raise an implied contract, because the possession was adverse. “ Assumpsit for use and occupation cannot be supported when the possession is adverse, and the relation of landlord and tenant has never subsisted between the parties.” (Ghitty on Pleading, 107.)
   Casey, C. J.,

delivered the opinion of the court:

The claimant in January, 1863, was the owner of certain real estate in the city of Memphis, Tennessee. And on the sixth day of that month the premises were taken possession of by one Edward R. Hill, a clerk employed by and under the direction of Captain A. R. Eddy, an assistant quartermaster in tlie United States army. Captain Eddy had instructed Hill to procure rooms for offices of the pay department belonging to the army under General Grant. Mr. Hill called upon the claimant, in reference to the occupation of his property, the latter assenting. Hill assured him he would be paid a reasonable rent for the use of the premises., Some time afterwards, the medical department proposing to take the rooms for hospital purposes, an order was issued by the commanding general assigning them to the use of the pay department. They were occupied in this manner until some time in February, 1865, when they were vacated and surrendered to the claimant. The amount demanded is $7,815, and the evidence shows that the premises were reasonably worth that sum for the time occupied. No written contract was made, and no rent specified, nor was any rent ever paid by Captain Eddy or any other officer for or on behalf of the United States. Captain Eddy was examined as a witness in the case, and says “this building was' held by the United States, like many others in the city, without compensation from the quartermasters’ department, the owners being presumed to be disloyal unless the contrary was shown.” He further testifies that he was subsequently well assured that Mr. Ayers was a loyal man, and the other testimony in the case leaves but little doubt on that subject. The city had been captured by the United States forces in June, 1862.

Upon this statement of facts the United States resist a recovery on two grounds:

1. That it was such an “ appropriation ” of property by the army, as ousts the jurisdiction of this court under the act of July, 4, 1864.

2. That no such contract has been shown as would maintain this action. There is nothing in the evidence that satisfies us that Mr. Hill had any competent authority to bind the United States for the payment of rent. His duty and authority were to select rooms. The quartermaster must make the contract, or at least ratify what Hill has done. Instead of that he kept possession of the premises for two years and more, without paying any rent, or even acknowledging that any was due.

Under these circumstances we can only regard it as an appropriation of property by the army, and therefore excluded from our jurisdiction by the express terms of the act of July 4, 1864.

The petition must be dismissed.  