
    HENRIETTA M. PAYNTER et al. v. THE UNITED STATES.
    [No. 14376.
    Decided April 5, 1886.]
    
      On the Proofs.
    
    Realty in Tennessee is sold under the direct tax acts. The claimants concede that they remained in possession till one of them, owning a life estate, made a conveyance to a third party. The Secretary of the Treasury decides in another case that a delinquent owner “if he remain forcibly in the possession of the land” is not entitled to the surplus, and refuses payment in this.
    
      I.The owner of property sold under the direct tax acts, 1861, 1862, was not hound to vacate before a demand for possession, and is entitled to a surplus iu the Treasury unless debarred by some act committed after the sale prejudicial to the rights of the purchaser in the nature of an equitable estoppel. Whether retaining possession forcibly would defeat the right, query?
    
    II.It canuot be inferred that the possession of the former owner after sale was forcible, nor that a conveyance to a third person was adverse to the purchaser.
    III.Tho Government did not warrant the title to lauds sold under the direct (.ax acts, and with the sale ceased to have an interest in the land.
    
      The Reporters’ statement of the case:
    The following' are the facts as found by the court:
    I. Certain real estate, known as part country lot 520, Auction street, 1 acre, situated in Memphis, Tenn., was, June 25, 1864, sold by the direct tax commissioners-in Tennessee for non-payment to the United States of direct taxes thereon, and was sold and struck off to William J. Smith and Fielding Hurst for the sum of $300. The charges against the property amounted to $25.49, leaving a balance as surplus of $274.51.
    II. At the time of the sale, and at the time of bringing this action, Henrietta M. Paynter was the owner of a life interest in the property, with remainder to her children, and in the event that she died without children, then to her husband. O. W. Paynter, claimant herein, is her only child, and Henry H. Paynter, also a claimant herein, is her husband.
    III. Claimants never bought in the tax title of said Smith and Hurst, and never quit possession of said real estate, and have not released title to the Government, but remained in possession of the property until Henrietta M. Paynter made a conveyance thereof in some form to one Walt.
    
      Mr. Gilbert Moyers for the claimants :
    We show title, a tax sale, and the amount of the surplus in the Treasury.
    
      Mr. Heber J. May for the defendants :
    We stand on the claimants’ admission that they were never dispossessed, and on the former ruling of the court that they cannot have the land and the surplus both.
   Dayis, J.,

delivered the opinion of the coart:

This is an action to recover the surplus proceeds of real estate situated in Memphis and sold for direct taxes in 1864. It appears that after the sale the claimant did not surrender-possession of the premises; she was not ousted, nor, so far as is shown, was any step taken by either the Government or the purchasers to eject her. At a later day she made some kind of' conveyance of the property to a third party. The nature of this conveyance and the amount of consideration do not appear. The claim was presented to the Treasury and rejected upon the authority of a ruling by the Secretary in another case, wherein he held:

“ Inasmuch as the principal object of the direct tax laws is to collect the tax from delinquent owners of land by a transfer of the title and possession thereof from the owners to the purchasers at the sales, such delinquent owners, or their legal representatives, cannot in any case be entitled to the surplus proceeds of a sale if they remain forcibly in the possession of the land sold, or unless they procure an assignment of the direct tax title by the payment of a Amiuable consideration therefor to the purchaser, his heirs, or assigns.” (Int. Eev. Rec., vol. 30, p. 125.)

The Secretary, it will be noticed, bases his decision upon equitable reasons, and upon a case wherein possession was forcibly retained after the sale. We are not prepared to express an opinion as to the legal result, should such a case be presented to us. The Paynter claim, although refused at the Treasury upon the authority of this decision of the Secretary, does not appear to fall within its effect. The findings show not that Mrs. Paynter remained forcibly, but simply that she' did not surrender the premises to the purchasers, and it does-not appear that any effort, not even a demand, was made by the purchasers for their property. It was probably too much to expect that she should voluntarily seek them out in adAranceof any request or movement on their part, and while possibly in ignorance of their whereabouts, and not impossibly of their very names; and we cannot presume that she committed acts prejudicial to their rights, or such as to create a defense to this action, something in the nature of an equitable estoppel.

It may be that she remained on the property with the tacit assent of the purchasers, or that they were not sufficiently interested in it to take action of any kind to obtain possession ; but all tliis is pure speculation, and the findings, as they stand, compel a presumption of innocent intent upon her part; If she remained forcibly, that, fact might, perhaps, establish a defense, but it is a fact to be proved and not to be inferred.

The same reasoning applies to the conveyance she made to a third party after the sale, and it may, in the lack of' other proof, be assumed to be in the nature of a conveyance to remove a cloud upon the title, which she certainly had a right to make, and which was an act in aid of the Government’s title to the tax-sale purchasers.

The surplus, under the provisions of the statute, is to be paid to the “owner of the property or his legal representatives.” The claimants, at, the date of the sale, had title to the property, and unless debarred by some act committed after the sale, clearly must recover the proceeds. Whatever legal right the tax act could take from them had been taken ; whatever title the tax act could pass had vested in the purchasers. The principal object of the act had been accomplished in that the Government had received its due, and considerably more, while to the purchasers the courts were open to obtain possession of their property should it not be surrendered peaceably. The Government did not warrant the title, and had ceased to have any interest or concern in the land, other than a general desire that other sales should not be embarrassed by a known disposition on the part of the owners to refuse possession to the purchasers.

We cannot assume that the claimant endeavored to defeat this desire by impairing the title intended to be given, and, in fact, this action may involve an acknowledgment on her part perhaps sufficient to estop her, or those holding under her, from an attack hereafter upon that title.

Judgment will be entered in favor of the claimants for $274.51.  