
    W. P. WILSON v. THE UNITED STATES.
    [Departmental, 15.
    Decided March 11, 1889.]
    
      On the Proofs.
    
    The case is tried and the principal points of law determined, but it is remanded for further evidence (21 C. Cls. E., 135). The owner of land sold for direct taxes in 1864 purchases the tax-sale certificate in 1872. It is owned by two jointly, but passes to him by actual delivery and transfer by one of the joint owners, and with the apparent acquiescence of the other.
    The written transfer of a tax-sale certificate by one of two joint owners, accompanied by actual delivery and the apparent acquiescence of the other, is sufficient, to establish prima facie the ultimate fact that the claimant is not holding adversely to the tax sale.
    
      The Reporters’ statement of the case :
    The claim or matter in the above-entitled case was transmitted to the court by the Secretary of the Treasury on the 1st day of May, 1884.
    The case having been brought to a hearing on the 7th day of February, 1889, the court, upon the evidence and after considering the briefs and arguments of counsel on both sides, finds the facts to be as follows:
    I. The tract of land described in the petition, situate in the county of Shelby, and in the State of Tennessee, and described as being the south part of lot 204, in the city of Memphis, fronting on Main street 50 feet, with a depth on and adjoining an alley of 148-J feet, was sold for direct taxes on the 25th day of June, 1864, by the tax commissioners appointed and duly qualified under act of Congress approved August 5, 1861, and acts amendatory thereof, to Beuel Hough for the sum of $665. The total amount of charges against the property was $33.22, leaving a balance remaining as surplus of $631.78.
    II. In 1859, Joseph E. Williams, surviving trustee, was the owner of the above-described property, having acquired title thereto by a deed from one Andrew Henderson, in 1843. On the 31st December, 1859, Williams, as trustee, “sold to W. P. Wilson and W. B. Boss,” by what is known in Tennessee as a “title-bond,” the same premises, in which he covenanted “to execute to the said Wilson and Ross, their heirs and assigns, a deed of quitclaim conveyance to said lot upon payment being made” of several promissory notes therein described. On the 7th ofMarch, I860, Wilson conveyed by deed all of his interest acquired by reason of the title-bond from Williams to one R. E. Ohew, which divested him of all interest whatever in the premises. But in April, 1861, W. B. Ross, the other purchaser under the title-bond, conveyed to Wilson his undivided interest in the premises, and Wilson became thereby reinvested with a half-interest in the premises under the title-bond. This was the condition of the title at the time of the tax sale described in the first finding; that is to say, the legal title remained in the grantor Williams, trustee; one half of the equitable estate was in the claimant Wilson ; the other half was in R. E. Chew, and the purchasers were in possession under the title-bond, and paying State«and city taxes.
    III. Subsequently to the tax sale the following conveyances and assignments were made: (1) Joseph R. Williams,trustee,in whom the legal title still was, on July 7,1866, executed a deed of the entire premises to theclaimant,Wilson, individually, wherein it is recited that it is made in pursuance of the sale and title-bond described in finding ii, and that the other purchaser, W. B. Ross, has conveyed his interest in the premises to the claimant ; and wherein it is acknowledged that all of the purchase-money has been paid, and the terms and conditions of the title-bond complied with. The deed also contains a covenant that the grantor will forever warrant and defend the grantee in the title to the premises “against the lawful claims of all persons whatsoever claiming by, through, or under me, but none others.” (2) On the 30th October, 1866, the estate or interest, in the premises which the claimant Wilson had sold and conveyed to R. É. Ohew, as set forth in finding n, was reconveyed to him by one Martin Kelly, to whom it had been sold and conveyed by the executor of Ohew on the 18th January, 1866. This conveyance from Kelly to Wilson contains a covenant that the grantor “is lawfully seized and possessed of the said real estate; that he has a good right to sell and convey the same to said party of the secondpart, and thatthe same is unincumbered, and that he will” “ warrant and defend the title thereto against the claim or claims of each and every person whomsoever.” (3)
    
      On the 16th March, 1872, the tax sale certificate which had been given by the commissioners to the purchaser, Reuel Hough, as set forth in finding i, was transferred and delivered, in consideration of $1,350, to the claimant. This certificate had been divested from the purchaser, Reuel Hough, and vested in Charles Nortrop and Stephen H. De Bevoice by a decree of the Chancery Court of Memphis, entered by consent of parties in a partition suit on the 1st of April, 1870.
    The transfer or assignment of the tax-sale certificate to the claimant was in the terms following, to wit:
    “Mch.16, ’72.
    “ Rec’d from Wm. P. Wilson two hundred dollars cash, and his note at 90 days for $ 1,150.00 payable to and indorsed by W. D. Beard, at the National Bank of Memphis. The same being for redemption and transfer to him of certificate No. 1687, United States direct-tax sale at Memphis for south part lot 204, 50x168 feet. Wilson and Ross claimant-certificate was paid to R. Hough of date June, 1864, and by him transferred to S. H. De Bevoice.
    ' • “S. H. De Beyoice,
    “By Smith and Kettedge,
    
      “Atto’s”
    
    Upon the foregoing findings of fact the court decided as conclusion of law that the claimant was entitled to and should be paid the surplus of $631.78 set forth and described in the first finding.
    
      Mr. Luther E. Filce for the claimant.
    
      Mr. Eeher J. May (with whom was Mr. Assistant Attorney-General Howard) for the defendants.
   Nott, J.,

delivered the opinion of the court:

The chief and important question in this case, viz, whether an equitable owner in possession of real property at the time of a direct-tax sale can subsequently take by deed the legal title so as to become “the owner” of the land and entitled to the surplus within the intent and meaning of the Direct Tax Act 1861 (12 Stat. L., 292, § 36), was decided when the case was previously before the court. The proof which has since been taken renders the case somewhat clearer, and establishes the facts which it was then supposed existed (21 C. Cls. R., 135).

A minor question now arises, viz, whether the claimant has relieved himself from the suspicion of having held the land adversely to the purchaser at the tax sale and of occupying the inconsistent positions of maintaining an entry in the land and of seeking a surplus derived from its sale.

The facts established by the evidence are that the tax-sale certificate, being apparently the property of two joint owners, was transferred and delivered by one of them to the claimant. The consideration paid for the certificate by the purchaser in 1864 was $665, and the consideration paid by the claimant in 1872 was $1,350.

It may be conceded that if the claimant was setting up a title to the land under the certificate, the proof would be insufficient to establish his right to more than a moiety. But the claimant is not setting up such a title, and his right to the surplus does not rest upon it, and the court is of the opinion that the payment by him of $1,350 for the certificate, the written transfer by one of the joint owners, accompanied by the actual delivery of the certificate itself, and the silence and apparent acquiescence of the other joint owner are sufficient to-establish the ultimate fact that the claimant is not holding adversely to the tax sale, and are certainly sufficient to put the Government upon its defense.

The order of the court is that the findings of fact and conclusions of law now filed, together with the opinion of the court delivered February 1,1886, and this opinion, be certified to the Secretary of the Treasury for his guidance and action.  