
    J. HENRIETTA HOFFELD, Executrix of Rudolph Hoffeld, deceased, v. THE UNITED STATES.
    [No. 21872.
    Decided January 21, 1901.]
    
      On the Proofs.
    
    The entrymen of cértain public land convey their title to a coal company. The tract of land, with other property, is sold under an execution against the company to the claimant. Subsequently the entry is canceled by the Land Office because of defects in the affidavits furnished by the entrymen. The purchaser brings suit to recover back the money paid by the entrymen.
    I. Theyicí June 16,1880 (21 Stat. L., p. 287, § 2), provides that in case of conflict, or where from any cause an entry has been erroneously allowed or can not be confirmed, the Secretary of the Interior shall repay to the person who made such entry, or to his heirs or assigns, the amount of the purchase money, etc. The right to reimbursement under the statute is confined to those persons, viz, the person who made the entry, or his heirs or assigns. It does not extend to a purchaser at a judicial sale.
    II. The doctrine of caveat emptov applies to a judicial sale; the purchaser buys without the rights and benefits of covenants of warranty which might inure to an ordinary purchaser. (See the same case, post.)
    
    
      The Reporters’ statement of the case:
    The following are the facts of the case as found by the court:
    I. On May 28, 1886, there was entered by Harry Jones, J. L. Cole, Charles L. Weaver, and Sarny Perri, through William Hinds, acting in their behalf under a power of attorney, the NE, i- section 35, township 14 S., range 87 W., of the' sixth principal meridian, as coal entry No. 13, at' Gunni-son, Colo., the sum of $3,200 being paid therefor.
    II. The affidavit required by section 32 of the Coal Land Regulations wras not made by the several entrymen, but by the said William Hinds as attorney in fact. This affidavit was held to be insufficient by the General Land Office on April 12, 1888, and the local land officers were directed to notify the claimants to that effect. No report having been received from the local officers of their action under said instructions, such report was called for by the General Land Office on August 11, 1891. On August 27,1894, the local officers reported that two of the entrymen were reported dead; that Perri and Cole were no longer residents of Colorado; that their whereabouts could not be ascertained; that none of the entrymen had anjr interest in said tract of land at that time; that the representatives of the present owners, W. L. Youle, stated that the evidence required could not be furnished; that no coal in paying quantities existed on said tract, and that the owners are indifferent as to whether said entry is canceled or not. Whereupon the entry was held for cancellation by the General Land Office on October 4, 1894. ' Neither the entry-men nor their assigns took any action in the premises, and accordingly the entry was canceled by the General Land Office on January 24, 1895.
    The affidavit required by section 32 of the Coal Land Regulations is to the effect that each entryman made the entry for his own advantage and benefit, and not, directly or indirectly, for the use and benefit of any other person or persons.
    TIL On May 29, 1886, the- entrymen of said tract of land, to wit, Harry Jones, J. L. Cole, Charles L. Weaver, and Sarny Perri, by their said attorney in fact, W. L. Hinds, conveyed the aforesaid tract of land to the Ohio Creek Anthracite Coal Company. On August 29, 1887, a writ of attachment was issued out of the county court of Gunnison County, Colo., in a suit -wherein Asenath L. Hinds was plaintiff and the Ohio Creek Anthracite Coal Company was defendant, and levied upon the aforesaid tract of land, as well as other land belonging to the said company. On August 23, 1887, a like writ of attachment was issued out of the District Court of Arapahoe County, Colo., in a suit wherein the Hendric and Bolthoff Manufacturing Company were plaintiffs and the Ohio Creek Anthracite Coal Company was defendant, and levied upon the aforesaid tract of land, as well as other land belonging to the defendant company. On November 10, 1887, the aforesaid tract of land “ and other property ” was sold by the sheriff of Arapahoe County, Colo., to Rudolph Hoffeld, at and for the recited consideration of $75, on account of the aforesaid writ of attachment, in the suit wherein the Hendric and Bolthoff Manufacturing Company were plaintiffs and the Ohio Creek Anthracite Coal Company was defendant.
    Subsequently the land in question was sold by the county treasurer of Gunnison County, Colo., to W. T. Lambert, for the nonpajunent of taxes thereon; and subsequently, to wit, on March 5, 1896, by order of the county commissioners of Gunnison County, the county treasurer was “authorized to remit and cancel the assessment and levy °f all taxes now due and unpaid to the county,” because the title and ownership to said land was still in the United States of America.
    IV. On June 10, 1897, William L. Youle, as attorney in fact for Rudolph Hoffeld, made application for repayment of the purchase money paid on said land under the provisions of the act of June 16, 1880, which was denied on November 4, 1897, and again on appeal to the Secretary of the Interior on December 11, 1899, for the reason that said application did not come within the provisions of the said act of June 16, 1880.
    Y. That W. L. Youle made an affidavit re'eiting that the duplicate receipt issued by F. J. Leonard, receiver of the United States land office in Gunnison, Colo., dated May 28, 1886, in the name of Harry Jones, J. .L. Colo, Charles W. Weaver, and Sarny Perri for the sum of §3,200 purchase money for the northeast quarter of section 35, township 14 south, range 87 west, Gunnison, Colo., and for which certificate No. 13, Uto series, was issued, was destroj’-ed by fire June 17,1890; that said affidavit was made on December 23, 1898, and is now on file in the General Land Office.
    VI. Rudolph Hoffeld, on February 24, 1896, executed and delivered a quitclaim deed to the United States for the northeast quarter of section 35, township 14 south, range 87 west, county of Gunnison, State of Colorado. Said deed is on file in the General Land Office, as appears by certified copy now on file in this court.
    
      Messrs. Andrews ds Andrews for the claimant:
    The claimant (or decedent) received no consideration whatever through his assignors from the Government for the 13,200 purchase money invested in the title to this land, and there is a clear obligation which is undisputable on the part of the Government to repajo this money to the claimant.
    
      Section 2 of act of June 16, 1880 (21 Stat. L., 287), reads as follows:
    “In all cases where homestead or timber-culture or desert-land entries or other entries of public lands have heretofore or shall hereafter be canceled for conflict, or where, from any cause, the entry has been erroneously allowed and can not be confirmed, the Secretary of the Interior shall cause to be repaid to the person who made such entry, or to his heirs or assigns, the fees and commissions, amount of purchase money, and excess paid upon the same upon the surrender of the duplicate receipt and the execution of a proper relinquishment of all claims to said land, whenever such entry shall have been duly canceled by the Commissioner of the General Land Office.”
    The Secretary of the Interior having refused to carry into effect the contract of the United States with those who have paid money for public lands to the United States, who, through the errors of the public officials, have received no consideration for the money paid, which contract is embraced in the act quoted supra, the claimant has a clear right to obtain judgment of this court against the United States for the $3,200 which the claimant (decedent), through his assignors, paid to the United States.
    This court in The Anthracite Mesa Coal Mining Company, No. 21112, decided in favor of the claimant. The Secretary of the Interior held that the case at bar was in all respects similar to that case; hence, if the claimant in that case was entitled to a judgment, the claimant in the case at bar is also entitled to a judgment.
    
      A fortiori is this true when it is remembered that in that case the assignment was made two years before the purchase (we think, however, that this question could not be raised upon the record facts of that case), while in the case at bar the assignment was made after the purchase.
    Counsel contends that the applicant herein is not the person who made the entry or the heir or assign of any such person.
    The act of June 16, 1880, reads as follows: “Shall cause to be repaid to the person who made such entry, or to his heirs or assigns.”
    The Interior Department has held that the claim itself can ■ not be assigned, which holding is in accord with section 3477, Revised Statutes, but it holds that the word assigns in the act of June 16, 1880, refers to the assignee or grantee of the land.
    This latter holding is sustained by the act of June 16,1880, which requires the applicant for repayment to surrender the duplicate receipt and execute a relinquishment of all claim to said land.
    ' The first condition could only be complied with by a transferee of the land, and the performance of the second condition by anyone other than the transferee of the land would be of no benefit to the United States, and hence it is clear that the word assigns means the grantee of the land. This court has recognized this construction. (See The Anthracite Mesa Coal Mining-Company, cited supra.)
    
    If the word assigns, as used in the act of June 16, 1880, means the grantee of the land, it is apparent that there is no limitation, cither in express terms or by implication, to grantees by any specific mode of conveyance. In order to give the grantee the benefit of the remedial provisions of that act it is not provided that the transfer to him must be made by a warranty deed. It evidently may be made by a warranty, quitclaim, trustee’s, administrator’s, executor’s, guardian’s, or sheriff’s deed, as the act gives the right to the assign generally.
    When the conveyance was made by the sheriff to Eudolph Hoffeld it passed whatever interest the Ohio Creek Anthracite Coal Company had in the land.
    In Am. & Ang. Ency. of Law (1st ed.), vol. 12, p. 229, it is said:
    “As already stated, the purchaser obtains, where the sale is valid, whatever title the execution defendant had.”
    Id., 225, it is said:
    “As a general rule, the purchaser acquires just such title or interest;as;the execution debtor had.”
    There’is no.Alaiiif in the case at bar that the sale under the execution was invalid', hence it must be presumed to have been valid.
    What passed .by'^that deedl The company could have received one of two, rights under its purchase — the right to receive a patent upon-the entry and thereby acquire complete title’to the land, or the"’’right to obtain the purchase money paid to the United States therefor, if it should subsequently appear that the entry had been erroneously allowed and could not be confirmed.
    The latter was the right acquired by the company, as is disclosed by the report of the Interior Department, and it is this interest that was conveyed -to Hoffeld the company, and consequently the right to the repayment of the purchase monejr is vested in him.
    It will also be observed that the act of June 16, 1880, does not provide that the assigns shall be repaid the amount they paid for the land, but the act reads, “shall cause to be repaid to the person who made such entry, or to his heirs or assigns, the fees and commissions, amount of purchase money,” etc.; that is, the amount of purchase money paid by the entryman. This statute is, in effect, an agreement on the part of the United States to pay the purchase mone3r paid by the entry-man to the entryman, his heirs or assigns.
    If it should appear that the assign paid to the entryman twice the sum paid by him to the Government, he would be limited in his recovery against the United States-to the amount paid it by the entryman, and if the assignee paid the entry-man a small sum, or if it was a devise or gift, the measure of recover}' would still be the amount received by the United States.
    We do not contend that either the sheriff or the Ohio Creek Anthracite Coal Company warranted the title to Hoffeld, but we submit that the latter acquired whatever interest the company had at the date of the transfer, be that interest more or less, and that that interest, as it subsequently transpired, was the right to the repayment of the purchase money paid to the United States.
    The United States can not invoke the doctrine of omeat em/ptor to escape liability, for the reason that the act of June 16, 1880, expressly provides that the assignee shall be repaid the purchase money when the title to the land fails.
    
      Mr.- George II. Gormom (with whom was Mr. Assistant Attorney- General Pradt) for the defendants.
   WeldoN, J.,

delivered the opinion of the court:

The plaintiff, as executrix of Rudolph Hoffeld, brings this suit to recover the sum of $3,200, which paid to the United States in the entry of certain land in Gunnison County, Colo., on the 28th of May, 1886.

The findings of fact show, that on that date Harry J ones, J. L. Cole, Charles L. Weaver, and Sarny Perri, through William Hinds, acting in their behalf under power of attorney, made entry of said land. The affidavit required by section 32 óf the Coal Land Regulations was not made by the several entrymen, but by Hinds as attorney in fact. The affidavit was held to be insufficient by the officers of the General Land Office, on April 12, 1888, and the local land officers were directed to notify the claimants to that effect. On August 27, 1894, the local officers reported that two of the entrymen were dead; that Perri and Cole were no longer residents of Colorado; that their whereabouts could not be ascertained; that none of said entrymen had any interest in said land; that the representative of the present owners, W. L. Youle, stated that the evidence required could not be furnished; that no coal in paying quantities existed on said tract, and that the owners are indifferent as to whether said entry is canceled or not. Neither the entrymen nor their assigns took any action in the premises, and accordingly the entry was canceled by the General Land Office on January 24, 1895. On May 29, 1886, said entrymen, by their said attorney in fact, had conveyed the land to the Ohio Creek Anthracite Coal Company. On August 29, 1887, a writ of’ attachment was issued out of the county court of Gunnison County, Colo., in a suit wherein Asenath L. Hinds was plaintiff and said company was defendant, and levied upon the aforesaid tract of land as well as other land belonging to said company. On August 23, 1887, a like writ of attachment was issued out of the District Court of Arapahoe County, Colo., in a suit wherein the Hendric and Bolthoff Manufacturing Company were plaintiffs and the Ohio Creek Anthracite Coal Company was defendant, and levied upon said tract of land as well as upon other land belonging to said company. On November 10,1887, the aforesaid tract of land and other property was sold by the sheriff of Arapahoe County to Rudolph Hoffeld for the sum of $75, under the said writ of attachment, in the suit wherein the Hendric and Bolthoff Manufacturing Company was plaintiff and the Ohio Creek Anthracite Coal Company was defendant. On June 10, 1897, William L. Youle, as attorney of fact for Rudolph Hoff'eld, made application for repayment of the purchase money paid on said land, under the provisions of the act of June 16-, 1880, which was denied on November 1, 1897, and again on appeal to the Secretary of the Interior on December 11,1899, for the reason that the said application did not come within the provision of said act of June 16, 1880.

The theory upon which the suit is predicated is. that the administrator of Hoff'eld, whose decedent purchased at sheriff’s sale on November 10, 1887, is entitled to the benefit of the statute of June 16, 1880 (21 Stat. L., 287); and to recover the amount paid by the original entrymen through their attorney in fact this suit was brought.

The statute, section 2, provides that “where homestead or timber-culture or desert-land entries or other entries of public lands have heretofore or shall hereafter be canceled for conflict, or where, from any cause, the entry has been erroneously allowed and can not be confirmed, the Secretary of the Interior shall cause to be repaid to the person who made such entry, or to his heirs or assigns, the fees and commissions, the amount of purchase money and excesses paid upon the same, upon the surrender of the duplicaté receipt and the execution of a proper relinquishment of all claims to said land, whenever such entry shall have been duly canceled by the Commissioner of the General Land Office.”

In the view which the court has taken of the rights of the claimants, it is not necessary to discuss 'the question as to whether the entry was properly ma.de or whether it was improperly canceled. It is sufficient for the purposes of this case to examine and determine the question as to whether there are such relations between the claimant, as representative of the decedent, and the entrymen, as will entitle the claimant to the benefit of the statute. The statute provides that in case of conflict, or where from ,any cause the entry has been erroneously allowed and can not be confirmed, the Secretary of the Interior shall cause to be repaid to the person who made such entry, or to his heirs or assigns, the fees and commissions and the amount of purchase money. The right to reimoursement by the terms of the statute is confined to the person who made the entry, his heirs or assigns, and it does not inure to and is not made applicable to any other person. Whatever may be the rights of the original entry men, can it be said that the purchaser at a judicial sale is in such privity of contract or statutory obligation as entitles him to recover on failure of title because of the cancellation of the entry ?

The doctrine of -caveat mnptor applies in all its force to a judicial sale, and the purchaser at such a sale buys the title or estate which the defendants in execution may have, without the rights and benefits of covenants of warranty which inure to the ordinary purchaser. (15 Ill., 395: 25 Ala., 626: 2 Ohio N. S., 36.)

The claim of the plaintiff must bo determined and measured bj1- the statute which authorizes the refunding of the money. The claim is purely of statutory obligation, without any of the elements of a contract or covenant, and must be brought clearly within the terms of the statute before any recoveiy can be had.

A very serious question might arise as to whether the parties or their assigns to the entry could have such a standing-in court as to entitle them to a remedy under the act of June, 1880; but it is not necessarjr to discuss and determine their right of redress, as t'he plaintiff can not rely on their legal or equitable right-of recovery. The plaintiff’s rights are measured by the purchase at the judicial sale, and, those rights being limited by the law which governs judicial sales of realty, no liability’- attaches to the defendant predicated upon an alleged right in entrymon or their assigns. The petition is therefore dismissed.  