
    Irene Taylor’s Administrator v. The United States.
    
      On the Proofs.
    
    
      The direct-tax commissioners for the insurrectionary district of Artemisas assess a tax on real property in Little Booh. The tax n-ot bemg paid, they sell the property, in May, 1865, and subsequently pay thesurplus {about $3,000) into the Treasury. In 1874 the oioner applies to the Seoretm-y of the Treasury for the surplus. The Secretary rejects the claim. More tha/n six years after the money was paid into the Treasury, but less than six years after her demand on the Seeretaiy, she brings this action to recover bach the surplus.
    
    I. The statutes of 1861, 1862, 1863, relating to the imposition and collection of direct taxes in the insurrectionary Stat.es, examined and construed.
    
      II. The provision, of the Act 5th August, 1861 ("12 Stat. L., 292), relating to the payment into the Treasury of the surplus of money derived from a sale of property in the insurreotionery districts for the non-payment of the direct national tax, was not necessarily repealed hy the Act 7th June, 1862 (12 Stat. L., 422).
    III. The provision of the Act7th June, 1862 (12 Stat. L., 422, § 12), which disposes of the surplus derived from certain leases and sales of property in the insurrectionary districts, must he confined to the leases and sales authorized hy §§ 9 and 11. It should he extended hack to the sales authorized hy previous sections. As to such sales, the surplus must he hold for tlio owner, pursuant to the provisions of the Act 5th August, 1861 (12 Stat. L., 292).
    IY. Where there is a statutory duty laid on an officer of the government to pay over money on demand, such as a surplus derived from a tax sale, an implied contract to pay it over arises, and an action may he maintained in the court to recover it.
    V. Where a statute provides that the surplus derived from a tax sale shall he paid into the Treasury and hold until the owner makes application for it, the statute of limitations does not begin to run until the Secretary refuses to pay it.
    
      The Reporters' statement of the case:
    The following are the facts as found by the court:
    I. Matilda Johnson, in March, 1863, was owner in fee-simple of block or square No. 27, in the city of Little Bock, Ark., and on the 4th day of that month executed her deed in fee thereof to Irene M. Jordan. Before the commencement of this suit the said Irene M. Jordan intermarried with the claimant, Charles M. Taylor, and since the commencement of this suit the said Irene M. Taylor has deceased, and the said Charles M. Taylor has been duly appointed as the administrator of her estate.
    II. The said block No. 27 was subject to a direct tax of $37, which was, by the board of direct-tax commissioners duly appointed for the insurrectionary district of Arkansas, assessed thereon to Matilda Johnson, and the penalty thereon amounted to the sum of $18.50.
    III. Said direct tax standing unpaid on the 4th May, A. D. 1865, said direct-tax commissioners on that day, in order to secure the payment of said tax, exposed said square to sale, and sold the same at public auction to William N. Meservey, the highest bidder at said sale, at and for the sum of $3,000. At the time of said sale the interest on said tax at 10 per cent, amounted to $11.
    
      IY. Said direct-tax commissioners, on tbe 11th May, A. D. 1865, executed and delivered to said Meservey their tax-sale certificate No. 57, to evidence the assessment of said tax on said square to said Matilda Johnson, their sale of said square to enforce payment of said tax, and the purchase of said Meservey at said sale at and for the sum of $3,000.
    Y. On the 11th May, A. D. 1865, said Meservey assigned to William O. Stoddard said direct-tax, certificate No. 57, and all his right, title, and interest thereunder in and to said square No. 27 for the price of $3,000.
    YI. On the 19th June, A. D. 1865, said William O. Stoddard assigned to Irene M. Jordan said direct-tax certificate No. 57, and aE his right, title, and interest thereunder in and to said square No. 27 for the price of $3,500.
    YII. William Walker, an agent of Matilda Johnson, on the 10th day of March, 1865, applied in writing to the direct-tax commissioners for the district of Arkansas for leave to pay the tax and penalty charged upon blocks numbered 27 and 42, in the city of Little Eock, Ark., and did offer and tender therein to them the sum of $77.70, being the amount of taxes and penalties charged upon said blocks, declaring and making it known that Matilda Johnson was seized at that writing of said lots in fee-simple absolute.
    Yin. The following communication was addressed by Ma-tEda Johnson to the direct-tax commissioners on the date given:
    
      u little Eock, Ark’s, 1st July, 1865.
    “ To the board of tax commissioners of the United States for the district of Arkansas, Little Eock, Ark’s:
    “ The undersigned, Matilda Johnson, having taken the oath of amnesty prescribed by the President of the United States, hereby applies to redeem the whole of block 27 and the whole of block 42 (west of the Quapau line), and also to redeem 6 acres of ground in Johnson’s addition (E. Q. L.), all in Little Eock, Arknasas, all of which real estate, it seems, was sold by said commissioners on the 4th day of May, 1865, in consequence of the non-payment of the taxes, interest, penalty, and costs charged thereon under the acts oi Congress of the United States of America in force on the 7th day of January, 1865, and designated in the annexed notice of that date. The act of Congress of Feb. 6, 1863, and the acts designated in the annexed notice, -having been inforce at the time the taxes, &c., were fixed on said .real estate, it is believed constituted the system governing the •collection of taxes fixed under said laws, and the right to redeem said real estate sold for taxes, &c., so fixed, it is claimed is governed solely by the laAvs aforesaid, which were in force when the taxes were fixed; and therefore, underpaid laws, to the entire exclusion of the provisions of the act of 3d March, 1865, this application is-made to redeem said real estate, upon which the commissioners had fixed the taxes, &c., on the 7th January, 1865, long before the passage of the act of 3d March, 1865, as shown by the annexed notice, to wit:
    “‘ Oeeice United States Tax Commissioners, ■
    ‘“District op Arkansas,
    
      “‘Little Boole, Arle., Jan’y 1th, 1865.
    “ ‘ Notice is hereby given that the United States direct tax levied and assessed on the State of Arkansas by an act of Congress entitled ‘An act provide increased revenue from imports, to pay interest on the public debt, and for other purposes,’ approved August 5th, A. D. 1861, and by an act entitled ‘An act for the collection of direct taxes in insurrectionary districts within the United States, and for other purposes,’ approved June 7th, 1862, has, in pursuance of the provisions of said acts, been duly assessed and apportioned on the several lots, tracts, and parcels of real estate situate and lying within the limits of the city of Little Bock and its several additions, and the undersigned are now ready to receive payment of the tax, interest, and penalty levied and apportioned thereon.
    “ ‘ HULINGS OOWPBBTHWAIT,
    “‘ENOCH H. YANCE,
    “ Commissioners
    
    
      for the Collection of the Direct Tax for Dish Arle.
    
    “ ‘ Office,'Beebee building,
    “‘Jan. 1,1865.’
    “ The whole amount of taxes, costs, interest, and charges I hereby tender to redeem said real estate, and ask that the lawful money so tendered may be received, and my said property fully redeemed from said sale.
    “MATILDA JOHNSON.
    “ Done in the presence of us, witnesses, on the date above written.
    “Amelia C. Newton.
    “M. 0. Eastman.”
    
      IX. The following affidavit was subscribed and sworn to by Matilda Johnson:
    “State oe Arkansas,
    
      “Oounty of Pulaslci, ss:
    
    “Mrs. Matilda Johnson, of the city of Little Root, in said county and State, being duly sworn according to law, deposes and says that, in August, A. D. 18C3, she was the owner of a one-story brick dwelling-house, elegantly furnished, on block « No. 27 in said city of Little Rock, which house contains seven rooms, five store-rooms, kitchen and servants’ room, besides several closets. And in addition also, unattached to the main dwelling, a one-story brick house for servants, containing two rooms, all of which, together with a brick carriage-house, and a frame stable and carriage-house, on the date aforesaid, she placed in the cafe of Judge William Walker and his wife during ■ her temporary absence from Little Rock; which said house and premises, she is informed, were taken possession of by Brig. Gen’l Davidson, U. S. Army, on the 17th day of September, A. D. 1863, and used by him as his headquarters in the city of Little Rock; and that after said house and grounds were vacated by Gen’l Davidson they were immediately taken possession of by Brig. Gen’l Carr, U. S. Army, and used and occupied by him as his headquarters; and, also, that when vacated by him, the said Gen’l Carr, the said premises were immediatfely taken possession of by Brig. Gen’l Salomon, and were by him occupied as aforesaid until Wednesday evening, July 19th, A. D. 1865; and that she is also informed that two tax-commissioners of the United States for the collection of the direct tax of the district of Arkansas, to wit, Hulongs Cowperthwait and Enoch H. Yance, published a notice as follows :
    “ ‘Oeeice U. S. Tax Commissioners,
    District oe
    “ ‘■Little Boole, Arlc’s, Jcvrfy 7th, 1865.
    “ ‘ Notice is hereby given that the United States direct to be levied and assessed on the State of Arkansas, by an act of Congress, entitled ‘An act to provide increased revenue from imports, to pay interest on the public debts, and for other purposes,’ approved August 5, A. D. 1861, and by an act entitled An act for the collection of direct taxes in insurrectionary districts within the United States, and for other purposes,’ .approved June 7th, 1862, has, in pursuance of said acts, been duly assessed and apportioned on the several lots, tracts, and parcels of real estate situate and lying within the limits of Little Rock, and its several additions, and the undersigned are now ready to receive payment of tbe tax, interest, and penalty levied and apportioned thereon.
    “ ‘ I-IULINGS COWPERTHWAIT, “‘ENOCH H. YANCE,
    “ ‘Commissioners
    
    
      for the Collection of the Direct Tax for Dist. Ark’s.
    
    “ ‘ Office, Beebe building.’ ”
    And that she is also informed that the said William Walker,, as her agent, in whose care said premises were left, and who,, with his family, had been dispossessed of her said premises by, verbal order of Gen’l Davidson, did, at the office of said tax commissioners, within less than sixty days from the date of the said notice of said tax commissioners, tender and offer to pay to the said above-named commissioners the full amount of tax, interest, and penalty levied and apportioned on said block 27,. embracing her homestead, and on all of her other real estate in ' the city of Little Rock, and that said commissioners, as she is. informed, in violation of law and by arbitrary assumption of' power, did refuse to receive from her said agent the tax, interest, and penalty levied and apportioned on her said property in Little Rock ,• and she also states that the said dwelling-house and buildings embraced on block 27 constituted her homestead since March, A. D. 1836, being more than twenty-nine years; and she also states that she is informed that the said two tax commissioners published a notice as follows, to wit:
    
      uSale of lands for unpaid U. 8. direct taxes in insurrectionary districts in the State of Arkansas.
    
    “Office U. S. Direct-Tax Commissioners,
    “Dist. of Aric’s, Little Bock, April 1st, 1865.
    “ Notice is hereby given that the several tracts or lots of land, situated in the city of Little Rock, and its several additions-thereto, in Pulaski County, in the State of Arkansas, hereafter described, have become forfeited to the United States by reason of the non-payment of the direct taxes charged thereon, under-the act entitled An act to provide increased revenue from imports, to pay interest on the public debt, and for other purposes,’ approved August 5th, 1861, and an act entitled An act for the collection of direct taxes in insurrectionary districts within the United States, and for other purposes,’ approved June 7th, 1862 j and that the same will be sold at public auction, on the 4th da.y of May, A. D. 1865, at the State-house at. Little Rock, co. of Pulaski, in the State of Arkansas.
    
      “The following is a description of said lands forfeited as aforesaid together with the amount of the said tax, and finally charged upon each of said tracts of land respectively.”
    The said lands, forfeited as stated in the notice of said commissioners, are all here omitted, except the property taxed to Mrs. Matilda Johnson, to wit: The whole of bloek 27, and the whole of block 42, and six acres in Johnson’s addition, E. Q. L.
    The quota of tax on block 27 was stated in said notice to be.$37 0(1
    And the penalty thereon... 18 50
    Making the whole amount. 55 50
    And the quota of tax on block No.- 42 . 14 80
    And the penalty thereon...' 7 40
    Making the whole amount. 22 20
    And tbe quota of tax on tbe six acres in Johnson’s addition to be.. o co rH
    And tbe penalty tbereon ..,. o ^ fc"*
    Making tbe whole amount. 22 20
    After tbe descriptions of tbe lands represented to be forfeited and to be sold, tbe commissioners added tbe following, to wit:
    “The above sale will commence on Thursday morning, May 4th, 1865, at 10 o’clock, in front of tbe west wing of tbe Statehouse (United States court-room), and be continued in tbe order of tbe advertised list of property to be sold, beginning with those under letter A.
    “Terms cash.
    “H. COWPEBTHWAITE, “ENOCH H. VANCE,
    “ U. 8. Direct-Tax Commissioners,
    “ District of Arkansas.”
    Mrs. Matilda Johnson states that she was informed that tbe said William Walker not only offered, as hereinbefore stated, to pay.the tax, interest, and penalty on her homestead and other property in Little Bock, as hereinbefore described and designated, within less than sixty days from the 7th day of January, 1865, and was not then permitted by said commissioners to pay the same, but that said William Walker also again applied to pay the tax, interest, and penalty on her said homestead and other property in Little Bock, hereinbefore designated, after the same had been advertised for sale by said commissioners and described in tlieir notice dated April 1st, 1865, which notice had hereinbefore been designated, and that the said commissioners again refused to permit the taxes, interest, and penalty to be paid on her said homestead and other property in Little Bock; but on the 4th day of May, 1865, in pursuance of their published-notice, hereinbefore stated, sold at public auction her said homestead, embraced on blocks 27, to William N. Meservey, for the sum of three thousand dollars, and sold block 42 for twelve hundred dollars to C. C.' Bliss, and sold the said six acres in Johnson’s addition, E. Q.. L., to O. C. Bliss for sixteen hundred dollars; that the two tax commissioners hereinbefore named issued in favor of the said William N. Meservey their certificate No. 57, dated the llth day of May, 1865, showing that he had, on the 4th day of May, 1865, purchased block 27, and the said William N. Meservey, on the llth day of May, 1865, duly assigned the said certificate of purchase to William O. Stoddard for the .consideration of three thousand dollars, and the said William O. Stoddard, on the 19th day of June, 1865, assigned thé said certificate of purchase to Irene M. Jordan for the consideration Of thirty-five hundred dollars; that within sixty days from the sale of her homestead and other property in Little Bock by the said tax commissioners she applied in person at their office; and tendered lawful money of the United States fully sufficient in amount to redeem her said homestead and her other property sold for taxes by said commissioners, as hereinbefoi’e designated.
    She also exhibited to the commissioners the oath of amnesty she had taken, showing that she was a loyal citizen of the United States, and that she was prepared and ready to comply with the requirements of all the laws on the subject of redemption of said property which were in force at the time the said tax was assessed and. apportioned upon the same, but that she had not up to that time been permitted by said commissioners to redeem her said homestead or any of the other of her property sold by said commissioners for taxes; that she had not had the available means to buy from the persons who held the certificates of purchase her said homestead and other property; that when she left her home in August, 1863, with her daughter, for the southwestern part of the State of Arkansas, she had not the least intention of abandoning her homestead and other property; that when she left her said homestead she left all her furniture in her house, with other personal property, and also some of her house servants on the premises, with the intention of returning in a short period to her home and occupying the same again; but that she learned that her homestead was occupied by officers of the United States Army, and therefore she did not return as early as she. would have done had they not occupied her place of residence.
    That no rent had been received by her or tendered to her, or any one in ber behalf, for the use of the said premises and furniture as aforesaid; that no voucher or receipt of any kind had been received by her, or any one in her behalf; that she had never disposed of her claim against the government for the use of said premises and furniture as aforesaid from the 17th day of September, 1863, to the 4th day of May, 1805, when her homestead was, as she verily believes, illegally and unjustly sold by said tax commissioners for taxes, and for the usé of the furniture of said homestead from the 4th day of May, 1805, to the 19th day of July, 1805, when the officers of the United States Army vacated the premises; that she considered that said premises were worth two hundred and fifty dollars monthly from the 17th day of September to the 4th day of May, 1805, and that from the 4th day of May, 1805, to the 19th day of July, 1805, she should be allowed a reasonable compensation for the use by officers of the United States Army of the furniture which belonged to her in said house and premises; that during the occupancy of the premises by the United States officers the house and furniture were damaged considerably, and •a portion of the furniture taken away and not returned; that she is a loyal citizen of the United States, and is seventy-two years of age; that she is the widow of the late Benjamin Johnson, who was district judge of the United States for the district of Arkansas from the year 1836 until he died, in the year 1850; and that she has no available means of support at present for herself and family except the amount due her for rent of the said premises.
    That in addition to the foregoing declaration and statements made under oath, although she had heretofore taken the oath of amnesty prescribed by the President of the United States, she adds below the oath prescribed in General Order, No. 48, dated Quartermaster-General’s Office, Washington, D. C., November 1,1864, to wit:
    “I, Matilda Johnson, do solemnly swear that I will support, protect, and defend the Constitution and Government of the United States, and the union of the States themselves, against all enemies, whether domestic or foreign; that I will bear true faith, allegiance, and loyalty to said Constitution and government; that I will faithfully support and abide by all acts of Congress passed and all proclamations of the President made during the existing rebellion with reference to slaves, so long and so far as not modified or held void by Congress or by decision of the Supreme Court of the United States; that I will faithfully perform all the duties which may be required of me by law;' and, further, that I do this with a full determination, pledge, and promise, without any mental reservation or evasion whatsoever. So help me God.
    “MATILDA JOHNSON.
    [R. S. 5 ots.l
    
      
      u Subscribed and sworn to before me, David B. Lamb, judge of the county and probate courts of Pulaski County, State of Arkansas, at Little Eock, Arkansas, this 28th day of July, A. D. 1865.
    “DAVID B. LAMB,
    “ Judge of the County and Probate Courts of PulasM County, Arkansas.”
    
    X. On the 23d August, A. D. 1866, the deed made by Matilda Johnson to Irene M. Jordan on the 4th March, A. D. 1863, was filed for record in the office of the recorder of deeds in and for the county of Pulaski, State of Arkansas, and was there recorded on the 26th August, A. D. 1866, in Eecord-book G-, No. 2, page 666.
    XI. On the 10th day of December, A. D, 1873, Matilda Johnson, for valuable consideration, assigned to said Irene M. Jordan, by her then name of Irene M. Taylor, all and any the right, title, interest, and claim she had in and to the surplus of the $3,000 realized fi’om said direct-tax sale remaining after deductions made on account of said direct tax, expense of said direct-tax sale, &c.
    XII. The said tax commissioners received purchase-money from different purchasers at different sales, and, after paying from the general fund such expenses as the law permitted them to pay, turned the remainder of the money over to the Treasury in bulk. The whole amount of the tax and penalty and of all the costs, charges, and commissions which should be deducted from the amount realized from said sale is $70.50, and the amount of the surplus of the proceeds of the sale after satisfying said tax, cost, charges, and commissions is $2,929.50.
    XIII. On the 15th January, A. D. 1874, the claimants, by their attorneys, made application, to the Secretary of the Treasury for the surplus of the $3,000 realized from said direct-tax sale remaining after deductions made on account of said direct tax, the expenses of said direct-tax sale, &c.
    XIV. On the 17th January, A. D. 1874, the Secretary of the Treasury rejected claimant’s said application.
    
      Mr. Ij. H. Pike for the claimant.
    
      Mr. Joseph K. MoCammon (with whom was the Assistant Attorney-General) for the defendants.
   Davis, J.,

delivered tbe opinion of tbe court:

On tbe 4tli May, 1865, tbe direct-tax commissioners of tbe United States for tbe insurrectionary district of Arkansas sold at public sale a parcel of land, with a bouse on it, in Little Rock, for non-payment of a direct tax assessed tbereon, to Mrs. Matilda Johnson, in whom tbe title of record was vested. Tbe amount of tbe tax was $37, and there was, in addition, a penalty of $18.50, making an aggregate of '$55.50 due to tbe United States. Tbe property sold for $3,000, all of which went, either directly or indirectly, into tbe Treasury of tbe United States. This suit is brought to recover tbe surplus over tax, penalty, costs, and commissions.

Tbe act of August 5, 1861, authorized a direct tax of $20,000,000 to be annually laid upon tbe United States. Of this, $261,886 was apportioned to tbe State of Arkansas. Due provisions were made for tbe assessment and collection of tbe tax within each State, and for tbe sale of real estate for nonpayment of tbe tax assessed upon it. It was also provided that “tbe surplus of the proceeds of the sale, after satisfying tbe tax, cost, charges, and commissions, should be paid to tbe owner of tbe property or bis legal representatives, or if be or they could not be found, or should refuse to receive tbe same, then such surplus should be deposited in tbe Treasury of tbe United States, to be there held for tbe use of tbe owner or bis legal representatives, until be or they should make application therefor to tbe Secretary of tbe Treasury, who, upon such application, should, by warrant on tbe Treasury, cause tbe same to the paid to tbe applicant.”

Had legislation rested here, and bad tbe tax upon tbe claimant’s land been assessed and collected under tbe jaro visions of this law alone, tbe present dispute, probably, would not have arisen. Tbe deposit of tbe surplus in tbe Treasury would have been held for tbe use of tbe owner, and on proper application therefor a warrant would have been issued for its payment.

But tbe course of tbe war made it impossible to execute this law in tbe districts occupied by tbe armed forces of tbe enemy. To remedy this, Congress, on tbe 7th of June, 1862, passed a law entitled “An act for tbe collection of direct taxes in insurrec-tionary districts within tbe United States, and for other purposes,” by which a special machinery was created for tbe collection of this tax in the insurrectionary districts, of wbicb it is needless to say Arkansas was one. Within the loyal territory the tax had been assumed by the respective States. The new law authorized the creation of tax commissioners for each State in insurrection, and empowered these officers with the necessary authority to assess and collect the tax. By the seventh section of the act they were authorized to sell real estate for non-payment of the taxes assessed upon it. Some amendments were made to this section by the act of February 6,1863; and it was under the act as amended that the sale in this case took place. As the amendments did not affect the disposition of a possible surplus, they are immaterial in the view we take of the case. It is not disputed that all things necessary to give validity to the sale itself were done.

The claimant maintains that the act' of 1862 and its amendments made no provision for the payment of the proceeds of the sale into the Treasury; and he argues that, inasmuch as it could not be contemplated that the tax commissioners should retain the proceeds to their own use, the mandatory provisions of the act of 1861, which we have cited, must have continued in force.

He fortifies this argument, in the first place, by appealing to the opinion of the Supreme Court in Bennett v. Hunter (9 Wall., 326), wherein it is said that “ The acts of 1861 and 1862 are to be construed together. The general object of both was the same, namely, the raising of revenue by a tax on land. The first prescribed a mode of collection where the authority of the general government was ackowledged and no serious obstacle existed to the execution of the law; the second directed the mode of collection where this authority had been overthrown by insurrection but had been sufficiently re-established to make collection, to some extent at least, practicable. * * * The primary purpose of the act was undoubtedly revenue, to be raised by collection of taxes on lands.” From this the claimant argues that there could be no revenue from the tax if the proceeds of sales to enforce it were not paid into the Treasury; and he says that we must go to the act of 1861 to find a provision requiring the proceeds to be deposited there.

In the second place, he contends that a tax law which authorizes a sale of the property for non-payment of the tax, and the receipt by the government of the whole value resulting from the sale, without liability to account to the owner for any surplus wbicb may remain after payment of the tax and the legal penalty for non-payment and the costs of collection, is virtually a forfeiture of the property itself. He argues that Congress could not have intended this inequitable result; and, since the Supreme Court has already decided that the two statutes are to be construed together as a revenue law, he. further contends that we must look to the act of 1861 not only to find how the proceeds of the sale are to reach the Treasury, but also what is to be done with the surplus when it gets there.

The defendants’ counsel answered this by showing that the statute gave the owner of property sold for non-payment of taxes a right of redemption which, though it might be brief and onerous, precluded the idea of forfeiture or confiscation. He also referred to the twelfth section of the act of June 7, 1862, which provides that the proceeds of leases and sales shall be paid into the Treasury of the United States, and that one-fourth of them are to be subsequently paid over to the governor of the State wherein the lands are situated, or his authorized agent, when the insurrection should be put down and the people should elect a legislature and State officers who should take an oath to support the Constitution. He argued from this that the law has made a complete disposition of the surplus which is entirely inconsistent with the theory of the claimant’s case.

The claimant replied that the ninth section of the act of 1862 authorized the United States to take possession of and lease all lands whose owners should have abandoned them and gone to aid the rebellion, provided the same should be sold for non-payment of taxes and bid in by the United States; and that the eleventh section of the act made provisions, at the pleasure of the President, for the sale of such lands instead of a lease of the same. He contended that the provisions of the twelfth section, on which the defendants’ counsel relied, referred only to the leases which were authorized by the ninth section and the sales which were authorized by. the eleventh section, and had no ref-erance to general sales for non-payment of taxes made under the provisions of the amended seyenth section.

In this brief summary of the positions taken on each side, in the interesting discussion of this question, we have necessarily omitted many of the illustrations from the statutes with which counsel fortified their respective contentions. We have carefully considered the subject, and are with the claimant on this point. The Supreme Court bas settled for us in advance that tbe statutes of 1861 and of 1862 are to be construed together as a revenue law. It follows that tbe provisions of tbe act of 1861 wbicb are applicable to tbe subjects affected by tbe law of 1862, and wbicb are not replaced by corresponding provisions in that law, remained in force after tbe passage of tbe law of 1862, and were applicable to tbe property subjected to tbe law of 1862 as well as to tbe property wbicb remained exclusively subject to tbe law of 1861.

This view, if correct, leaves us to determine only whether tbe twelfth section of tbe act of 1862 relates to tbe proceeds of all tax sales, or only to tbe proceeds of sale of lands abandoned by owners who bad gone to aid tbe rebellion, and wbicb are sold for .taxes and bid in by tbe United States.

Tbe seventh and eighth sections of that act terminate tbe consideration of tbe subject of tbe assessment and collection of taxes, of tbe sale of property for the non-payment of taxes, and of tbe rights of redemption of tbe same so-far as they are treated in tbe statute. Tbe ninth section proceeds to tbe treatment of quite another subject — tbe “other purposes” named in tbe title of tbe act — and the- ninth, tenth, and eleventh sections are exclusively occupied with provisions respecting tbe leases and sales of property of wbicb tbe United States may become proprietor or possessor under operation of a tax sale. When, therefore, tbe twelfth section, in immediate context with these sections, speaks of “ tbe proceeds of said leases and sales,” tbe natural grammatical inference is that it refers to the leases and sales authorized by tbe sections immediately preceding. It would be a strained construction to apply this language to sales authorized by tbe seventh section, wbicb could be justified only on tbe supposition that no other provision could be found for passing that money into tbe Treasury. In view of tbe fact that tbe forced construction insisted on by tbe defendants works out an inequitable forfeiture of tbe entire property for non-payment of a tax which forms but .a small- part of its value, while tbe logical result of tbe opinion in tbe 9th Wallace works out substantial justice, we have no- hesitation in bolding that tbe disposition of tbe proceeds of tbe sale of tbe claimant’s property is governed by the provisions of tbe act of 1861.

Tbe defendants further contend, however, that even if tbe claimant’s rights are to be measured by tbe statute of 1861, be bas no standing in court, first, because tlie statute gives Mm no remedy here; and, second, because his remedy, if he has one, is barred by the statute of limitations. We will briefly examine these two inconsistent propositions.

In Knote's Case (95 U. S., 156) the Supreme Court says that the j urisdiction of this court is limited to claims founded upon a law of Congress, or upon a regulation of an Executive Department, or upon a contract, express or implied, with the government. The claim here presented [that is, in Khote’s Case] rests upon a supposed implied contract to pay to the claimant the money received as the proceeds of the forfeited property. To constitute such a contract there must have been some consideration moving to the United States, or they must have received sary corollary from this that, when the United States do receive money charged with a statutory duty, as in this case, to pay it over, an implied contract exists to pay the money over in the the money charged with the duty to pay it over.” It is a necessary corollary from this that, when the United States do receive money charged with a statutory duty, as in this case, to pay it over, an implied contract exists to pay the money over in the manner provided by tbe statute.

The next question is a more difficult one. The statute of 1861, as we have seen, provides that the surplus shall be held in the Treasury until the owner or his legal representative makes application for it, when it shall be paid to him. If the statute implies a contract to pay to the owner at once upon the deposit of the money, so that he can maintain an action for it without previous demand upon the Secretary of the Treasury, this suit is clearly brought too late. If, on the contrary, he cannot come here before the Secretary of the Treasury has heard Mm and decided against him, then his cause of action accrued on the refusal of the Secretary of the Treasury, and his suit is not barred by the statute. Though the question is not free from doubt, we take the latter view, and hold that the suit is not barred by the statute of limitations. We are the more ready to do this that the amount involved is less than $3,000.

But one more question remains on the merits. The defendants maintain that, admitting the claimant’s good status in court, and that the statute of 1861 is the law governing his case, the facts show no title in him to the alleged surplus. Mrs. Matilda Johnson, from whom the claimant’s title is derived, was tlie widow of a former judge of tiie United States for tbe district of Arkansas, and there is nothing to lead us to question her title to the property at the time when she conveyed it to her daughter, Mrs. Jordan. We have no doubt of the delivery of the deed to the daughter, nor that it was properly put on record. All these circumstances operated as a. transfer of the propeiiy. This transfer is fortified by a subsequent conveyance from Mrs. Johnson of the right to receive the surplus from the tax sale. By the subsequent intermarriage of Mrs. Jordan with Mr. Taylor, her death, and his administration upon her property, his title is complete.

It follows from this that the court is of opinion that claimant is entitled to recover. Judgment will be entered in his favor for $2,929.50.  