
    WILLIAM A. CROMWELL v. THE UNITED STATES.
    [No. 15214.
    Decided May 14, 1888.]
    
      On the Proofs.
    
    This is a claim to recover a surplus growing out of a sale for taxes of a lot in the city of Memphis. It appears that an action was brought by the claimant to recover the land, and that the land was sold by him while the action was pending.
    I.A surplus under the Direct-Tax acts, 1861,1862, is a chose in action, and must be regarded as personal property, though derived from a forced sale of realty.
    II.The fact that the owner sold the land upon which a tax was assessed, after the tax sale, will not deprive him of the right to maintain a suit for the surplus. The surplus did not pass by the conveyance as incident to the land.
    III.Nothing which has matured into a complete right passes with a grant of land.
    
      The Reporters' statement of tbe- case:
    The following are the facts as found by the court :
    I. The claimant, in June, 1864, was owner in fee-simple of lot No. 16, in block or square numbered 14, in the city of Memphis, Tenn., which lot was subject to a direct tax of $10.50, which was by the board of direct-tax commissioners, duly appointed under the act of June 7, 1862, for the State of Tennessee, assessed thereon to William A. Cromwell; and the penalty thereon, including interest and charges, amounted to $8.10, making a total due the United States of $18.64.
    II. Said tax standing unpaid, said direct-tax commissioners, on the 18th day of June,1864, in order to secure the payment of said tax, sold the said lot 16, in block 14, to James Boynton, for the sum of $360.
    III. Said direct-tax commissioners, on the 18th day of June, 1864, executed and delivered to said Boynton their tax-sale certificate No. 478, to evidence the assessment of said tax on said property, their sale of said lot to enforce payment of said tax, and the purchase of said Boynton at said sale, at and for the sum of $360.
    IY. That said tax-sale certificate No. 478 was regularly assigned by Boynton and re-assigned by assignees, successively, until tlie land described therein vested in J. B. Wetherill, who took possession of it January 12,1866.
    V. William A. Cromwell, on the 15th of February, 1866, brought an action for the recovery of the land against said J. B. Wetherill, in a State court at Memphis, Tenn., which, on petition of Wetherill, was removed into the United States Circuit Court for Western Tennessee.
    Cromwell, whose suit was still pending against Wetherill, on February 11, 1873, for and in consideration of $3,500, made a warranty deed to William G-. Wilkins for the land in question.
    VI. J. B. Wetherill and wife, on July 22,1873, conveyed to Wilkins whatever title they had to the land in question for and in consideration of the sum of $554.75, whereupon suit was discontinued by Cromwell against Wetherill in said United States Circuit Court.
    VII. 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 of the United States. The whole amonnt 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 $18.64, and the amount of the surplus of the proceeds of the sale, after satisfying said tax, costs, charges, and commissions, is $341.36, which was paid into the Treasury.
    VIII. On the 19th of April, 1884, W. Gr. Wilkins re-assigned to claimant any right, real or supposed, he had in and to the surplus proceeds in this case.
    IX. The claimant made application to the Secretary of the Treasury for the surplus as above, which application was rejected March 25, 1884.
    
      Mr. Charles W. Dorsey for the claimant.
    The right to this surplus is a personal one, vested in Cromwell in this case by virtue of his ownership of the property at the time the sale took place, and can not be divested without an express transfer or assignment to that effect. (King v. St. Pat-ricias Cathedral, 50 N. Y. Superior Court, 406.)
    In United States v. Taylor (14th Otto, 216) the claimant of the surplus was such by express assignment.
    
      
      Mr. Heber J. May (with whom was Mr. Assistant Attorney-General Howard) for the defendants.
    It is shown by the record that Wilkins assigned this claim to Cromwell for value received. It is only necessary to suggest that such assignment is ineffective by reason of the statute. If Cromwell, recovers it must be upon a personal right vested in him by virtue of having been the owner of the land at the time it was sold for direct taxes, and his title must be clearly and unquestionably proven.
    The claimant must establish his title in one of two ways: By showing that he was in actual, undisturbed possession, under color of title, at the time of sale; or, where this can not be done, he must show either a complete title, or that the property was assessed to him or to those under whom he held, and that he or they paid the taxes thereon for a period covered by the State statute of limitations. {Wilson's Case, 21 C. Cls. B.., 135.)
    Hone of these requirements have been established by competent proof. In fact, no proof whatever has been adduced upon either of these material points.
   Weldon, J.,

delivered the opinion of the court:

This is a proceeding to recover a surplus growing out of a sale for taxes under the act of August 5,1861, entitled “An act to provide increased revenue from imports to pay interest on the public debt, and for other purposes,” and the act of July 7, 1862, entitled “An act for the collection of direct taxes in insurrectionary districts within the United States,” and the act of February 6, 1863, entitled “An act to amend an act entitled 1 an act for the collection of direct taxes in insurrectionary districts within the United States, and for other purposes.’” The claim is for the surplus of the sale of a lot in the city of Memphis, Tenn., which belonged to the petitioner, as shown in Finding I.

The property sold for $360. The amount of tax charged against it was $10.50, the amount of penalty $5.25, amount of interest 39 cents, amount of cost charged $2.50, leaving a balance of $341.30; and for the recovery of that amount this proceeding was instituted.

The findings show that the property was sold to James Boyn-ton for said sum of $360; that a tax-sale certificate, No. 478, was issued to the purchaser in June, 186b; that said certificate-was assigned by Boynton, and re-assigned to J. B. Wetherill,. who took possession of the property ton January 12, 1866.

The claimant, on the 15th of February, 1866, brought an action against Wetherill for the recovery of land, which upon the petition of Wetherill was removed to the circuit court of the-United States for that district. While said suit was pending, to wit, on the 11th of February, 1873, the claimant by warranty deed conveyed the premises to William G. Wilkins, and on the 22d of February, 1873, the said Wetherill, in consideration of the sum of $554.75, conveyed all his title to the property in question ; whereupon the suit of Cromwell v. Wetherill in the-United States court was discontinued. On May 25,1884, the claimant made application to the Secretary of the Treasury for the said sum of $341.36, and payment was refused. The question of law arising on the facts of the record have been fully considered not only by this court but also by the Supreme Court. In the case of Irene Taylor’s Administrator v. The United States (14 C. Cls. R., 339), the right of the claimant to recover in a case like the one at bar was recognized by the judgment of the court, and on appeal to the Supreme Court the right was affirmed.

The Supreme Court in the decision of the Taylor Case (United States v. Taylor, 104 U. S. R., 221) said: The thirty-sixth section of the act of 1861 required, as we have seen, the surplus proceeds of the sale of land for taxes to be deposited in the Treasury, to be there held for the use of the owner, or his legal representatives, until he or they should make application therefor-to the Séeretary of the Treasury, who, upon such application, should by warrant on the Treasury cause the same to be paid to the applicant.”

This court has held that the surplus is a chose in action, and must be regarded as personal property, though derived from an enforced sale of realty. (Chaplin v. The United States, 19 C. Cls. R., 424; Chisholm v. The United States, 19 id., 435; Graham, Administratrix, v. The United States, 21 id., 47.)

The fact that the claimant sold the land upon which the tax was assessed, after the sale by the commissioners, because of the delinquency in the payment of the tax, will not deprive him of the right to maintain a suit for the surplus. The surplus did not pass to Wilkins by the conveyance to him from Cromwell, because it was not an incident to the land at the time;. and the fact that Cromwell would be liable to his grantee for a failure of title would not make the right to the surplus an incident to the estate. It was not a rent due and payable after the grant, but a complete and perfect right, maturing in the form of a chose in action, before the grant was made. Nothing passes with the land, which has, at the time of the grant, matured into- a complete right, and does not arise thereafter out of the land. The sale of the reversion of the landlord carries the future rent, but not the rent due at the time of the sale, because as to that the right of the grantor is distinct from the thing granted. (Walker’s American Law, 315.) If the right to the surplus was susceptible of being assigned and passed by the deed to Wilkins, then it was reconveyed to the claimant by the assignment of Wilkins about the time the. deed was executed. The fact that the claimant sought to defeat the title given to the assignee of Boynton will not affect his claim to a recovery in this case. The findings show that. his assignee paid the sum of $554.75 to relieve the estate from the incumbrance cast upon it by the proceedings of the United States commissioners, and he being liable on his covenants of warranty, it is safe to assume that the claimant paid that sum in order to relieve himself, upon his covenants of title. The-grantee of the United States took possession of the land as. against the claimant, and then voluntarily sold his title to the, grantee of the claimant, at a considerable advance on his original investment.

It is not within the power of the United States to deny the-legality of the sale and the validity of the title. The claimant • lost possession of his land, had the character of his title im-paired by the proceedings, and his grantee was compelled to' buy an outstanding claim in order to recover possession of the! premises and perfect the estate as a fee in himself. The United! States were only entitled to their tax, interest, and cost, and beyond that they became and were a trustee holding the surplus subject to the rights of the claimant. The Government as a trustee can not question the title of the cestui que trust upon the ground that he sought to resist the validity of the proceedings. The title was effective against claimant, first in dispossessing him of the possession of the land, and secondly, in compelling his grantee to purchase the title from the grantee of the Government. Judgment for $341.36.  