
    HENSON JACKSON ET AL. v. THE UNITED STATES. IRVING TINNEY v. THE SAME.
    [No. 16791.
    Decided December 14, 1891.]
    
      On the defendants7 Demurrer.
    
    Congress appropriate money for the purchase of the naval artillery proving ground. The proper officers purchase a farm and take a deed to the United States; the Government enters under that deed. Third persons, the present claimants, bring suit alleging that the land belonged to them,-that the price paid was “ grossly inadequate;” that the grantor under whom the Government entered was in fact their mortgagee and made the sale in fraud of their rights; that the officers of the Government had actual notice, and that the claimants were in actual possession. The defendants’ entry is alleged to have been by right of eminent domain, and the claimants sue to recover the value of the property.
    I. Where the facts set up in the petition show that a taking of real property was not by right of eminent domain, an allegation that it was will not be regarded as a fact confessed by demurrer.
    II. When the ofiicors of the Government purchase land from one having an interest therein, legal or equitable, and do not attempt to obtain it by condemnation, the right of eminent domain is not exercised.
    
      III. Unless the title of a claimant to land taken hy the Government was admitted, no promise can he implied upon which an action will lie to recover its value.
    IV. The court has not jurisdiction of a suit in equity to set aside a sale of lancl made hy a third party on the ground that it was in fraud of the rights of the present claimants.
    
      The Reporter’s statement- of tbe case:
    Tbe following are tbe allegations in extenso óf tbe claimants’ petition to wbicb tbe defendants demurred:
    Tbe claimants, Henson Jackson and Sarah B. Jackson, bis wife, and. Irving Tinney, an infant suing by bis nncle and next friend, Henson Jackson, respectfully represent:
    On or about tbe 11th day of October, in tbe year 1881, one Thomas Fisher and Ann Fisher, bis wife, being indebted to one Francis Sbanabrook in tbe sum of $535, and desirous of securing tbe payment of tbe same, conveyed to said Shanabrook, by deed of mortgage, to secure payment of tbe same, tbe land therein described, containing about 473 acres, lying and being in Charles County, in tbe State of Maryland, and being tbe same land which said Sbanabrook bad theretofore conveyed to said Thomas Fisher and Ann Fisher by deed in fee simple, with warranty of title, on or about tbe 8th day of October, in tbe year 1881.
    Subsequent to tbe execution of tbe said deed of mortgage by said Thomas Fisher .and Ann Fisher as aforesaid, said Ann Fisher died, leaving her husband, said Thomas Fisher, surviving her, and entitled by such survivorship to tbe whole estate; soon after wbicb said Tlioma's Fisher, having first paid a part of tbe debt secured by said deed of mortgage, also died, leaving a last will and testament, wbicb was duly probated in the orphans’ court for the' county aforesaid, by wbicb be devised to bis daughter, Sarah B. Fisher, and bis grandson, Irving Tin-ney, all Ids right, title, and interest in and to tbe land described in tbe mortgage aforesaid.
    After tbe death of said Thomas Fisher and Ann Fisher tbe said Sarah B. Fisher intermarried with one Henson Jackson, and, together with her husband and said Irving Tinney, are tbe claimants in this case.
    Afterwards, to wit, in tbe month of April, 1888, said Francis Sbanabrook, under the terms of tbe said mortgage, did advertise tbe said land for sale to pay himself tbe balance of tbe money due on tbe debt so secured by tbe same; and on tbe day of tbe sale as so advertised tbe claimants, with their counsel, appeared at Port Tobacco, tbe county seat of said Charles County, Maryland, and tbe place where said sale was advertised to take place, and before tbe land was offered for sale, and before any bid was put on tlie same, forbade tbe sale of tlie same, notwithstanding which said Shanabrook offered it for sale, and bid it off himself for the sum of $425, and had the same put down to one Sarah B. Boyle, who was not present either in person or by attorney, and did not in fact authorize the said bid, nor then, nor at any time thereafter, deposited or paid a single dollar on the same. After the aforesaid sale these claimants, finding themselves unable to contest the matter with said Shanabrook, and being unable to pay the balance due on said mortgage debt, by the advice of their counsel, on the 3d day of May, 1888, after the said sale, sought the aid of .one Benjamin Cooley, who had money, and who readily agreed to aid them in the matter on the following terms:
    The claimants agreed to convey to said Cooley all their interest in the land aforesaid by deed of quitclaim, absolutely in form, but intended to operate only as a mortgage for the security of said Cooley, in order to give said Cooley a status in court and the legal right to pay said Shanabrook the debt due him; and at the same time and place of the execution of said mortgage in the form of a deed of quitclaim, to wit, on the 3d day of May, in the year 1888, at the city of Washington, District of Columbia, the said Benjamin Cooley entered into the following agreement in wilting with the claimants:
    ‘‘Whereas Henson Jackson, and Sarah, his wife, have this 3d day of May, 1888, conveyed to Benjamin Cooley, and duly executed, all their right, title, and interest to a tract of land lying and being in Charles County, State of Maryland, and fully described in said deed, and have agreed further to and with said Cooley that the title to the said tract of land now held by one Francis Shanabrook, as mortgagee, executed by Thomas Fisher to said Shanabrook to secure a certain sum of money therein set forth and duly recorded at Port Tobacco, shall be made to said Cooley upon payment by him of the amount due thereon to reassure and complete his title to the land aforesaid.
    “In consideration of these premises, the said Benjamin Cooley agrees to pay said mortgage debt when legally requested to do so, and when so advised by counsel retained in this case; and said Cooley further agrees to and with said Jackson and-his said wife to aid and assist them, they being unable to do so, in instituting and prosecuting saia suit as they may be advised by their said counsel to be proper and right against said Shanabrook; and for the moneys so advanced by said Cooley and paid out, and all the expenses and trouble he may be at touching the same, the land shall be liable to him and be security in his hands to reimburse him fully, and he may sell and convey the land when he may be so advised in writing by the said counsel, and after paying himself, shall take to himself one-fourth of the proceeds resulting from the same, and the other three-fourths shall be equally divided between Jackson and his wife and the said counsel according to their agreement; and if at any time said counsel, so retained by said Jackson and his wife, shall find a purchaser for the said land, the said Benjamin Cooley shall execute a deed therefor, and the proceeds of said sale shall be divided in pursuance of this agreement.”
    Said deed of mortgage in the form of a quitclaim deed, and the agreement hereinbefore recited, were made and executed at one and the same time in the office of and before one Samuel C. Mills, a notary public in the city of Washington, District of Columbia, and both papers contemporaneously witnessed by him.
    Afterwards said Benjamin Cooley, by and with the advice of the counsel of said claimants, as provided in the agreement hereinbefore recited, entered his protest in the circuit court of Charles County, Maryland, on record, and filed his exceptions against the confirmation of the sale of said land to said Sarah E. Boyle under the Shanabrook mortgage, in order to prevent said Sarah E. Boyle, or said Shanabrook through her, from acquiring title to the said land under the sale aforesaid, and to compel them, under the order of the court, to make the title to him, the said Cooley, upon the payment of the debt due said Shanabrook for the uses and purposes of the x>arties to the agreement hereinbefore set forth. The said cause, so instituted as aforesaid in the circuit court aforesaid, was continued from time to time without final decree until about the 19th day of October, in the year 1889, when the said Shana-brook, on behalf of himself and as attorney in fact of Mrs. Sarah E. Boyle, met with said Benjamin Cooley at Port Tobacco, the county seat of said Charles County, and it was then and there agreed between them that said Benjamin. Cooley should pay to said Francis Shanabrook the amount of indebtedness, claimed by him to be a total of principal, interest, and costs due on his mortgage deed aforesaid of the sum of $720; ' that thereupon the sale of the land to said Sarah E. Boyle should be ratified by the court, and that he and said Sarah E. Boyle should join in a deed and convey to said Benjamin Cooley the said land.
    Whereupon, on said 19th day of October, 1889,. upon the payment by said Cooley of said amount of $720, an order of court was entered confirming the said sale, and a deed in fee simple for the said land was executed by said Boyle and said Shanabrook to said Benjamin Cooley.
    A few months after the said Cooley had thus acquired title to the said land in the manner aforesaid, by virtue of the deeds aforesaid, and subject to the agreement hereinbefore recited, whereby said conveyances were to operate only in the nature of a mortgage, a Mrs. Kate U. Taylor, of Alexandria, in the State of Virginia, owning 180 acres of land lying on the Potomac Fiver, in said Charles County, and immediately adjoining the land hereinbefore described, began to make arrangements to sell to the United States, acting through Commander William M. Folger, then, and ever since, Chief of the Bureau of Ordnance,. in the Department of the Navy, the said 186 acres of land for the use of the Department of the Navy as an ordnance proving ground.
    The fact of such negotiations getting to the ears of the claimants and their counsel, they immediately sought the said Cooley at his place of business, and communicated the fact to him, and expressed the opinion,, upon the information they had received, that the situation of the land and the requirements of the United States for its said proving ground were such that the United States would be compelled to have the land that he, the said Cooley, had thus acquired by way of mortgage, or in trust as aforesaid, and that at least $6,000 could easily be obtained for it, and that it would be well to see the agents of the Government about it; to which said Cooley then and there replied that as they were all interested in the matter, he thought it would be better to wait and let the Government seek them.
    The claimants, however, aver and charge that the said Benjamin Cooley, intending to deceive these claimants, immediately thereafter sought the agent of the Government, said Commander William M. Folger, and entered into negotiations with him for the sale of said land to the United States of America for the use of the Department of the Navy as a part of its ordnance proving ground, which fact coming to the knowledge of the claimants, they immediately took steps to prevent the sale of said land withoiit the written consent of the counsel aforesaid, as had been stipulated in the agreement hereinbefore recited, and sought the agent of theUnited States, towit, Commander William M. Folger, at his office in the Department of the Navy, in the city of Washington, and had an interview .with him, wherein they displayed a copy of their said agreement with the said Cooley, and read the same to said Folger, and called his special attention to the terms of said agreement, whereby said Cooley could not sell or give a good title to said land without the express consent in writing of the claimants’ counsel to the sale, which agreement said Folger then and there read in the presence of witnesses, and the claimants then and there warned him against making such purchase without the written consent thereto of the counsel aforesaid; telling him, at the same time, that the agreement aforesaid was duly recorded among the land records of said Charles County, Maryland; that the land would not be sold for less than $6,000, and that the standing timber alone on the land was worth rally $3,000. Said land, the claimants aver, is worth fnlly as much as that of said Kate U. Taylor, for wbicb the United States paid $0,500, or at the rate of $34.95 an acre; which fact the officers and agents of the United States well knew at the time they were in negotiations with said Cooley for the purchase of the same and at the time they did purchase the same.
    Yet, notwithstanding the notice aforesaid, at the interview aforesaid, the said Cooley conveyed the said land to the United States by deed dated the 14th day of May, in the year 1890, for the ridiculously inadequate price of $2,500, and the same was then andtherepaidtohimby the United States, out of the api>ro-priations for that purpose made by Congress, in fraud of these claimants, and in violation of their rights and of their interest in the land; and the United States immediately thereafter, through its proper officers of the Navy, and under the authority and direction of the Secretary of the Navy, and in virtue of its power of eminent domain,. entered into posses- ■ sion of the land aforesaid, and every part thereof, and still hold and occupy the same.
    The purchase or condemnation of said land was authorized by act of Congress providing and appropriating for the purchase or condemnation of lands for such a naval ordnance proving ground, and the appropriations made for the same are ample for the payment of the full price of the laud as herein claimed.
    Said sale was made after the interview with said Folger, and after the notice aforesaid, and without the consent, written or otherwise, of the said counsel, all of which facts the officers and agents of the United States acting in the matter well knew.
    At the time said land was so taken possession of by the United States the claimants were in actual possession thereof by a tenant, which fact constituted an additional direct notice to the officers of the United States of the title of these claimants.
    And the claimants aver and claim that the deed from the claimants conveying their equity of redemption and interest in said land to Cooley, and the agreement between the said Cooley and the claimants, hereinbefore recited, were made at one and the same instant of time, and are to be construed and taken together as one paper, the one embodied,in the other, and the whole constituting upon its face, not an absolute sale to Cooley, but a mere mortgage or conveyance in trust to said Cooley for the purpose of securing him for the repayment of his advances to said Shanabrook in payment of the mortgage debt; and that the restriction upon said Cooley in said agreement not to sell the said land without the written consent of the counsel aforesaid was obligatory and binding upon all persons having notice of the same.
    And the claimants further show that, in order more effectually to give notice to the public, they, questioning said Cooley’s good faith in the transaction, had caused the said agreement between Cooley and them, long before he had conveyed the land to the United States of America as aforesaid, to be duly recorded in the land records of said Charles County, so as to prevent said Cooley from selling said land without the written consent of their counsel as therein provided.'
    And they also, in order to protect themselves from fraud on the part of said Cooley, had served a copy of said agreement on him at his place of business long before the sale as aforesaid by him to the United States.
    And the claimants now claim, hereby not waiving, but expressly reserving their right to proceed against said Cooley, that they are now entitled to recover in this action from the United States the full value of said land, computed at the same rate as that of Mrs. Kate U. Taylor, as aforesaid, to wit, $34.95 an acre, which is the sum of $16,531.35, less the sum of $720 claimed to be the amount due said Cooley as aforesaid, leaving a balance of $15,811.35, which amount they claim.
    On payment of said amount of $15,811.35, or such amount as this court shall find to be the true and just value of said land, less the amount to which said Cooley was justly entitled under the sale aforesaid, and not otherwise, the claimants are willing to confirm the taking of said land by the United States.
    No other action than as aforesaid has been had on this claim in Congress or by any of the Departments.
    The claimants are the sole owners of this claim, and the only persons interested therein; and no assignment or transfer of this claim, or of any part thereof or interest therein, has been made.
    The claimants are justly entitled to the amount herein claimed from the United States, after allowing all just credits and offsets. The claimants are citizens of the United States, and have at all times borne true allegiance to the Government thereof, and have not in any way voluntarily aided, abetted, or given encouragement to rebellion against the said Government; and the claimants believe the facts as stated in this petition to be true. And the claimants claim $15,811.35 besides costs.
    
      Mr. Assistmt Attorney-General Cotton in support of the demurer. „
    
      Mr. George A. King opposed:
    1. The court has jurisdiction of an action against the United States to recover the reasonable value of the land of the claimants taken for public use, both by Revised Statutes, § 1059, and still more clearly by the Act of March 3, 1887 (§ 1, par. 1, Supp. to Rev. Stat., p. 559).
    
      It will hardly be seriously maintained that the occupation of land by the direct authority of Congress on the one hand, and with the consent of the claimants on the other, constitutes a trespass on the part of the individual officer. The only reasonable conclusion is that the property has been lawfully taken for public use, from which immediately flows the necessary corollary of that proposition that the public must make just compensation to the owners. (Mitchell v. Harmony, 13 How., 115; Searl v. School District No. 2,133 U. S., 553; Bus-sell v. United, States, 7 C. Cls., 227; Mills v. United States, 19 C. Cls., 79; Dunnington v. United States, 24 0. Cls., 404; Fdmonia Semmes et al. v. United States, No. 16600.)
    Of an action to recover compensation in such a case the court has jurisdiction under the act of March 3,1887, even if it had not before. (George A. Stovall, administrator, v. The United States, Cong. Case No. 1378, pp. 9,10, of Opinion.) By the act of March 3, 1887, the jurisdiction of this court has been “ so extended as to include claims for money arising out of equitable and maritime as well as legal demands.” (United States v. Jones, 131 U. S., 1,18.)
    2. By the act of August 1,1888, Supp. to Bev. Stat., p. 601 (see note thereto), all officers of the Government authorized to procure real estate were given authority to acquire it, whenever necessary, by condemnation under judicial process. Had such a proceeding been instituted, as it unquestionably should have been the moment it appeared that there was the slightest controversy about the title, there can be no question that the court would have awarded the value of this land to the present claimants subject to Cooley’s claims as mortgagee. Now it has been decided that the legal obligation of the United States to pay for land taken pursuant to an act of Congress is quite as strong without, as with, formal proceedings for condemnation. (United States v. Great Falls Manufacturing Go., 112 U. S., 645, 658, affirming Great Falls Manufacturing Company v. United States, 16 O. Cls. R., 160.)
    The same thing is true where formal proceedings have been taken for condemnation, and the value by mistake paid to the wrong party. (Dimnington v. United States, 24 C. Cls. R., 404.)
    There is certainly every advantage to the Government, as well as to the claimants, in having all questions as to the title of the claimants and the value of the property settled in this proceeding rather than in a personal action against the officer in possession, in which a judgment for the present claimants would result in the ouster of the Government from this property, upon which it has made most valuable improvements. The claimants would thus be enabled to set their own valuation upon the property and to turn the Government out of possession if not paid.
   [Richardson, Ch. J.,

delivered the opinion of the court.

The defendants have filed a general demurrer to the petition above set out in full, and we must look to the latter for all the facts in the case.

It is not easy to determine whether the suit is in law or in equity. If it be an action at law, then it is founded on an implied promise springing from that profusion of the Constitution which declares that “private property shall not be taken for public use without just compensation.” Of such an action the court now has jurisdiction on the voluntary petition of the claimant, under the act of March 3,1887, Chap. 359 (1 Supplement to R. S., 2d ed., p. 559), as it had previously in cases transmitted by the heads of Departments under Revised Statutes, section 10G3.

The facts set out in the petition negative any taking by right of eminent domain, although there is an incidental allegation that “ the United States, in virtue of its power of eminent domain, entered into possession of the land aforesaid and every part thereof, and still hold and occupy the same.” This allegation is qualified and explained by other facts presented in detail.

Congress made the following appropriation:

“For purchase of land for proving and ranging ground for naval guns, and for constructing buildings, butts, shelters, and batteries, forty thousand dollars.” (Act of 1887, March 3, 24 Stat., 582.)

Duly authorized officers of the Government therefore proceeded to purchase the land in question of one Benjamin Cooley “ for the ridiculously inadequate price of $2,500,” as alleged, and took a deed to the United States under which they entered into possession, and the same is now held by defendants claiming title by purchase.

In Langford’s Case (101 U. S., 341) tbe Supreme Court beld tbat where tbe United States, by their officers, take possession of real estate under claim of title tbe Government is not liable to tbe real owner for use and occupation. Tbe question was left open and undecided whether or not this court has jurisdic- • tion of claims for tbe value of real estate taken by right of eminent domain even where “tbe Government admits tbe title of tbe individual and bis right to compensation.” Tbe case clearly intimates, however, tbat unless tbe title of tbe claimant is admitted no promise can be implied upon which an action will lie in this court.

Here tbe defendants’ officers evidently supposed they were dealing with an owner who bad a right to convey tbe land and acquired a perfect title. They did not intend to enter upon tbe estate by right of eminent domain even if they bad a right to do so under tbe act which made an appropriation only for the purchase of land. Perhaps under tbe broad language of tbe condemnation act of 1888, August 1, chapter 728 (1 Supplement to Rev. Stat., 2d ed., p. 601), tbe defendants might have acquired title by condemnation; but they did not do so and never attempted it.

No absolute necessity is disclosed that this particular land should be taken for tbe purpose designated in tbe act, and bad the officers not been able to purchase at a low price they might have proceeded to tbe condemnation or purchase of some other land.

In order to sustain this action as a suit at law we should have to bold the deed from Cooley to be absolutely void, tbat tbe defendants took no title whatever under it, and tbat they bold tbe property on an implied assumpsit to pay the legal owner its full value. This would be contrary to tbe facts alleged. Whether Cooley beld title as mortgagee or as trustee, be bad a certain interest in tbe land. Tbat interest is declared in bis agreement with tbe Jacksons, tbe equitable owners. After reciting tbat Cooley was to pay a certain mortgaged debt thereon, etc., tbe instrument provides tbat—

“ For moneys so advanced by said Cooley and paid out, and all tbe expenses and trouble be may be at touching tbe same, tbe land shall be liable to him and be security in his bands to reimburse him fully, and be may sell and convey tbe land when be may be so advised in writing by tbe said counsel, and, after paying himself, shall take to himself one-fourtli of the proceeds resulting from the same, and the other three-fourths shall be equally divided between Jackson and his wife and the said counsel according to their agreement.
“And if at any time said counsel, so retained by said Jackson and his wife, shall find a purchaser for the said land, the said Benjamin Cooley shall execute a deed therefor and the proceeds of said sale shall be divided in pursuance of this agreement.”

The interest of Cooley, whatever it might be, was certainly conveyed to the defendants subject to the rights of the claimants as equitable owners, of whose rights the defendants were notified before purchase. As between individuals a court of equity might set aside the conveyance of Cooley as in fraud of the claimants, or, as the latter offer to ratify the sale upon payment of the value of the land, after the reimbursement of Cooley for the sum due him by the agreement, a court of equity might compel an accounting among all the parties and make a decree accordingly, and that is one view which may be taken of the case.

Treating the petition as a bill in equity, we are met with objections to our jurisdiction on the grounds—

First, that the court has jurisdiction in equity only to render a money judgment, as decided in Jones’s Case (131 U. S., 1).

Second, that such a case would involve the necessity of making Cooley a party to the suit, and of entering a decree which would be binding upon him. The very organization of the court forbids this. It was established to investigate claims against the United States, and Congress has never extended its jurisdiction to suits against individuals. Cooley is not a party'in the case. He could not be made so, and if he should come in voluntarily on notice the court would have no jurisdiction to make a decree to which it could compel him to submit.

Parts of the petition contain allegations sounding in tort, actions for which are expressly excluded from the jurisdiction of this court by the act of March 3,1887, above cited.

After reciting pending negotiations between the officers of the Government and one Mrs. Taylor as to the purchase and sale of her land adjoining to that for which the claimants are now seeking to obtain compensation, the petitioners make the allegations that said Cooley entered into negotiations for the sale of their land, “intending to deceive these claimants,” and that he conveyed the same to the United States “in fraud of these claimants,” after notice of their rights to the defendants’ purchasing officers.

The claimants’ petition sets out facts which indicate great wrongs done to them, and for which they would have a remedy in a court of equity if the United States were not concerned. But the G-overnment is not responsible for the torts of its officers. In Gibbons’s Case (8 Wallace, 269, and 7 C. Cls. R., 105, 109) quoted and reaffirmed in Langsford’s Case, above cited, the Supreme Court, after considering the general principles applicable to all governments in such transactions and the limited jurisdiction of this court, says:

“These reflections admonish us to be cautious that we do not permit the decision of this court to become authority for righting in the Court of Claims all wrongs done to individuals by the officers of the General Government, though they have been committed while serving the Government and in the belief that it was for its interest. In such cases, where it is proper for the nation to furnish a remedy, Congress has wisely reserved the matter for its own determination.”

In every view we can take of this case the demurrer must be sustained, and judgment for the defendants will be entered thereon dismissing the petition, unless on. or before the first Monday in February next the claimants elect to amend the same.  