
    CALVIN C. BLISS v. THE UNITED STATES.
    [No. 16727.
    Decided June 27, 1892.]
    
      On the Proofs.
    
    The claimant buys at a sale in confiscation proceedings, and again under a tax sale. He sells by quitclaim to a third party, against -whom suit is brought by the original owners. A decree is entered in their favor by consent.
    I. Under Act 8th June, 1878 (17 Stat. L., p. 332) the purchaser at a tax sale must defend in good faith, and can recover against the United States only upon judgment of eviction without collusion or consent.
    II. "When the purchaser at a tax sale sells by quitclaim he does not suffer by the eviction of his grantee, and the Government is not liable to him therefor.
    
      The Reporters’ statement of tbe case:
    There being no right of appeal from tbe decision of this case, no findings were filed. Tbe facts will be found stated in tbe opinion of tbe court.
    
      Mr. Luther S. Pike for tbe claimant:
    Bliss, having purchased at confiscation sale, became thereby a tenant per autre vie, and bound to pay tbe United States direct tax. (Pike v. Wassell, 92 U. S. B., 711.)
    He thereby became an “owner” within tbe purview of section 36, Act August 5,1861 (Guthberfs Oase, 20 C. Cls. B., 172), and of section 4, resolution of February 25,1867; Tbe law (sec. 1, act of June 7, 1862) required the direct tax to be charged upon the land as it was enumerated under the last assessment of it made under the authority of the State previous to 1st January, 1861, and it was so charged in this instance.
    Its payment by Bliss, however, was prevented by the commissioners’ erroneous interpretation of the tax laws, like unto that passed on in Bennett v. Hunter (9 Wall., 326). Their action excused Bliss’s nonpayment of the tax before the auction. The law is, that Bliss, by bidding in the land at the auction, did no more than pay the tax. It did not regard him as a “ purchaser.” (Cooley on Taxation, 2d ed., p. 501; Pleasants v. Scott, 21 Ark. 374.)
    The United States, on whose account the auction was held, were concerned only about the tax (Paynter’s Case, 21 C. Cls. B., 221.) A surrender of the surplus proceeds in cases of valid saleb to the owners of the land sold being expressly provided for by section 36, act of August 5,1861. Taylor’s and other cases the court is familiar with. There is nothing in the fact that the owner of the land bids it in at an auction held because of his default which can estop him from claiming the surplus money. Bussell v. Beed (27 Penna. St. B. 166) and GutJiburt’s Case (20 C. Cls. B., 172) are recognitions of this proposition, and of Bliss’s right to claim the surplus under section 36, act 5th August, 1861.
    But we go further. The two commissioners in Arkansas were not a legal board (Peay v. Schenck and Bliss, 1 Woolworth.) They had no authority to hold the auction. The law only required Bliss to pay the tax. The commissioners had no warrant of law to enlarge Bliss’s burden by erroneous interpretation of the law that led to the auction they had no warrant of law for making.
    The inevitable result was, that every cent received by the two commissioners from Bliss over and above the tax was so much more money received by them from him without warrant of law. We claim return of it to Bliss under section 4, resolution of February 25,1867. (Simon’s Case, 19 C. Cls. B., 601; Proclamation Gases, 11 ib., 672; 13 ib., 562; Seabrook’s Case., 21 ib., 39; Lawton’s Case, ib., 44.)
    As Bliss’s bidding the property in at the auction saved the property to the remainder-men and them from all loss or expense, be alone is entitled to the money. The right to claim return of the money having been in Bliss, he still has it, notwithstanding his quitclaim deed to Thayer. This because of the entire restricted character of the contract on Bliss’s part, evidenced by that deed under which Thayer would not have had any remedy against Bliss had it turned out that Bliss had no title at all, and which was fully satisfied by Thayer’s getting the valid confiscation-sale title (Payliter’s Case, supra; Story on Contracts, § 17; Kountz v. Davis, 34 Arle., 596; Mmj v. Le Olaire, 11 Wall., 322; 3 Washburn R. P., 4th ed., p. 356; Bawle, 607, and cases cited; Kart v. Porter, 5-Serg. & Rawle, 201; Wetter v. Bisooe, 13 Art., 426; Ludivielt v. Kuntzinger, 5 Watts & Serg., 58; Maynard v. Moseley, 3 Swanston, 651). A transfer of his right to claim a return of the money was no part of Bliss’s contract to transfer title evidenced by his quitclaim deed.
    A contract, then, for such a transfer (of which there is no evidence) must necessarily have been one independent of that evidenced by hi s deed — a single collateral contract for the assi gnment of a naked claim against the United States not permitted by section 3477, Revised Statutes.
    By taking the quitclaim deed Thayer was bound, to and did know by law that Bliss had no title under the auction held by the commissioners, and so is estopped to claim he paid a single cent for such a title. (Miller v. Fraley, 23 Ark., 735; 21 ib., 298; 12 Wall., 323; 15 Pet., 111.)
    
      Mr. F. P. Dewees (with whom was Mr. Assistant Attorney-General Cotton) for the defendants.
   Weldon, J.,

delivered the opinion of the court:

This is a suit growing out of the levying of direct taxes, under the act of 1862, on property situate in the city of Little Rock, State of Arkansas.

The property in 1861 belonged to Albert Pike and Thomas W. Newton, both of whom aided the Confederate States during the late war. In consequence of the adherence of the owners of the property to the Southern Confederacy, proceedings were commenced in the District Court of the United States for said State, against said property, for the purpose of confiscating the same, which proceedings resulted in a condemnation and sale. At this sale, the claimant became the purchaser to the extent that the same could be effected by proceedings in confiscation. After said sale, a tax was levied by the United States on said land, and because of the nonpayment of it, the said property in 1865 was sold, the said claimant becoming the purchaser? On the 23d day of August, 1866, claimant sold all his interest in said property by quitclaim to Charles K. Thayer.

Afterwards, in 1868, John Wassel, who claimed an interest in said land, acquired by and through a proceeding against the interest of Albert Pike, instituted a suit in equity in the Circuit Court of the United States for said district against Thayer, the purchaser from claimant, seeking by said proceeding to set aside the deed which had been made to claimant founded upon said tax-sale, and to declare null and void the title of said Thayer as made by said quitclaim by plaintiff.

August 14,1869, while said suit was ponding, Thayer conveyed by quitclaim to Ellen 0. Brown; in March, 1871, Ellen C. Brown conveyed her title to Andrews and Yenley by quitclaim; April, 1871, the suit of Wassel v. Thayer was submitted for a decree, and the following decree made and entered:

“And now on this day, and by like consent of parties, this cause came on to be heard upon pleadings, exhibits, documentary evidence, and depositions on file, and which documentary .evidence and depositions it is agreed are the same which are on file and were read on the hearing of the case of Washington L. Schenck and John Mills against Gordon W. Peay on bill, and Gordon W. Peay against Washington L. Schenck, John Mills, and Galvin O. Bliss on cross bill, and was heard; on consideration whereof, and by like agreement of said parties, it is ordered and adjudged and decreed by the court here, that all and singular the right, title, interest, estate, and claim, at law or in equity, of the said defendant Charles K. Thayer of, in, and totheseverallots, tracts, or parcels of land and premises, or any part thereof, known as the Odd Fellows’ hall property and the State Bank property, in the city of Little Bock, and more particularly described in said pleading herein, reference being thereto had, under and by virtue of this alleged pur- • chases thereof at a sale thereof by United States direct-tax commissioners for Arkansas.for alleged nonpayment of United States direct taxes thereon, made and held by said tax commissioners at Little Bock, on the 4th day of May, 1865, and all or any certificates or other evidence of such title issued to or acquired by said defendant in pursuance of his purchase at such tax sale, be, and the same are hereby, canceled, set aside, and held for naught, and it is admitted by said parties, as part of the record of this cause, that said direct taxes assessed upon said property here in controversy, together with all penalties and costs thereon, were tendered to said tax commissioners by or. on behalf of Albert Pike.”

It Will be seen by an examination of the decree, that it was entered by agreement of the parties. Under the act of 1872, the purchaser at a tax sale must defend in good faith, and can only recover upon the judgment of eviction. The Government is entitled to a defense made in good faith. It is the duty of the purchaser at ^ tax sale to avail himself of every resource to maintain the title acquired in and through the proceedings of the tax sale. The decree indicates a want of proper diligence upon the part of the claimant. While the courts had made a decision, which in effect, might invalidate the action of the commissioners in the levy of the tax, admissions are made in the decree, which in law invalidate it as a decree binding on the defendants.

Under the statute of 1872, providing for a refund of the amount paid by the purchaser at a sale, it is necessary to show that there has been an eviction without collusion upon the part of the purchaser with the party claiming title. The United States, not being a party to the suit between Wassel and Thayer, are not bound by the decree, unless it is the result of judicial investigation founded upon a. litigation conducted in strict accordance with the statute. There was no eviction, in fact, of the purchaser from the premises; it was only a failure of title founded on the tax sale. The claimant did not suffer the consequence of that failure. He had sold his interest in the property by quitclaim, and was not therefore responsible to his grantee upon the failure of the tax title.

We think Comptroller Matthews takes the correct view of the rights of the claimant in his letter, and the petition is dismissed.  