
    ANNE S. MEANS v. THE UNITED STATES.
    [No. 18788.
    Decided March 23, 1896.]
    
      On the Proofs.
    
    Land is sold under the direct-tax acts in St. Helena Parish, S. C. The owner dies subsequent to the sale, leaving a widow and one child. Before his death his wife buys the land from the United States. The daughter dies, leaving her mother her only heir. The question in the case is whether the claimant, being sole heir of the original owner and likewise purchaser, can recover in this suit the price per acre given by the act 2d March, 1891, or the purchase money which she paid.
    I. Where the claimant in a direct-tax case is the sole heir of the original owner, and likewise in possession of the property as purchaser from the Government, she can not recover the price per acre fixed by the Act M March, 1891 (26 Stat. L., p. 822), but only the purchase money which she has paid into the Treasury.
    II. Under the law of South Carolina, a widow of the deceased owner' of land, who died intestate, may succeed to the rights of her daughter, who also died intestate, and thus, in connection with her own rights as widow, have all the legal qualifications necessary to take as heir of her husband. Previous decisions relating to these cases reviewed. And see Chisholm’e Case, post.
    
      
      The Reporters’ statement of tbe case:
    The following are the facts in the case as found by the court:
    I. On the 12th of March, 1863, a plantation in St. Helena Parish, Beaufort County, S. C., containing 1,254 acres, and designated as Means Place, was sold by the direct tax commissioners of South Carolina to satisfy a tax assessed against it of $60.82. The said plantation was returned on the proper tax book of the State of South Carolina as containing 1,254 acres. Of these 754 were rated by the State of South Carolina as usually cultivated and the remaining 500 acres, at 20 cents an acre, being lard not cultivated.
    II. The owner of the land at the time of the sale was Thomas Means. He died in 1876, and the claimant is his sole heir at law.
    III. On December 8,1866, the claimant purchased from the United States 160 acres thereof for $1,850. At the time of the purchase claimant was the wife of Thomas Means, who left surviving him a daughter who died without children and intestate.
    IY. On the 1st day of February, 1892, the claimant herein duly filed her petition in this court for the recovery from the defendants the sum of $5 per acre for the cultivated lands in said farm under the fourth section of the act of March 2,1891, together with the said $1,850 paid by claimant for the repurchase of the said 160 acres. Said cause was docketed in this court as Anne 8. Means v. The United States, No. 17348. On May 7,1892, the petition of the claimant was amended by striking out the claim for said $1,850 for the repurchase of said 160 acres.
    The cause thereupon proceeded to trial, and on October 24, 1892, the court rendered judgment in favor of said claimant in the sum of $3,328.52, the same being compensation at $5 per acre for 594 acres (cultivated), and $1 per acre for 500 acres (not cultivated), less taxes, etc. The claim in the present case is for said $1,850 paid by claimant for the repurchase of said 160 acres from defendants, and is the same claim as that item which, on motion of claimant, was stricken out of cause No. 17348, as aforesaid. The said 160 acres, for which claim is now made, was a part of the Means farm, for which judgment was rendered in favor of claimant in cause No. 17348, as aforesaid. The claim is now made for recovery of said sum of $1,850 as proceeds from the resales of said ICO acres, in addition to the compensation already allowed therefor, the claim being based on the last proviso of the said act of March 2,1891. The taxes were deducted in case No. 17348.
    
      Mr. James Lowndes for the claimant.
    
      Mr. George II. Gorman (with whom was Mr. Assistant Attorney- General Lodge) for the defendants:
    In the motion in cause No. 17348, wherein counsel for claimant moved the court to strike out the portion of the claim which forms the subject of the present case, he says:
    “The court having decided that claimants are not entitled, to recover both the allowance of $5 per acre and the proceeds of the resales, claimant desires to amend her petition so that the claim for the proceeds of the resale shall not be submitted to the court in this case.”
    On page 4 of his brief filed in the present case counsel says:
    “ While at the date of repurchase, her husband being then alive, Mr. Means was a stranger to the title, subsequently, after the death of husband and daughter, the title devolved upon her; which fact would, under the statute, debar her from claiming the $5 per acre compensation.”
    And so he x>roceeds to contend that she is entitled to the amount received into the Treasury from the resale.
    Under the theory presented in the first quotation of course the whole matter is barred, settled, and determined, under the doctrine of the decision in the Sams Case (27 C. Cls. R., 266), and the recent decision in the McKee Case, No. 18210, now on appeal by claimant in the Supreme Court. Nothing whatever, therefore, need be said on that subject.
    The theory presented by the second quotation is unique. It assumes that although the claimant was a stranger to the title at the time when she made the repurchase, yet because, ten years afterwards, two persons happened to die intestate and without other heirs, through which unforeseen contingency the title to the property purchased would have devolved upon her if it had belonged to her ancestors at the time of their respective deaths, that therefore she is entitled to the benefit of the last proviso of the act of March 2,1891, as though she were an owner buying back her own property from the United States.
    
      That provision is as follows:
    “ That any sum or sums of money received into the Treasury of the United States from the sale of lauds bid in for taxes in any State under the laws described in the first section of this act in excess of the tax assessed thereon shall be paid to the owners of the land so bid in and resold, or to their legal heirs or representatives.”
    This provision only applies to those persons who owned the property sold for taxes prior to such sale, and who, at such resale, are practically buying' back- their own property. It has no sort of reference to third persons, to strangers to the title, who, by the purchase, acquire something they never had before, and who, therefore, received full consideration for the money that they paid out for the land at such purchase.
    When the claimant bought this 160 acres from the United States she had absolutely no right, title, or interest in the land whatever. Nor did either of her two ancestors (for purposes of devolution to her) have any right, title, or interest in it. She was a third person — a complete, stranger — -just as much so as John Jones would have been had he become the purchaser. And if the contention here made were true, then every cent of money received into the Treasury from the proceeds of resales by third persons and strangers would have to be paid back to them, if ever and whenever, by death or intermarriage, such stranger becomes the heir of the original owner.
    If the fallacy of this position was not patent upon its face it would become so upon a little reflection. It is perfectly clear that this lady could never, under any possible circumstances, become the owner of this 160 acres of land by heirship from the original owner or through his children. On the 12th of March, 1863, when the United States sold this farm for direct taxes and became the purchaser at such sale, the United States became the owner of the farm, and Mr. Means ceased to have .any right, title, or interest in it. In December, 1866, when the claimant here purchased 160 acres of this farm from the United States and received from them her deed for the same she immediately became the owner thereof by reason of her purchase, and held the property under that title. Now, it so happened that ten years afterwards Mr. Means died, and his only child died, intestate, whereby the claimant here became the heir to whatever property he owned at the time of his death. But she manifestly could not inherit from him what she already owned by purchase from some one else, merely because thirteen years before that time he used to own it and it would have descended to her if he had continued to own it at the time of his death.
    The decision in the Barmcell Case (28 C. Cls. R., 246), which counsel cites in support of his contention, has no sort of application whatever to the facts of the case at bar. The court states that case as follows :
    “ When the property described in the findings was sold under the direct-tax acts it was owned by the plaintiff herein. The lot was bid in at the sale by the United States, and was after-wards sold to the plaintiff (the former owner) for $2,600.”
    The court then goes on to hold that although the claimant was not entitled to recover the $5 per acre provided for in the first clause of section 4 of the act of March 2, 1891, he was entitled to recover the amount paid in at the resale,, less tax, as provided in the proviso of the last clause of said act. This decision has been followed without question ever since, and is plainly a correct interpretation of the statute. And if Mf. Means or anyone who has been the former owner of this property had bought it from the Government the case would have fallen within the scope of the Barnwell decision, and she would have judgment. But such is not the case at bar. She who purchased this land from the United States was not and never had been the former owner of it. She had no right, title, or interest in it. By her purchase she became possessed of property which she never owned before and which she never would have owned except by and through such a purchase; and to return her the money that she paid for it would be tantamount to making her a present of the land. And this is in perfect accord with the decision of this court in Murray’s Case.
    As-was said by Judge Weldon in the closing sentences of his opinion in the Chaplain Case, the law does not intend that a claimant should have the land by purchase and also to receive compensation for it. “The claimant has not suffered by a diminution of her estate, and is not, therefore, entitled to compensation.”
   Weldon, J.,

delivered the opinion of the court:

The facts are briefly as follows: On the 21th of March, 1863, aplantation containing 1,254 acres, situate in Beaufort County, South Carolina, was sold by the direct tax commissioners of the United States to satisfy a tax assessed against it of $60.82; a part of it consisted of cultivated and a part of uncultivated ■land; the owner at the time of the sale was Thomas Means, who died in the year 1876, leaving a widow, the claimant, and a daughter as his heirs; in 1866 the claimant bought 160acres of said plantation from the United States, paying for the same the sum of $1,850; after the purchase of the land by claimant the daughter died unmarried and intestate, leaving her mother as her only heir.

In 1892, the claimant commenced a suit in this court under the provisions of the Act of March 2,1891 (chap. 496, 26 Stat. L., 822), to recover compensation under said act and obtained a judgment for the sum of $3,328.52, the same being compensation at $5 an acre for the cultivated and $1 per acre for the uncultivated land; but before trial claimant eliminated all demand for the 160 acres purchased as aforesaid and for which she now brings this suit.

By this proceeding, she is seeking to recover the purchase price paid, to wit, $1,850, less the tax, interest, and costs. The defendants insist, that as the heir of her deceased husband and child, she is not entitled to recover upon that provision of the statute, which allows the owner or heirs to recover money received into the Treasury from the sale of lands in excess of the sum assessed thereon. The defendants also insist, that whatever right the claimant has, comes under the first part of section four of said act and not under the last clause.

If the claimant is remitted to the first clause of the statute, her right would be measured by the limitation of five dollars and one dollar per acre; while if she succeeds under the last clause the extent of recovery is measured by the amount of the sale of the lands, less the assessment for taxes. The Act of March 2,1891 (ch. 496, 26 Stat. L., 822), has been the subject of judicial interpretation in this court in many cases, and much difficulty has been encountered by the court in applying its provisions, exceptions, and provisos to the varied conditions of fact, which arise out of the complicated relations and questions incident to the ownership and succession to the legal owner at the time of the sale.

The fourth section in substance provides that the owner of lands which were rated for taxation as cultivated shall recover at the rate of $5 per acre, and for land not cultivated at the rate of $1 per acre. To that there is the proviso, “That in all cases where such owners or persons claiming under them have redeemed or purchased said lands or any part thereof from the United States they shall not receive compensation for the parts so redeemed or purchased.”

The statute provides compensation for three classes of land, first, lots in the town of Beaufort, one-half of the assessed value; cultivated lands at the rate of $5 per acre, and land not cultivated at $1 per acre. It also provides for a distinct mode of compensation in the last clause of section four as follows: "And provided further, That any sums of money received into the Treasury of the United States from the sale of lands bid in for taxes in any State under the laws described in the first section of this act (12 Stat. L., 294, 422, 640; 14 Stat. L., 568) in excess of the tax assessed thereon shall be paid to the owners of the land so bid in and resold, or to their legal heirs or representatives.” This proviso contemplates a distinct measure of compensation; but whether in addition to or in lieu of the compensation provided in the first portion of the section, it is somewhat difficult to determine. It is safe to assume that Congress did not intend a double compensation. The last clause considered by itself is plain and unambiguous; and were it not for the compensation of five dollars and one dollar per acre as provided in the first part of the section no question of doubtful construction could arise.

In the case of Sams et al. (27 C. Cls. R.., 267) it was contended that the claimant had a right to recover under both provisions of the law, to wit, five dollars per acre and the proceeds of the sale less the taxes and costs. Upon that contention this court held:

“Nor do we express any opinion upon the question whether or not the owners of the land in the parishes of St. Helena and St. Luke may have the right of election either to take under the last proviso of section 4 the excess for which the land was sold or under the first part of the section the value per acre as there fixed. We decide now only that they are not entitled to both.”

In the case of Barnwell (28 id., 246) the court decided that “The owner is entitled to the return of the money actually paid by him less the amount of the tax.” • In that case a lot in Beaufort, S. 0., was sold to the United States for the sum of one hundred dollars and resold to the claimant, the former owner, for the sum of $2,600. The court in substance decided that the claimant was not entitled to receive the benefit of the statute as to the allowance of one-half, of the assessed value, but was entitled to recover the money in the Treasury arising from the sale of the lands less the taxes and costs. The court said: “We are of the opinion that Congress by the act intended to make good the losses and nothing more: it did not .intend to pay for the land to the owner who actually had the land, but did intend to give him back the money he actually paid for it and which is in the Treasury.”

The question which arises in this case was considered by the court in the case of Murray (29 id., 366). In that proceeding there was a purchase by the widow; but after the death of the husband and while she was an heir of the husband under the laws of South Carolina.

The question of the liability of the defendants is determined by the inquiry as to what would be the right of the owner of the legal estate, if he were the claimant in this proceeding, and a determination of his rights fixes the extent and limit of the rights of his heir. The claimant; is dependent upon the same title, as she could not, and did not, inherit more or less than his rights. She derives her claim through him, and he being the source of title, her rights are coequal with his. In the Sams Case we refrained from the decision of the question as to whether or not a party is entitled to recover under the last clause of the statute when he had absolutely lost his land, because upon the question of his claim in that particular there was a deficiency of proof, it not having been shown what was the amount in the Treasury from the sale after the deduction of the proper allowance. We simply held that a claimant was not entitled to recover both. This case presents by the adequacy of its proof, the question whether such a recovery can be had where there was a loss of the land by the purchase of the claimant before any rights inhered in her as the heir of the legal owner. At the time she purchased she acted as a femme sole, and in legal contemplation it was a purchase fry a stranger having no privity in estate with the former legal owner. In fact, no estate existed in anyone except the United States, all rights, both of the husband and the inchoate right of dower of the wife, being exhausted and divested by the proceedings of the tax sale.

Whatever rights of recovery the claimant has must come either within the first proviso to section four or within the last.. The first is as follows: “That in all cases where such owners, or persons claiming under them have redeemed or purchased said land or any part thereof from the United States they shall not receive comjiensation for such parts so redeemed or purchased.” The claimant in this proceeding is claiming under Thomas Means, the original owner, and is as much precluded from the compensation by the acre provided in the fourth section as would Thomas Means if he were living and the claimant in this case; and she is, therefore, remitted to the last clause of the section for the determination of her rights. It was held in the Murray Case, that a purchase by the widow after the death of the owner was a purchase by a stranger, and entitled the heirs at law of the owner at the time of sale to recover under the last clause of section four.

The purpose of Congress was to relieve the owners of land-sold under the direct-tax act from the effect of such sale, by providing a compensation by the acre where the land was absolutely lost — that is, not redeemed or purchased; but where purchased then a compensation measured by the sum of money received into the Treasury for the sale- of lands in excess of the tax assessed thereon. In the Barnwell Case, we held that the owner was entitled to the benefit of the last provision of section four, but not entitled to the first inasmuch as the claimant had bought the land. Applying the doctrine of that case (which is conceded to be correct), the rights of the claimant in this proceeding are determined under the latter clause.

The estate of Thomas Means was deprived of the benefits of the land sold, by the divestiture of title, and Congress by the act of 1891, intended to restore to the estate the benefits of a compensation measured by the acre, or by the amount of money in the Treasury as the proceeds of the sale less the taxes. If this suit had been brought by the legal representative of Thomas Means, no question could have arisen as to the right of recovery; because his estate would be entitled to the recompense provided by the act. Some question has arisen as to the legal qualification of the wife as an heir in this proceeding, but construing the act as intending to provide to the estate either to the legal representative or the heir, compensation, and the claimant succeeding to the rights of her daughter iu connection with her rights as widow under tli e statute of South Carolina, we hold that she has the legal qualifications to take as heir of her husband and legal owner.

We are of opinion that the substantial issue of this claim was passed upon in the consideration of the Murray. Case, and the reasoning of Judge Davis in that justifies a judgment in this case for the amount paid for the land under the last clause of the fourth section.

Judgment for the sum of $1,850.  