
    ADOLPH NELSON v. THE UNITED STATES.
    [No. 21417.
    Decided April 30, 1900.]
    
      On the Proofs.
    
    The claimant November 18, 1889, files a desert-land declaratory statement, and a final receipt is issued thereon December 4, 1890. The purchase money is paid and received in mutual mistake of fact, claimant supposing that the description in his entry embraced the land he has reclaimed and the register and receiver of the land office supposing the land which the claimant has reclaimed is that covered by the description in the entry and receipts. It appears later that the land reclaimed is in township 22 instead of township 21, the land described in the entry. When the mistake is discovered the claimant files his application to correct the terms of his entry. The application is rejected by the office, and the decision is affirmed on appeal. If the claim accrued before the final action of the Secretary of the Interior on the appeal it is barred by the statute of limitations.
    I.Where both parties suppose that an entry in the land office covers the land which the claimant has improved, and in that belief the purchase money is paid and the certificate issued, and it is discovered that the mistake of a numeral transfers the entry to an adjoining section of land, and the Government cancels the entry, it is bound in equity and good conscience to refund the purchase money; and an action for money had and received will lie.
    II.An executive officer has limited statutory authority and can disburse or refund public money only as he is specially authorized. A claimant may have a legal right in this court, which no executive officer has power to satisfy.
    III.Money deposited in the land office for the purpose of purchasing land is held in trust for that use, and the transaction may remain open until finally acted on by the Secretary of the Interior; and the statute of limitations does not begin to run until the final action of the Department.
    
      
      The Reporters1 statement of tbe case:
    Tbe following are tbe facts of tbe case as found by tbe court:
    I. Tbe claimant filed on November 18,1889, desert-land declaratory statement No. 2085, under tbe provisions of tbe act of March 3, 1877, for entry of section 5, township 21 north, range 3 east, sixth principal meridian, and final receipt thereon was issued December 4,1890.
    II. Tbe monejr was paid and received in mutual mistake of fact, it being supposed by tbe claimant that tbe description of tbe land in bis entry embraced tbe land which be bad in fact reclaimed and it being supposed by tbe register and receiver of tbe land office that tbe land which tbe claimant bad reclaimed was tbe land covered by the description in tbe entry and receipts. But it subsequently appeared that tbe claimant bad procured tbe services of a surveyor to obtain and furnish him with a proper description of the land which be intended to reclaim and that be bad made bis entry in the land office in accordance with the description given him by tbe surveyor; and it further appeared that tbe land which be bad in fact reclaimed was section 5, township 22 north, range 3 east, instead of section 5, township 21 north, range 3 east, tbe land described in tbe entry and receipts.
    III. So soon as the mistake was discovered tbe claimant filed bis application with tbe officers of tbe land office to correct and change tbe terms of bis entry so that tbe same should embrace tbe land which be bad reclaimed. Tbe application was rejected by tbe office, and tbe decision was affirmed on appeal, by departmental decision of April 27, 1893.
    IY. Tbe claimant filed bis application for tbe repayment of tbe purchase money on December 19, 1896. This application was denied January 2, 1897, and tbe decision was affirmed by departmental decision of July 22, 1898. A motion for a review of tbe Secretary’s decision, just referred to, was also denied September 23, 1898.
    Y. Tbe land which tbe claimant improved, as before set forth, bad been reserved under act of May 28,1888, as tbe Benton Beservoir site, No. 10, and all of section 5, township 22 north, range 3 east bad, in fact, been withdrawn from entry on August 5,1889, under instructions of the Secretary of tbe Interior in accordance with' tbe act of October 2, 1888 (25 Stat. L., 527), when the claimant made his entry on the 15th of November, 1889, as set forth in Finding I. The application of the claimant to change his entry so as to conform with the land actually reclaimed was refused for the reason that the land was not subject to entry for the reasons aforesaid.
    
      Mr. Harney Spalding for the claimant.
    
      Mr. George II. Gormcm (with whom was Mr. Assistcwvt Attorney-General Pradt) for the defendants:
    No relief can be had under the jurisdiction of this court for the reason that the claim is barred under section 1069 of the Revised Statutes. Whatever cause of action the claimant had against the Government cognizable in the Court of Claims first accrued to him when application was made to change this entry, and was denied, to wit, on June 7, 1892, and affirmed on appeal to the Secretary of the Interior on April 27, 1893. The petition in this case was not filed until July 3,1899. The statute of limitations is not held in abeyance because the claimant was seeking redress from the Secretary of the Intel’ior under the provisions of the act of June 16, 1880, during a portion of that time. If he chose to select that forum in which to voice his demands he did so at the peril of having the. statute of limitations run against him in the Court of Claims, as nothing will prevent the running of that statute except the disabilities enumerated therein. (See case of Hugh Gcurlisle, 29 C. Cls. R., 414.)
   Nott, Ch. J.,

delivered the opinion of the court:

It is plain in this case that the money was paid in mutual mistake of fact. Both parties supposed that the claimant’s entry in the land office covered and described the land which he had improved and was living upon. In that belief the claimant paid the. purchase money and the Government issued its certificate. When it was discovered that the mistake of a single numeral had transferred the entry to an adjoining section of land the Government canceled the entry but did not repay the purchase money. In equity and good conscience it is bound to do so.

The court does not mean to hold that the action of the Commissioner of the Land Office and of the Secretary of the Interior was erroneous. An executive officer has a limited statutory authority, and can disburse or refund public moneys only in cases where he is expressly authorized so to do. In this court a cause may be one of legal right, though no executive officer be empowered to satisfy it. In this case it seems indisputable that the Government in equity and good conscience is bound to refund this money; and in such a case the action for money had and received will lie.

The statute of limitations is set up, and the question arises, When did the claim first accrue? If this was an ordinary transaction of debtor and creditor it might be said that it accrued when the mistake was discovered. But in this case the claimant supposed that the mistake would be remedied by allowing him to amend the terms of his original entry. Accordingly he did not demand back the purchase money, but applied first for the other relief, the correction of the original entry. The application was overruled. In the meanwhile the money remained in the hands of the defendants, being in the nature of a pledge for the amended certificate if one should be issued. The claimant next applied for the return of the purchase money. That application was also overruled. The Secretary’s final decision was not made until the 23d of September, 1898, and it was not until then that the cause of action accrued within the principle laid down by this and the Supreme Court in Irene Taylor’s Case. (14 C. Cls. R., 339; 104 U. S. R., 216.) The Government was bound to do one of two things, either to give the claimant as purchaser a title to the land or to hold the money until he should demand its return. In the latter alternative it was a case of d&posiiywm, where a demand was necessary before an action would lie. Downes v. Phoenix Bank (6 Hill N. Y., 297); Bruce v. Tilson (25 N. Y., 194); Codman, v. Rogers (10 Pick. Mass., 112); United States v. Wardwell (172 U. S. R., 48.)

Purchasers who come into the land office and deposit their money in the expectation of receiving in due time a patent for the property which they seek to purchase have a right to regard the money as held in trust by the Government for the purposes of that transaction. They know that the business is not transacted wholly by any one man; they know that a transaction may remain open and pending until it has received the final fiat of the Secretary of the Interior. They therefore have a right to rely upon the Government’s public and established methods of doing business; and those methods keep the transaction open until it is finally disposed of as above stated. The purchaser has no right to change his mind and demand the money, but so long as he is without fault he has a right'to regard the money as his pledge that he will peiy form his part in the transaction, and that the Government, if it can not perform its part, will hold the money in trust.

It was said by the Supreme Court in relation to other funds of an individual remaining in the Treasury: “A construction consistent with good faith on the part of the United States should be given to these statutes. It would certainly not be fair dealing for the Government to say to the owner that the surplus proceeds should be'held in the Treasry for an indefinite period for his use or that of his legal representatives, and then, upon suit brought to recover them, to plead in bar that the demand therefor had not been made within six years.” {Irene Taylor's Case, supra.) So here it may be said that “a construction consistent with good faith on the part of the United States” requires that under the land laws a purchaser who has deposited money in the expectation of receiving a patent for the land he seeks to purchase shall have the right of appeal from the local land officers to the Commissioner and to the Secretary untrammeled by the statute of limitations.

The judgment of the court is that claimant recover against the United States in the sum of seven hundred and ninety-nine dollars and fifty cents ($799.50).  