
    WILLIAM F. SLOCUM v. THE UNITED STATES.
    [No. 21380.
    Decided May 14, 1900.]
    
      On the Proofs.
    
    The claimant in final payment for 440 acres of public land sends to the receiver of the -land office a certificate of deposit for the sum of $440 payable to the order of the receiver. The certificate is indorsed by him and paid to his order and the proceeds deposited to his own credit and never accounted for or paid to the Government. The final proof papers are deemed insufficient by the local land officers, but are retained with the indorsement, “Held for supplemental proof of reclamation.” The claimant asks for the repayment of the $440, which is refused by the Commissioner of the General Land Office and the Secretary of the Interior. Suit is brought within six years after the decision of the Secretary.
    I.Final payment made by an applicant for a land warrant at the proper time and place and to the proper officer, and in the expectation of receiving therefor his final certificate of entry, is conclusive evidence that he did not intend to abandon his entry.
    II.Where an applicant for a land warrant makes his final payment to the proper officer at the proper time and place, he is entitled to receive it or to be paid back his money.
    III. The payment of money to a receiver of a land office is payment to the Government. When paid to the receiver it becomes money as much in the legal possession of the Government as though paid into the Treasury.
    IV. Where an applicant for a land warrant is compelled by the regulation of the Interior Department to pay his final purchase money when he submits his final proofs, the money so deposited is in the nature of a pledge.
    V.Under the land laws and the usage of the land office an appeal lies from a receiver to the Commissioner and the Secretary of the Interior, and until the final decision of the Secretary the statute of limitations does not begin to run.
    
      The Reporters’ statement of the case:
    The following are the facts of the case as found by the court:
    I. The claimant, on the 28th day of October, 1889, at Las Cruces, N. Mex., made an entry (No. 797) of 639.73 acres of public land under the desert-land act of March 3, 1877, and upon said entry paid to the receiver at said land office $159.95, being at the rate of 25 cents per acre.
    
      II. On the 9th day of November, 1892, the claimant, in final ' payment for 440 acres of land included in his said entry,' sent to the receiver of the land office at Roswell a certificate of deposit, No. 627, issued by the First National Bank at Eddy, N. Mex., for the sum of $440, payable to the order of Frank Lesnet, receiver. The said certificate of deposit was so indorsed by and paid to the order of the payee on November 18, 1892.
    The said certificate of deposit being converted by said Les-net into cash, the proceeds were deposited in the Bank of Roswell, N. Mex., to his own credit, and he has never paid over or accounted for the same to the Government.
    III. The final-proof papers were submitted on November 6, 1892, and were deemed to be defective and insufficient by the local land officers, but the same were retained by them with the indorsement “Held for supplemental proof of reclamation,” and the claimant was notified to furnish such proof.
    IY. The claimant made application under the act of June 16, 1880, for the repayment of the $440 paid to the agent of the United States for the reclaimed land, which application was denied by the Commissioner of the General Land Office, and the action of the Commissioner of the General Land Office, upon appeal to the Secretary of the Interior, was, on the 30th day of March, 1897, affirmed, by authority of which the United States now hold and retain the $440.
    Y. The supplemental and additional proof of reclamation which the claimant was required to furnish by notification of November 6,1892, was never furnished, but in lieu thereof he made application for repayment under section 2 of the act of June 16, 1880, upon the ground that, being a resident of the State of Colorado and not the Territory of New Mexico, in which the land in question is situated, he was estopped bj*-provision of section 8 of the amendatory act of March 3,1891 (26 Stat., 1095), from making entry of said land.
    YI. Upon this application for repayment under said section 2 of the act of June 16, 1880, the Secretary of the Interior decided adversely to such contention, and held that there was nothing in the amendatory act of March 3, 1891, which has reference to the final entry, but to the initial entry only, and that the claimant, although a citizen of the State of California, having initiated his claim under the act of 1877, which allowed any qualified citizen of the United States to make desert-land entries, could have completed his proof and made final entry under the provisions of sections 6 and 7 of the amendatory act of March 3, 1891, which, among other things, protected all valid rights which had accrued under the former or original act, and that inasmuch as he had failed and neglected to comply with the provisions of the act of March 3, 1877, he was not entitled to the relief sought.
    VII. As to the aforesaid $440, which was paid to said Lesnet, . receiver of the local land office at Roswell, N. Mex., and which was deposited in bank to his own credit, the said Lesnet has never made any account or payment of said sum of money to the United States, nor has the same ever been received by the Government or covered into the Treasury of the United States, and no account whatever has ever been made therefor to the Government by said Lesnet.
    VIII. The aforesaid desert-land entry No. 797 has never been canceled, but the same remains intact upon the records of the General Land Office.
    IX. There was no entry made, as the local officers had not accepted the final-proof papers; but under the instructions of the Commissioner of the General Land Office, dated March 10, 1884, it was the duty of the receiver, after examining the papers and finding them to be irregular and not in conformity with law, to have returned the money to the claimant.
    
      Mr. Harvey Spalding for the claimant.
    
      Mr. George II. Gorman (with whom was Mr. Assistant Attorney-General Pradf) for the defendants:
    Whatever cause of action for the return of this $440 accrued to the claimant, accrued either at the time of its payment, to wit, on November 3, 1892, or else at the date of the rejection of his final-proof papers, to wit, on November 6, 1892, and from that moment this court was open to him in a suit for its recovery, and from that moment the statute • of limitations began to run, and inasmuch as the petition in this case was not filed until June 15, 1899, it follows that more than six years have elapsed, prior to the time when the claim first accrued, and is therefore, by the language of the statute, forever barred from the jurisdiction of this court.
    
      The entry of Slocum was made under and pursuant to the provisions of the act of March 3, 1877 (19 Stat. L., 377), and was made upon the condition precedent mentioned in that act, and upon the breach of that condition by the entryman he forfeits all his rights under the contract of entry, as well as the first instalment of purchase money paid by him.
    There can not, under any possible circumstances, be any cause of action against the United States for the recovery of this |440, because it is shown by the return of the Interior Department and is an undisputed and indisputable fact that said sum of $440 has never been received by the United States from said Lesnet, and has never been converted into the Treasury, that the same has been retained by the said Lesnet as his own, fraudulently or otherwise, we know not how, and that said Lesnet has never in anywise accounted for the same to the United States. There can not, therefore, possibly be any implied contract to pay back to the claimant something which the Government has never received; and I need not waste the time of this court by citing the multitude of cases which decided that the Government is not to be held responsible for the theft, or the tort, or the malfeasance in office of its officers and servants.
   Nott, Ch. J.,

delivered the opinion:

The.court is of the opinion that the final payment of the $440, made by the claimant at the proper time and place and to the proper officer of the United States, and in the expectation of receiving in consideration thereof his final certificate of entry, is conclusive evidence that he did not intend to abandon his entry; and the courtis of the opinion that he was entitled either to receive from the defendants that for which he paid his money or to receive back his money from the defendants’ officers.

The court is also of the opinion that the payment of the money to the receiver of the land office was, in fact, a payment to the defendants. The embezzlement of the money by the receiver may have left the Secretary of the Interior without a fund which he could return to the claimant, but for the purposes of this action the money, when paid to the receiver, became as much money in the legal'possession of the defendants as if it had been paid into their Treasury. (Smith v. The United States, 170 U. S. R., 372.)

The court is also of the opinion that,' the claimant having been compelled by the regulations of the Interior Department to pay the final purchase money when he submitted his final proofs, the money so depositeá was in the nature of a pledge that he would complete his part of the transaction when the defendants should be ready to complete theirs (Smith v. United States, supra), and that, under the land laws and the usage of the Land Office, he might, and indeed it was his duty to, appeal to the Commissioner and Secretary for redress before subjecting the defendants to an action at law, and that while the matter was so pending and until the final refusal of the Secretary to refund the money the statute of limitations did not begin to run. The Supreme Co-urt has said in an analogous though not identical land case: “A right of payment of money theretofore paid has been given bjr the act, but it is only under the act that the right exists, and that right is to have the Secretary, in a proper case, issue his warrant in pajrment of the claim, and until he refuses to do so no wrong is done and no case for a remedy is presented. After the refusal the question then arises as to the remedy.” (Medbury v. The United States, 173 U. S. R., 492, 497.)

The judgment of the court is that the claimant recover $440.  