
    FRANK BLACKLOCK, RECEIVER, v. THE UNITED STATES.
    [No. 22911.
    Decided January 29, 1906.]
    
      On the Proofs.
    
    Internal-revenue taxes are duo from one Smith to the United States in August, 1SG9. Subsequently a demand for payment is made by the collector. ' Subsequent to the demand Smith executes a deed of trust in the nature of a mortgage to one Beazeley to secure the loan. Subsequent to the deed of trust the collector distrains upon the mortgaged property and sells it. The United States having bid in the property, through its collector at the tax sale, subsequently sell and convey it to a third party. Beazeley’s representatives then advertise the property for sale, but the sale is stayed by 'an injunction .of a State cqur.t. , The representatives of the mortgagees now come into, court under a special act of Congress conferring jurisdiction to hear and determine the claim of the claimants against the Government “ on 'account of the sale, purchase, or occupation by the Government, through,-its internal-revenue officers, or others, of certain real estate,” etc.
    I. If any person neglects to pay an internal-revenue tax after demand, the Act 13th July, 1866 (14 Stat. L., p. 107), declares that “ the amount shall he a lien in favor of 1he United States from, the time it was due until paid ” “ upon all property and rights to property belonging to such person.” This lien is superior to a mortgage or deed of trust executed subsequently to the demand for payment, and embraces every ’species of property subject to ownership.
    II.The collector, “ after demand, may levy upon all property and rights to property belonging to such person ” “ or on ivhich said lien exists, for the payment of the sum due as aforesaid; ” “ and in all eases of sale, as aforesaid, the certificate of such sale shall transfer to the purchaser all right, title, and interest of such delinquent in and to the property sold.” The only condition imposed by the statute upon the co1 lector is that there shall have been a demand for payment and ' neglect or refusal, after demand, by the taxpayer.
    III. A collector, under the Act 13th July, 18GC, may levy upon and sell the property; or the Commissioner of Internal Revenue may direct that a bill in chancery be filed to enforce the lien, under the Act 20th July, 1868 (15 Stat. L., p. 1G7). The latter act does not repeal the former.
    IV. A tax sale conveys to the purchaser no other interest in the property than that belonging to the delinquent tax debtor at the time the Government’s lien attached. If a third person have a prior lien or interest in the property by mortgage or deed of trust, it will not be destroyed by the sale; and if it be duly recorded, the record will be notice to the purchaser.
    V.A mortgagee, or beneficiary under a deed of trust, may protect his security against the prior lien of the Government or may • redeem the premises if sold under the Act 13th July, 1SGG.
    
      The Reporters'- statement of the case:
    The following are the facts of the case as found by the court:
    I. Special jurisdiction to hear and determine this case was conferred on the Court .of Claims by act of Congress of May 27,1902, in the following- words:
    “ That jurisdiction is hereby conferred on the Court of Claims to hear and determine the claim of* Rinaldo P. Smith, of Baltimore,’Maryland, against the Government of the United States on account of the sale, purchase, or occupation by the Government, through its internal-revenue officers, or others, of certain real estate of one George J. Stephens, in Greene County, Virginia, upon which the late firm of Smith, Ellett and Company, now represented by Rinaldo P. Smith, had a prior lien, and the right of the Government to plead the statute of limitations in bar of said claim is hereby waived: Provided, That said claimant file his petition within sixty days from the passage of this act in said Court of Claims, either at law or ill equity, as he may deem the rights of his case shall require; and the Government shall, upon notice served according to the rules and practice of said court, appear and defend against said suit, and the same shall proceed to final hearing and judgment, with the right of appeal to the Supreme Court of the United States by either party, as provided by law.”
    II. The firm of Smith, Ellett & Co., which was composed of Binaldo P. Smith and Francis M. Ellett, was engaged in business as leather and commission merchants in Baltimoi'e, Md., from some, time in the year 1867 or 1868 to .January 1, 1.870, when its personnel was changed ¡by .admitting/therein as a full partner William F. Larrabee, and continuing in the same business under the firm name and style of Larrabee, Smith & Ellett, taking over the' entire assets of Smith, Ellett & Co. The said firm of Larrabee, Smith & Ellett was subsequently, to wit, January,, 1, 1875, dissolved by limitation. It appears that said Binaldo P.- Smith was settling partner for each of said firms.
    Said Binaldo P. Smith filed his petition herein June 28, 1902, and having subsequently died, Frank Blacklock, his executor, was duly substituted as claimant herein January 14, 1903.
    ' III. On October 26, 1869, George J. Stephens, a distiller and tanner, of Greene County, Virginia, ivas indebted to the-firm of Smith, Ellett and Co. in the sum of $7,000, already due, and the further sum of $2,000 to become due in the course of future dealings. Being so indebted and to secure the same he executed the following instruments in writing:
    [int. Revenue, 2. Mortgage cancelled Oct. 26, 1869. Stamp here, Two dollars. 2.]
    “ On' demand I promise to pay to Smith, Ellett and Company the sum of four thousand dollars, value received.
    “ Witness my hand and seal, this 26th clay of October, 1869.
    “ G. J. STEPHENS. [SEAL.]
    “ Witness:
    “ J. B. Tucker.”
    “ This deed, made this 26th day of October, 1869, between George J. Stephens, of Greene County, Virginia, of the first part; Wyatt S.' Beazley, trustee, of said county and State, of the second part, and Binaldo P. Smith, Francis M. Ellett, doing business under the style and firm of Smith, Ellett & Co., of Baltimore, and State of Maryland, of the third part:
    “ Whereas the party of the first part is indebted to the parties of the third part, by bond of even date with this deed, in the sum of four thousand dollars; and whereas the parties of the third part have heretofore accepted drafts of the party of the first part, which are now current, and not yet due and payable, for the accommodation of the said party of the first part, for the sum of three thousand dollars; and whereas the parties of the third part have agreed, for the further accommodation of said party of the first part, to accept from time io time, as he may need, his drafts on them for the further sum of two thousand dollars;
    “And .whereas it has been further agreed between the said party of the first part and the parties of the third part to renew the said acceptances from time to time, and when any shall be paid by the said party of the first part to give him the privilege to draw again upon the said parties of the third part for the amount so paid,.which thej? have for.like accommodation agreed to accept, so that there shall always be on their part absolutely for his accommodation by said acceptances of a sum equal to five thousand dollars, in addition to said bond of four thousand dollars;
    “And whereas it is agreed that this course of dealing shall continue for the period of three years from this date;
    “And whereas the party of the first part is anxious to secure as well the bond aforesaid as the acceptances already made and given by the parties of the third part, as those hereafter to be made and given as aforesaid, to the amount of five thousand dollars;
    “ Now, this deed witnesseth: That the party of the first part doth grant .to the party of the second part a certain tract of land containing about 4Ó0 acres, more or less, in the county of Greené and State of Virginia, lying on the Rockingham turnpike, about four miles from Stannardsville, upon which said party of the first part now resides, with the mansion house and all other buildings thereon, including the tannery and distillery thereon and all things appurtenant thereto, in trust to secure the said bond of four thousand dollars, and all the acceptances already made and given as aforesaid, noAV current and to become payable, and all acceptances to be hereafter made and given as aforesaid, and all which may be made and given for renewal of former ones, or to replace the money paid by the party of the first part in taking up former ones as aforesaid, or in any other manner as stated in the premises, so as the same shall not exceed the sum of five thousand dollars.
    
      “And if tbe said party of the first part shall faithfully comply with the contract made and entered into this day with the parties of the third part for the delivery to them of goods for sale on consignment, or in .default of such delivery for the payment of damages for such failure, then the parties of the third part shall not be allowed to require a sale under this deed for three years from this date. But sale may be so required if the said party of the first part shall at any time fail to comply as aforesaid with the terms of said agreement.
    “And the party of the first part doth covenant that he will warrant generally the property hereby conveyed.
    “ Witness the following signature and seal:
    “ G. J. STEPHENS. [SEAL.]
    “ Wyatt S. Beazley, [seal.]
    “ Trustee.
    
    “ [XT. S. internal-revenue stamp here.] ”
    Said deed of trust was duly acknowledged and recorded among the land records of said Greene County, Va., on the 30th day of October, 1869, which property is shown to have been worth more than $3,000 at the time of the execution of said trust deed.
    IV. Upon the change of the firm of Smith, Ellett & Co., and the formation of the new firm of Larrabee, Smith & Ellett, in January, 1870, the said Stephens debt, consisting of trust deed and note aforesaid, became the partnership property of the firm of Larrabee, Smith & Ellett. On the 1st day of November, 1870, said debt, secured by the said deed of trust, amounted to the sum of $8,660.44, and about 1873 or 1874, during the five years’ existence of the firm of Larrabee, Smith & Ellett, the said Stephens debt was sold .by Rinaldo P. Smith and Francis M. Ellett, his copartners, for a full and valuable consideration to the said William F. Larrabee in his individual capacity, and the said Francis M. Ellett directed the bookkeeper of the said firm to transfer the said Stephens debt to William F. Larrabee on the books of said copartnership. Whether said transfer was made as directed does not appear. It does appear that the said Stephens debt Avas not thereafter carried on the books of said copartnership as an asset of said firm, or of the subsequent firm of Smith, Ellett & Co., organized after the dissolution of the firm of Larrabee, Smith & Ellett in 1875.
    
      V. Subsequent to tlie passage of the act of May 27, 1902, to wit, November 17, 1903, Frank Blacklock, executor of said Rinaldo P. Smith, and John T. Morris, surviving execu'tor of the estate of William F. Larrabee, deceased, entered into the following agreement:
    “ This agreement, made this 17th day of November in the year one thousand nine hundred and three, between Frank Blacklock, executor of Rinaldo I1. Smith, of the first part, and John T. Morris, surviving executor of William F. Larrabee, of the second part, all of Baltimore city, in the State of Maryland.
    “ Whereas William F. Larrabee at the time of his death Avas the equitable assignee of a certain claim against the United States GoAuirnment arising out of the sale oi property in Virginia by the Government in disregard of the claims of the firm of Smith, Ellett & Company as mortgagees thereof.
    “And whereas Rinaldo P. Smith Avas duly authorized and fully empoAvered to prosecute said claim against the Government and take all necessary steps therefor, under an agreement Avith EdAvard Otis ÍTinkley, one of the executors of William F. Larrabee, now deceased, whereby said Rinaldo P. Smith should receive one-lialf of the amount realized thereon, Avithout any liability of the estate of William F. Larrabee for any costs or. expenses incurred in connection therewith.
    “And whereas an act of Congress was obtained by said Rinaldo P. Smith in his lifetime giving jurisdiction to the Court of Claims to try such case upon the suit of said Rinaldo P. Smith, and suit Avas brought and is now pending in the Court of Claims, the said Frank Blacklock, executor of Rinaldo P. Smith, having been substituted as plaintiff therein.
    “ Noav; therefore, this agreement witnesseth that said John T. Morris, surviving executor of William F. Larrabee, doth agree that the said Frank Blacklock, executor of Rinaldo P. Smith, shall prosecute said suit and take all necessary steps for the collection of said claim, and that the said John T. Morris, survhdng executor of William F. Larrabee, doth agree that all the rights of said John T. Morris, executor of the estate of William F. Larrabee, shall be embraced in and fully concluded by the said litigation. And it is further agreed that should recovery be had in said case, one-half of the amount so recovered, without deducting costs, expenses, or counsel fees, shall be paid over by the said Frank Blacklock, executor of Rinaldo P. Smith, to John T. Morris, executor of William F. Larrabee, when said Frank Black-lock, executor, shall receive the same.
    
      “And. this agreement further witnesseth that it is distinctly understood that the said John T. Morris, executor of William F. Larrabee, shall not incur or be in anywise responsible for any expense whatever in connection with said claim or said litigation, but is to receive one-half of the amount for which judgment may' be recovered as aforesaid, without any deduction, except for the executor’s commission as allowed by the orphans’ court.”
    The above agreement was duly approved and authority given the respective parties thereto to execute the same by the orphans’ court of Baltimore city on November 17,1903.
    YI. In the month of August, 1809, there was due and unpaid from the said George J. Stephens to the United States Government delinquent internal-revenue taxes, which had accrued, to wit, from July, 1867, to August, 1869, and for which payment had been demanded prior to October 26, 1869, amounting to the sum of $4,000. In order to satisfy said taxes, together with penalties authorized by law, the collector of internal revenue for that district of Virginia, through his deputy, A. M. Lawson, during the month of December, 1870, distrained the distillery buildings and about 3 acres of land upon which the distillery stood, and advertised said property for sale. Pending said advertisement and prior to the sale, the distillery buildings and their contents, including a quantity of whisky, were destroyed by fire, and in consequence thereof and before the day set for the sale the said collector extended his distraint so as to include the remainder of the said Stephens’s land, amounting in all to about 525 acres, which included the land included by the said Smith, Ellett & Co. deed of trust, and advertised all of said land for sale.
    In pursuance of said advertisement said Deputy Collector Lawson,.oir the 12th day of January, 1871, offered all of the said Stephens’s lands for sale at public auction, and the said Rinaldo P. Smith, being present as a member and representative of the said firm of Smith, Ellett & Co., gave formal notice of the Smith, Ellett & Co. deed of trust lien, which he stated was a prior lien to that of the Government, and protested against the sale of the land except as subject to said lien. Deputy Collector Lawson proceeded with the sale, and the property was bid in for the Government of the United States for the sum of $4,239.50, and one year thereafter, to wit, January 12, 1872, said A. M. Lawson, as deputy collector of internal reveilue, executed a deed of conveyance to the United States Government, the $4,239.50 being the amount of delinquent taxes due, penalties for nonpayment thereof, and costs of distraint and sale.
    YII. The deed executed by Deputy Collector Lawson to the United States is as follows:
    “This indenture made the 12th day of January, in the year of our Lord one thousand eight hundred and seventy-two, between A. M. Lawson, deputy collector for B. B. Botts, collector of the sixth collection district of the State of Virginia, party of the first part, and United States of America, party of the second part, witnesseth:
    “That whereas on the twelfth day of January, in the j^ear of our Lord one thousand eight hundred and seventy-one, the said A. M. Lawson, party of the first part, having first duly advertised, as required by law, the time, terms, and place of sale of certain property hereinafter described, as belonging to George J. Stephens, of the county of Greene, in the district & State aforesaid, for delinquent taxes due to the United States from said George J. Stephens, did offer for sale and proceed to sell said property hereinafter described to the highest bidder, in accordance with law and the terms of the notice heretofore given in that behalf; and whereas the United States of America being duty declared the highest bidder, they having offered the sum of four thousand two hundred and thirty-nine /frir dollars, the highest bid made, such amount so offered, according to terms of sale, to include and cover all taxes anct accrued penalties on account of nonpayment of taxes due from July, A.' D. 1867, to August, A. D. 1869, denominated ‘ delinquent taxes,’ and to also include all interest and expenses of sale in this behalf.
    “ Now, therefore, by virtue of the power in hipr vested by law and in accordance with law, the said A. M. Lawson, party of the first part, having sold as aforesaid, doth hereby convey, with special warranty, all the following described property seized and sold as the property of George J. Stephens aforesaid for delinquent taxes, interest, and xoenalties amounting to the sum of four thousand dollars and the further sum of two hundred thirty-nine dollars cost of sale, making in all the aforesaid sum of four thousand two hundred thirty-nine dollars, the amount bid by the United States.
    
      “ In witness whereof, the said party of the first part has hereunto set his hand and seal, this 12" day of January, in the year of our Lord eighteen hundred and seventy-two.
    “A. M. Lawson, [seal.]
    
      “Deputy Coll. 6 Dist., Virginia.
    
    “Albemarle County, to wit:
    “ I certify that Alexander M. Lawson personally appeared before me in my county aforesaid and acknowledged the above deed to be his act, this 18" Nov., 1873.
    “A. Robt. McKee, J. P.
    
    “ Examined and approved this 18" day of September, 1872.
    “ R. W. Hughes,
    “Z7. S. Dist. Atty., W. D. Va.
    
    . . “ Pr. J. S. States, Asst.
    
    “ In Greene County court, clerk’s office, 25" Nov., 1873; this deed from A. M. Lawson, deputy U. States collector 6" collection district to United States, is filed, and being duly acknowledged by said Lawson is admitted record.
    “ Teste.
    “A copy teste.
    “ Wm. T. Lewis, Olh. “ Z. R. Page, GlerhP
    
    VIII.- On October 6, 1888, the United States Government, by Joseph H. Miller, Commissioner of Internal Revenue, for the sum of $500, and pursuant to a regular sale on June 12, 1888, to one Willie G. Stephens, for said amount, executed the following deed of conveyance:
    “ QUITCLAIM DEED.
    “ Whereas the property hereinafter mentioned and described was, at or on the premises, on the twelfth day of January, eighteen hundred and seventy-one, offered for sale at public auction for internal-revenue faxes due from George J. Stephens;
    “And whereas the said property was then and there declared purchased for the United States by A. M. Lawson, deputy collecter of internal revenue in the sixth district of the State of Virginia;
    “And whereas the same was not redeemed within one year after said sale;
    
      “And whereas, after the expiration of one year from the time of said sale, to wit, on the twelfth day of January, eighteen hundred and seventy-two, the said A. M. Lawson, in his capacity of deputy collector of internal revenue, executed to the United States a deed of the same, and deposited said deed with the then U. S. attorney, R. W. Hughes;
    “And whereas, under the authority conferred upon me by section thirty-two hundred and eight of the Revised Statutes of .the United States, as amended by section three of the act of March 1st, 1879, and by and with the approval of the Secretary of the Treasury, the same was, in a letter addressed to Collector IT. Shepperd under date of May the eighth, eighteen hundred and eighty-eight, by me ordered to be sold; and whereas, after due notice the same was sold at public vendue at or on the premises, in the State of Virginia, on the twelfth day of June, eighteen hundred and eighty-eight, to Miss Willie G. Stephens, for the sum of five hundred dollars, she, the said Willie G. Stephens, being the highest bidder.
    “ Now, therefore, know all men by these presents, that I, Joseph S. Miller, Commissioner of Internal Revenue, with the approval of the Secretary of the Treasury and by virtue of the authority conferred upon me by said section thirty-two hundred and eight of the Revised Statutes of the United States, amended as aforesaid, and in consideration of said sum of five hundred dollars to the United States before the delivery hereof, well and truly paid, the receipt whereof, by certificate of deposit No. 121 for five hundred dollars issued by the Peoples’ National Bank of Lynchburg, under date of May the third, eighteen hundred' and eighty-eight, is hereby acknowledged, have granted, bargained, and sold, and by these presents, in my said official capacity, do give, grant, bargain, sell, convey, and confirm unto the said Miss Willie G. Stephens’s devisees (she having herself died since the sale), viz, Derilus S. Deane, Benjamin C. Sims, M. E. Stephens, R. 1ST. Stephens, and Lelia Stephens, in equal portions subject to the probated last will of Willie G. Stephens, their heirs and assigns, all right, title, and interests of the United States at the time of said last-named sale in the premises sold as aforesaid and described as follows, to wit: ”
    (Here follows the description.)
    “All of said tracts of land are situated in the county of Greene, in the State of Virginia, this description being-identical with that in the above-mentioned deed of Deputy Collector A. M. Lawson to the United States, dated January 12th, 1872. Reference is here made to said deed, which was recorded in the office of Greene County court clerk on the 25th day of November, 1873.
    “ The said devisees of Willie G. Stephens, to wit, Derilus S. Beane, Benjamin C. Sims, M. E. Stephens, R. N. Stephens, Lelia Stephens.
    “ In unequal proportions and subject to the provisions of the last will and testament.of the said Willie G. Stephens, executed on the 12th day of June, 1888, and probated in Greene County court at the June term, 1888.
    “ To have and to hold the same and all the privileges and appurtenances thereto belonging to the said grantees, their heirs and assigns forever, free of any claim on the part of the United States.
    “ In witness whereof I have hereunto set my hand and seal this sixth day of October, one thousand eight hundred and eighty-eight.
    “ [seal.] . Jos. S. Miller,
    “ Commissioner of Internal Revenue.”
    IX. Some time in April, 1889, Reuben S. Thomas, trustee, successor in trust deed of Smith, Ellett & Co.-, having succeeded Wyatt S. Beazley, former trustee, then deceased, advertised the said Stephens’s property for sale under the statutes of Virginia, but was precluded from selling the same by injunction proceedings instituted by the then owners of the property in the Circuit Court of Greene County, Va. It does not appear that any other effort was made by claimant to foreclose his trust deed.
    X. The following instrument was executed by Smith, El-lett & Co. January 25, 1870:
    “ Baltikore, J anuary ®5, '70. .
    
    “ We hereby give our consent to the use of the distillery premises of Geo. J. Stephens, situated on the Harrisonburg turnpike, about four miles from Stannardsville, and which premises contain about three acres of land, more or less, immediately surrounding the distillery building, and which building is contained thereon or comprised therein, by said Geo. J. Stephens, subject to the provisions of the internal rev. law, and that the lien of the United States for taxes and penalties hereafter incurred, shall have priority to the extent of the above-mentioned premises of a certain deed of trust executed by said Geo. J. Stephens for our benefit, and whereof Wyatt S. Beazley is trustee, and that in case of the forfeiture of the said distillery premises, or any part thereof. the title of the same shall rest in the United States, discharged from said deed of trust.
    “ Given under our hands and seals this twenty-fifth day of January, A. D. 1870.
    “ B. P. Smith, [seal.]
    “ FeaNK M. Ellett, [seal.]
    “ Oe Smith, Ellett & Co.
    
      “ Witness:
    “ W. M. Woods.
    “J. Q. H. Smith.”
    
      Mr. Francis M. Gox and Mr. O. 0. Lancaster for the claimant.
    
      Mr. G. F. Kineheloe (with, whom was Mr. Assistant Attorney-General Praclt) for the defendants.
   Booth, J.,

delivered the opion of the court:

Claimant’s right of recovery in this case is predicated upon the priority of the lien of a trust deed duly executed and recorded in his favor by one George J. Stephens, a distiller of Greene County, Va., over the distraint and sale of the same property by the defendants through their proper officer, for the collection of delinquent internal-revenue taxes, it being asserted that the defendants, by distraint and sale of the land of said Stephens, precluded claimant from realizing upon his security.

The act of May 27, 1902, set forth in Finding i, confers upon this court jurisdiction to hear and determine the questions at issue according to the usual rules and practice of the court, commands proper defense for the Government, defines the subject-matter of the claim, waives the statute of limitations, and its evident purpose is to impose upon the court the duty of a full judicial investigation of the entire subject-matter from its inception to its close.

The findings disclose the trust deed aforesaid to have been executed on October 26, 1869. It also appears that the delinquent taxes for which distraint and sale was had, accrued to the defendants from July, 1867, to August, 1869, and at the time of the sale were due and unpaid, previous demand for payment having been made. The act of July 13, 1866 (14 Stat. L., 107), creating the lien in favor of the defendants, uses this language:

“And if any person, bank, association, company, or corporation, liable to pay any tax, shall neglect or refuse to pay tiro same after demand, the amount shall be a lien in fayor of the United States from the time it was due until paid, with the interest, penalties, and costs that may accrue in addition thereto, upon all property and rights to property belonging to such person, bank, association, company, or corporation; and the collector, after demand, may levy, or by warrant may authorize a deputy collector to levy, upon all property and rights to property belonging to such person, bank, association, company, or corporation, or on which the said lien exists, for the payment of the sum due as aforesaid, with interest and penalty for nonpayment, and also of such further sum as shall be sufficient for the fees, costs, and expenses of such levy. And in all cases of sale, as aforesaid, the certificate of such sale shall transfer to the purchaser all right, title, and interest of such delinquent in and to the property sold; ” which from its comprehensive nature precludes all doubt of the intent of Congress to embrace within its operation every species of property subject to ownership. It will be observed that the only condition precedent imposed upon the officer invoking its jurisdiction is the refusal to pay the same after demand. If proper demand for payment has been made, the statute relates back to the time when the taxes became due and the lien of the defendants attaches as of that date to the property belonging to the person from whom the tax was due at the date of the demand. (The United States v. Pacific Railroad et al., 1 Fed. Rep., 97.)

Claimant asserts as a matter of law that the duty of proving priority of defendants’ lien rests upon their ability to establish by competent evidence a strict compliance with the statutory provisions creating the same. This is a proceeding at law to recover the amount mentioned in claimant’s trust deed, founded upon the alleged interference of the defendants in the foreclosure of .the same whereby the security and the debt were lost to claimant. It involves a collateral attack upon the proceedings by which title to the Stephens land became vested in the defendants, and we are unaware of any rule by wliicb the burden of proof is shifted to the defendants to establish their contention in the first instance when assailed by claimant with an assertion of superior rights and title. Claimant must recover, if at all, not upon weakness of defendants’ title, but upon the strength and superiority of his own. The proof, however, does show that demand was made prior to execution of claimant’s trust deed, and the recitals in the deed, which by the statute creating the lien are made frima facie evidence of the facts contained therein, warrant the court in holding that the statute was fully complied with until the contrary is made to appear. We are not to presume that a public officer, charged with the performance of a particular duty, discharges the same contrary to the statute. The contrary presumption obtains, and the duty of overturning it rests upon the party alleging a failure in this particular. Therefore we conclude that in so far as time is concerned the lien of the defendants attached to the property belonging to said Stephens prior to the lien of claimant created by the trust deed of 1869.

The proceeding under which distraint and sale of the Stephens property was made by the defendants is next attacked, claimant contending that defendants elected to pursue a method of enforcement of their lien contrary to the statute in such case provided. That the deed conveying the Stephens premises to the United States vested in them merely his interests therein at the time of sale, and being of record and purporting to convey the fee, absolutely precluded claimant from asserting his alleged prior lien and realizing upon his security by foreclosure of the same.

Under the statutes in force at the time of the distraint and sale of the Stephens premises by the defendants in January, 1871, there were open to them two methods of enforcing their lien. The officer in charge elected to pursue the course prescribed by section 30 of the act of July 13, 1866 (14 Stat. L., 108). He might lawfully have proceeded under section 106 of the act of July 20, 1868 (15 Stat. L., 167). In either event his conduct would have been approvable in law. No positive duty was imposed, as contended by claimant, to proceed under the act.of July 20, 1868. The material portion of that act with which we are now concerned reads as follows:

“ That in any case where there has been a refusal or neglect to pay any tax imposed by the internal-revenue laws, and where it is lawful and has become necessary to seize and sell real estate to satisfy the tax, the Commissioner of Internal Revenue may, if he deems it expedient, direct that a bill' in chancery be filed, in a district or circuit court of the United States, to enforce the lien of the United States. * * * And all persons having liens upon the real estate sought to be subjected to the payment of any tax as aforesaid, or claiming any ownership or interest therein, shall be made parties to such proceeding, and shall be brought into court as provided in other suits in chancery in said courts.”

The language of the statute, “ may, if he deems it expedient,” direct a bill in chancery to be filed, does not of itself import a command, and when taken with reference to the context of the whole act in which it appears vests the officer empowered by law to make the distraint with discretion as to the expediency of invoking-the aid of this statute in enforcing the lien as the circumstances of the case may require. It is clearly directory and does not repeal the act of July 13, 1866, respecting the mode of enforcement of a lien of the United States for delinquent internal-revenue taxes, as prescribed therein. The remedies given by the two sections of the different statutes are concurrent and not conclusive. Alkan v. Bean (8 Bissel, 89).

We can not assent to the proposition that the decision of the court in Mansfield v. Excelsior Company (135 U. S., 326) is hostile to this construction. That was a case where •taxes had accrued against the lessee of a distiller and the property of the same was seized by the collector of internal revenue for taxes due from the distiller to the Government by the summary mode of notice and publication provided for in Revised Statutes, section 3196. The court held that the sale in this instance passed to the purchaser whatever interest the delinquent distiller had at the tiihe, but that the same would not affect the interest in the premises either of the owner of the fee or of a third person having a. lien thereon, even though the Government held a waiver executed by the owner of the fee consenting that the distillery premises might be used by the distiller subject to the provisions of law. That is to say, an execution of the waiver by the owner in fee of the premises consenting to the use of the premises for distillery purposes did not otherwise affect his right or title in the property.

Not, therefore, being called upon to determine the wisdom of the officer’s choice, because of his election, as to which method he will pursue in enforcing his lien under the statutes, we are of the opinion that the proceedings conducted by him were clearly within the statute he elected to invoke and in nowise contrary thereto.

We are also unable to see how the acts of the defendants in the premises prejudiced the rights of the claimant or in any way impoverished his security, which was in the form of a trust deed. The protest made by claimant against the sale of the Stephens land at the time thereof could not and did not add to the weight which would be given to the recording of the trust deed in the county and State where executed. Constructive notice, by compliance with the recording acts of Virginia, notified the purchaser of the existence of the claimant’s lien. The doctrine of caveat em/ptor applied. The deed executed by the purchaser of the premises to the United States, bearing date of January 12, 1872, could not and did not convey any other interest in the premises except that belonging to Stephens at the time of the attachment of their lien. Its efficiency as ah instrument of conveyance was not dependable in law upon the terms used to describe the estate conveyed. If attempt was made to convey that which Stephens did not have, the instrument was a nullity. (Mansfield v. Excelsior Co., supra.)

In the view we take of the case we are not called upon to decide the extent of Stephens’s interest in the property at the time of the attachment of defendants’ lien. Claimant’s lien, being subsequent to that of the defendants, imposed upon him the necessity of protecting his security as against the superior rights of the defendants, ancl the burden of establishing irregularities in the procedure by which defendants acquired title to the Stephens land is imposed upon the claimant. He was not estopped by any act of the officer of the Government from redeeming the premises sold by the defendants. The statute under which the sale was made expressly provided:

“The owners of any real estate sold as aforesaid, their heirs, executors, or administrators, or any person having any interest therein, or a lien thereon, or any person in their behalf, shall be permitted to redeem the land sold as aforesaid, or any particular tract thereof, at any time within one year after the sale thereof, upon payment to the purchaser, or, in case he can not be found in thé county where the land to be redeemed is situate, then to the collector of the district in which the land is situate, for the use of the purchaser, his heirs, or assigns, the amount paid by the said purchaser, and interest thereon at the rate of 20 per centum per annum.”

No matter what terms were used in the certificate of sale to describe the estate sold under this statute, the claimant had ample power and authority to protect his lien by redemption of the premises sold and thus become subrogated to all the rights of the defendants in the same. The defendants were clearly and unequivocally entitled to enforce their lien to the extent of Stephens’s interest in the property at the time it attached under this statute, irrespective of the question of the priority of the same. The sale was made January 12, 1871, and the deed from Collector Lawson to the United States bears date of January 12, 1872, fully in conformity with the above statute of redemption.

It further appears from the findings that claimant made no effort to enforce his lien until some time in the year 1889, after the premises had been sold by the Government to another person, and when they so attempted were prevented by injunction with proceeding, therewith.

In our opinion, claimant not having availed himself of his rights under the law in protecting his lien, which were ample and comprehensive in every respect and which were in nowise unlawfully interfered with by the defendants, we will not impute to them any liability for assertion of their claim in the manner it was asserted and enforced. The petition is therefore dismissed.  