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that a board of inquiry was convened by order of Gen. Lane, consisting of four officers of the army, for the purpose of examining into the matter, a majority of whom reported that the tobacco was not at the time of the sale the property of the United States, and they awarded the possession and ownership thereof to Domerg, and that the consideration paid by the claimant should be returned to him, which was accordingly done. Subsequently, upon its being reported to Gen. Lane that the last buyer of the tobacco refused to give up the key of the store-house, an officer and a file of men forcibly seized and delivered the tobacco to Domerq.
This must be considered as the act of the United States. It stands on the same ground with the sale of the tobacco. The United States, through their officers, were in the ac. tual possession of the supreme civil and military authority. With such a responsibility upon him, the commanding officer must, ex necessitate, act with promptness and decision. In a state of war, where the ordinary tribunals are silent, a nation must expect to incur the risk of pecuniary liability for the acts of its officers in a foreign country, whose course of conduct must be determined by what seems best under existing circumstances. It would be unreasonable in the extreme to require of mili tary officers, carrying on war abroad, placed in difficult and trying positions, either the experience or the legal skill that would enable them to appreciate the subtle distinctions which at home, and in a time of peace, are applied to the ascertainment of legal rights. It is a necessary consequence of a state of war that the orders of the general can admit neither of argument nor resistance. It is the nation that carries on the war, and not the individual officer; and it follows that the nation must be liable for the acts of such agents as it sees fit to employ in the prosecution of its object.
Our conclusion is, that if the allegations in the petition are proved, the claimant is entitled to some damages from the United States. Whether the claimant is entitled to recover any sum beyond the consideration paid by him, by reason of his liability to subsequent vendees, is a question which can more conveniently be examined when all the evidence relating to damages is laid before us. At present, we shall merely order testimony to be taken.
SAMUEL M. PUCKETT v. THE UNITED STATES. In sales by U. States marshal of lands taken in execution at the suit of
the U. States there is no implied warranty of title. On failure of the title, the purchaser has no claim to recover the purchase money of the Ú. States. The opinion of the Court was delivered by
Gilchrist, C.J. - This claim is, substantially, an action against the United States for money had and received. It appears from the petition that the United States marshal for the district of Mississippi sold certain fractional sections of land situated in Neshoba county, in Mississippi, as the property of one Wily P. Harris, to one John E. Richardson, for the sum of $ 10,689.41. The claimant, and one Gooch, became sureties for Richardson for the payment of the purchase-money, and, subsequently, the claimant became a partner with Richardson in the purchase, and signed promissory notes for the same, payable to the United States. Suits were instituted upon the notes, and judgment obtained thereon, against the makers for the amount due, including interest and costs. The claimant paid the sum of $ 5000, which passed into the treasury of the United States, and, subsequent to the payment of the money, he ascertained that the lands sold as the property of Harris in fact belonged to other persons, and that Harris never had any title to them, and, consequently, no title could pass by virtue of the sale by the United States. The sale was made without any notice of any defect in the title, and under the assurance by the marshal that he would make a title at a future time; which, however, has not been done.
The claimant alleges that the consideration of the notes has totally failed, and that he is entitled to recover of the United States the sum of $ 5000, with interest.
The assurance by the marshal that he would make a title to the land at a future day cannot be the foundation of any right in the claimant. Whatever evidence his declarations may furnish of his personal liability in a suit against himself, they cannot bind the United States. If he steps out of his official duty, and does what the law has given him no authority to do, he may make himself personally responsible, and the injured party must look to him for redress. He is the mere minister of the law to. execute the order of the court, and a due discharge of his duty does not require more than that he should give to purchasers a fair opportunity of examining and informing themselves of the nature and condition of the property offered for sale. The Monte Allegre, 9 Wheat. 645. 'Nor upon a judicial sale, which we presume this to have been, is there an implied warranty of title. Neither the marshal nor the auctioneer, while acting in the scope of their authority, can be considered as warranting the property sold, nor can the marshal do any act that shall expressly or impliedly bind any one by warranty. Ib. 645. It is on the same principle that it is held in South Carolina that there is no implied warranty in a sale of land made by the ordinary for partition, and the purchaser who has been evicted by title paramount cannot recover the purchase-money back from the ordinary, though it still remains in his hands undisturbed. Evans v. Dendy, 2 Speers, 9.
So it has often been held that there is no implied war. ranty in a sheriff's sale. Yates v. Bond, 2 McCord, 382 ; Davis v. Murray, 2 Rep. Con. Ct. 143; Bashore v. Whistler, 3 Watts, 490. In South Carolina, where one purchased land at a sheriff's sale, to which the defendant in the execution had no title, the sheriff may compel bim by action to pay the purchase-money without having first tendered the sheriff's titles. Moore v. Akin, 2 Hill, S. C. 403.
As there is no implication of a warranty, the question arises whether, upon the principle which regulates the action of assumpsit for money had and received, the claimant can recover of the United States the consideration he has paid.
It is provided by the 1st section of the act of May 7, 1800, (2 St. at Large, 61,) that when the United States shall have received seisin and possession of lands delivered in satisfaction of a judgment, it shall be lawful for the marshal of the district “to expose the same to sale at public auction, and to execute a grant thereof to the highest bidder on receiving payment of the full purchasemoney; which grant so made shall vest in such purchaser all the right, estate, and the interest of the United States in and to such lands or other real estate." Although there is no express statement to that effect, we can make no other inference from the petition than that the lands mentioned were sold by the marshal by virtue of the authority vested in him by this act. If such be the case, he can do no more than to convey to the purchaser snch right and interest as the United States possessed, and therefore the case is like that where a person releases to another all his
right and interest in a tract of land, and receives the consideration therefor. If, in such a case, the grantee can recover of the grantor the consideration he has paid for the release, on the ground that the consideration has failed, then this claimant has a right to recover of the United States.
It has been repeatedly held that where money is paid for land conveyed by deed of release and quit-claim, it cannot be recovered back, though the title be wholly defective, unless there be fraud on the part of the vendor. Gates v. Winslow, 1 Mass. 65; Wallis v. Wallis, 4 Mass. 135; Emerson v. Washington County, 9 Greenl. 94. In the case of Soper v. Stevens, 2 Shep. 133, it was held that where a note, given in consideration of a quit-claim deed of land, and where there is no fraud, has been paid by the grantee, the money cannot be recovered back on the eviction of the grantee by an older and better title. In all such cases as have been cited, the money is considered as having been paid in consideration of the conveyance of the interest the grantor has in the premises, such as it may be, and not in consideration that the grantor will convey a good title to the land. The grantee buys only what the grantor has to sell, and where, without fraud, he sells only his interest, the consideration cannot be said to have failed, so as to give a right of action to the grantee. The United States are entitled to the benefit of this principle, and, so far as the facts appear in the petition, there is no more reason for permitting the claimant to recover than there would be for rendering a judgment for the plaintiff upon a similar state of facts in an ordinary suit at law. Our opinion is, that
the case stated the claimant is not entitled to recover, and that there is no principle of law that would authorize us to order testimony to be taken.
Abstract of other Recent Decisions of the Court of Claims.
NICHOLSON v. THE UNITED STATES.
Officer, EmployÉ. — An act of congress, passed August 26, 1852, provided for the election of a public printer for each house of congress, and fixed the rate of compensation to be paid for printing. On the first day of March, 1854, the claimant was elected public printer of the house of representatives.
Held, he was an officer” and employé” of the legis, lative department of the government," and, as such, entitled to the increased compensation provided by the joint resolve of 20th July, 1854, for the officers, clerks, messengers, and other employés of that department.
SPENCE ET AL. v. United States. INSUFFICIENT PROTEST. — Where by mistake, the weight of goods imported, was overstated in the invoice, but the mistake was discovered before the duties were paid, and the correct weight was shown by the weigher's return, but the collector insisted upon payment of duty upon the invoice weight, which was paid by claimant.
Held, claimant had a good cause of action against the government in this court, for the amount of duties overpaid, although his notice and protest were not sufficient to enable him to maintain an action against the collector.
LINDSAY V. THE UNITED STATES.
JURISDICTION. Case WITHIN DISCRETION OF Congress. In a case wherein the claimant has no legal cause of action against the United States, founded upon a law of congress, or upon a regulation of an executive department, or upon a contract express or implied with the government of the United States, this court cannot recommend specific action by congress.
The court will, however, in a case which shows an equitable claim, report the facts, and a bill to be acted on by congress as they may deem proper.
Thus, if a person has bought in good faith, and for its full value as an estate in fee simple, certain land reserved to the friendly Creek Indians, which the Indians and their heirs had the right to occupy forever, but not to dispose of, this course will be taken.
District Court of the United States for the District of Mas
sachusetts. Special Term. January, 1856. BENJAMIN R. Gifford, LIBELLANT, v. LEMUEL Kollock. Where a minor shipped for a whaling voyage, under the direction of his
father, who furnished his outfit of clothing, the libel was rightly brought in the father's name.