US SUPREME COURT DECISIONS

1. The Act of March 3, 1863, entitled

"An act to prevent and punish frauds upon the revenue, to provide for the more certain and speedy collection of claims in favor of the United States, and for other purposes,"

authorizing the Solicitor of the Treasury, "with the approval of the Secretary of the Treasury," to sell at public sale, after three months' advertisement, certain lands acquired by the United States for debt &c., qualifies and limits the powers of the said solicitor, given to him by the Act of May 29, 1830, creating his office and prescribing his duties, and authorizing him to sell such lands at private sale, and pro tanto repeals it.

2. The former act being thus repealed, and the latter one only in force, the approval of the Secretary of the Treasury is an indispensable condition to the validity of a sale made under the act by the solicitor.

3. The purchaser is not bound to accept a deed unless there be written evidence of this approval.

4. The approval of the secretary is not a fact to be presumed because the deed of the solicitor is the deed of an official person, nor even because it recites that the sale was made in pursuance of the Act of 1862.

An Act of May 29th, 1830, [Footnote 1] authorized "the appointment of a Solicitor of the Treasury," prescribed his duties &c., and enacted, among other things, that:

"The said solicitor shall have charge of all lands and other property which have been or shall be assigned, set off, or conveyed to the United States in payment of debts . . . and to sell and dispose of lands assigned or set off to the United States in payment of debts."

An Act of March 3, 1863, entitled

"An act to prevent and punish frauds on the revenue, to provide for the more certain and speedy collection of claims in favor of the United States, and for other purposes, [Footnote 2]"

in its ninth section enacts

"That for the purpose of realizing as much as may properly be done, from unproductive lands and other property of the United States, acquired under judicial proceedings or otherwise, in the

Page 86 U. S. 599

collection of debts, the Solicitor of the Treasury be and he is hereby authorized, with the approval of the Secretary of the Treasury, to rent for a period not exceeding three years or sell any such lands or other property at public sale after advertising the time, place, and conditions of such sale for three months preceding the same in some newspaper published in the vicinity thereof in such manner and upon such terms as may in his judgment be most advantageous to the public interests."

These acts being in force, the Solicitor of the Treasury put up for sale at auction certain land with houses upon it in New Orleans which a debtor of the United States had conveyed to it in payment of debt. The land was bid off by George Jonas for $30,000. A deed was tendered to him. The deed purported to be made between:

"E. C. Banfield, Solicitor of the Treasury of the United States, duly appointed and qualified as such, and herein acting in such capacity for and on behalf of the United States of America, party hereto of the first part, and George Jonas, of the City of New Orleans, State of Louisiana, party hereto of the second part."

It properly recited that the land had been transferred and set over to the United States in payment of a debt due to it. It further recited that

"under the provisions of section nine of an Act of the Congress of the United States of America entitled 'An act to prevent and punish frauds upon the revenue, to provide for the more certain and speedy collection of claims in favor of the United States, and for other purposes,' approved March 3, 1863,"

and after due and legal notice on certain days and in certain newspapers (all particularly specified), the land had been exposed to sale at public auction, at the St. Charles Auction Exchange, and that Jonas had bought it.

It concluded:

"In witness whereof, the said E. C. Banfield, Solicitor of the Treasury, as aforesaid, hath hereunto set his hand and caused his seal of office to be affixed the day and year first above mentioned. "

Page 86 U. S. 600

And E. C. Banfield, Solicitor of the Treasury, signed it. But there was nothing in, on, or about, with or apart from the deed to show that the sale was made with the approval of the Secretary of the Treasury. This deed Jonas refused to accept. The land was thereupon again put up for sale "on account and at the risk of the said George Jonas," and sold for $21,500, and the United States sued Jonas in the court below for $8,500, the difference between the sums bid at the sales.

The point of the controversy was whether the consent and approval of the Secretary of the Treasury is necessary to authorize the sale and conveyance of property acquired by the United States under judicial proceedings, or otherwise, in the collection of debts.

The government contended, and asked the court so to charge, that the law did not require

"a tender to defendant, as a part of the proof of title, of the written approval or consent of the Secretary of the Treasury to said sale or transfer of said property, in any form, in order to convey a complete title."

This the court declined to do, and charged

"that unless the deed of conveyance of the property executed by the solicitor, tendered by the United States to Jonas, at the time when it was tendered to him, bore upon its face, or by means of papers connected therewith, written proof, certain and patent to the defendant, that the Secretary of the Treasury had, in accordance with section nine of the Act of March 3, 1863, approved and authorized the sale of the property at auction by the Solicitor of the Treasury, then that no such deed was tendered as would convey to him a complete and undoubted title,"

and that he "could not be compelled to pay the loss in price resulting from the second sale." The United States excepted, and judgment having gone for the defendant the government brought the case here.

The question, therefore, for decision was whether the approval of the Secretary of the Treasury was necessary to the sale or transfer of the property in question, and if so, whether it was incumbent on the plaintiffs to produce this chanrobles.com-red

Page 86 U. S. 601

approval when the deed was tendered, in order to put the defendant in fault so as to subject him to suit. chanrobles.com-red

Page 86 U. S. 602