amounts of said promissory notes, including interest and costs of said. suits. Petitioner says that he paid the amount of one of the said judgments and cost in full, and all costs on the other two judgments, and perhaps a small portion of the debt on one of the other judgments. Petitioner says that the whole amount so paid by him was about the sum of five thousand dollars, and that the same (after paying costs of suits) passed into the treasury of the United States, as your petitioner is informed and believes; and that subsequent to the payment of the money as herein stated, he (petitioner) ascertained that the lands sold as the property of Wiley P. Harris was in fact the property of other persons, and that Wiley P. Harris never had title to said lands, and consequently no title could pass by virtue of the sale by the United States. That the sale was made without any notice of defect of title, and under the assurance by the United States marshal that he would make title at a future day. But so it is. The United States marshal wholly failed to comply with the conditions of sale in executing title to the land herein described at the time of the sale thereof, or at any other time thereafter, as your petitioner avers and believes. Therefore, this petitioner says that the consideration of the promissory notes herein described has totally failed, and he says that he believes he is entitled to and demands relief-that is to say, a recovery of and from the United States for the sum of five thousand dollars, with interest from May, 1840, and the cost of this proceeding. SAMUEL M. PUCKETT, Claimant. Opinion of the Court. The opinion of the Court was delivered by Chief Justice Gilchrist. 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 Wiley 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 $5,000, 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 $5,000, 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 Wheaton, 645.) Nor upon a judicial sale, which we presume this to have been, is there any 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.-Ibid., 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 vs. Dendy, 2 Speers, 9. So it has often been held that there is no implied warranty in a sheriff's sale.-Yates vs. Bond, 2 McCord, 382; Davis vs. Murray, 2 Rep. Con. Ct., 143; Bashore vs. 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 him by action to pay the purchase-money without having first tendered the sheriff's titles.-Moore vs. 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. Al 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 purchase-money; which grant so made shall vest in such purchaser all the right, estate, and interest of the United States in and to such lands or other real estate." though 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 If such be the case, he can do no more than to convey to the purchaser such 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 act. 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 has been 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 vender.-Gates vs. Winslow, 1 Mass., 65; Wallis vs. Wallis, 4 Mass., 135; Emerson vs. Washington county, 9 Greenl., 94. In the case of Soper vs. 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. 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 upon 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. The 34th CONGRESS, HO. OF REPRESENTATIVES. 1st Session. REPORT C. C. JOHN P. McELDERRY. MAY 16, 1856.-Reported from the Court of Claims. Committed to a Committee of the Whole House, and ordered to be printed. JOHN P. McELDERRY vs. THE UNITED STATES. To the honorable the Senate and House of Representatives of the United States: The following papers in this case are respectfully submitted: 1. The petition of the claimant. 2. The additional petition. 3. Brief of the claimant. 4. Opinion of the court. By order of the court. In testimony whereof, I have hereunto set my hand and affixed the [L. S.] seal of said court, at Washington, on the day and year above written. COURT OF CLAIMS, SAMUEL H. HUNTINGTON, Washington, March 5, 1856. JOHN P. McELDERRY vs. THE UNITED STATES. To the honorable the Judges of the Court of Claims: Your petitioner claims compensation for his services as a clerk in the Bureau of Yards and Docks during the months of May and June, eighteen hundred and fifty-one, at the rate of $800 per annum$133 33, and interest thereon at the rate of six per cent. per annum from the first of July, 1851, until paid. The facts and circumstances upon which this claimant relies in support of his claim, and also the action of the department thereon, appear in the following petition and correspondence submitted to Congress, to wit: "The undersigned, your petitioner, respectfully represents: That by act of Congress approved 3d March, 1851, an additional clerk was authorized to the Bureau of Yards and Docks of the Navy Department, to take effect on the first day of July thereafter; that your petitioner was informed on the first day of May, 1851, that the said clerkship would be conferred upon him, and he' therefore offered to enter at once upon such duties as were intended to be assigned to him on said first of July; and as the services of your petitioner could be and were made useful to the department, he accordingly entered upon and continued faithfully to perform the duties assigned to him for two months, trusting that the department would find means to compensate him therefor; but in this reasonable expectation your petitioner learns, as the annexed papers will more fully explain, that his only redress is to submit his claim to the justice of Congress; and he therefore prays that he may be allowed $133 33, being two months' compensation for said services, at the rate of eight hundred dollars per annum. "And your petitioner, as in duty bound, will ever pray. "JOHN P. McELDERRY." BUREAU OF YARDS AND DOCKS, SIR: I have the honor to state that for two months previous to the date of the appointment which I now hold as a clerk in this bureau— viz: May and June, 1851-I performed the same duties that have subsequently been assigned to my desk, and for such services I respectfully ask to be allowed for that period the same rate of compensation which I now receive. I am fully aware that the execution of those duties may be considered as voluntary on my part; yet as the chief clerk of the bureau informed me that I could be usefully employed at once, and being at that time desirous of employment, I entered upon the duties in the hope that the department would compensate me therefor. Trusting that this application will meet with the favorable consideration of the department, I remain, with great respect, your obedient servant, Commodore JOSEPH SMITH, JOHN P. McELDERRY. Chief of Bureau of Yards and Docks. Copy of the endorsement of Commodore Smith. Respectfully submitted to the Secretary of the Navy, with the remark that Mr. McElderry was informed that no appropriation had been made for the desk he would occupy till after July 1st. His services were required, however, and he entered upon duty, as he states, accordingly. I would suggest that the department, if it should think proper, could allow from the contingent fund of the department the compensation asked for by Mr. McElderry. MARCH 26, 1852. J. S. |