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having special knowledge of its own workmanship, should be held to indemnify its vendee against latent defects, arising from the mode of construction, and which the latter, as the company well knew, could not, by any inspection, discover for himself.

For the reasons stated, we are of opinion that the court did not err in the law of the case, and the judgment must be affirmed.

(110 U. S. 146)

UNITED STATES ». LAWTON.

(January 21, 1884.)

SALE OF LAND FOR DIRECT Tax-PURCHASE BY UNITED STATES-APPLICATION

OF OWNER FOR SURPLUS.

Land subject to a direct tax was sold for its non-payment, and was bought in for

the United States for the sum of $1,100, under section 7 of the act of June 7, 1862, c. 98, as amended by the act of February 6, 1863, c. 21, (12 St. 640,) the tax, penalty, interest, and costs being $170.50. No money was paid. The United States took possession of the land and leased it, and afterwards sold

all but 50 acres for $130, under the act of June 8, 1872, c. 337, (17 St. 330.) The land was not redeemed. Application by its owner was made to the secretary of the treasury for the $929.50 surplus, and, no action being taken thereon, he sued in the court of claims to recover that sum. Held, that he was entitled to

recover it. Whether section 12 of the act of June 7, 1862, c. 98, (12 St. 422,) in regard to the

disposition of one-half of the proceeds of the subsequent leases and sales of land struck off to the United States at a sale for the non-payment of the tax,

applies to the land in this case, quære. No question as to the disposition of such proceeds can effect the right of the claim

ant in this case to the $929.50. The rulings in U. 8. v. Taylor, 104 U. S. 216, applied to this case.

Appeal from the Court of Claims.
Sol. Gen. Phillips and John S. Blair, for appellant.
Wm. E. Earle and J. J. Darlington, for appellee.

BLATCHFORD, J. In this case the appellee recovered a judgment in the court of claims against the United States for $929.50. That court found the following facts: In 1827 James Stoney, of South Carolina, died, leaving a will, which was duly proved, and contained the following provision:

"The other equal part or share of my personal property, charged and chargeable with the payment of half of the said annuity to my beloved wife, Elizabeth, together with all the lands I possess on the south side of Broad creek, on the island of Hilton Head, I give and devise unto such person or persons as I shall hereafter appoint my executor or executors, to and to the use of them or him, my executor or executors, their heirs, executors, and assigns, upon the trust nevertheless, and to and for the intent and purpose hereinafter expressed and declared of and concerning the saine; that is to say, upon trust for the sole benefit of my beloved daughter, Martha S. Barksdale, for and during her natural life, free from the debts, contracts, and engagements of any husband to whom she may be allied, or the claims of his creditors; and upon the death of my said daughter, Martha S. Barksdale, it is my will, in tention, and desire that the trusteeship above created in my executor or executors over the said part of my real estate and personal property shall immediately dissolve and expire; and if my said daughter, Martha S. Barksdale, shall have any lawful issue living at the time of her death, then I give and devise the said part of my real and personal property to such issue, him, her, or them, and their heirs forever.”

A tract of land known as the Hill Place, in St. Luke's parish, South Carolina, was a part of the estate so devised. Martha S. Barksdale, named in the will, entered into possession*of the Hill Place, under the devise, and continued in possession until dispossessed, in consequence of the tax sale hereinafter mentioned. After the making of the will she became the lawful wife of Joseph A. Lawton. The appellee is her lawful and only living issue. In November, 1862, the direct tax commissioners of the United States assessed a direct tax on the Hill Place, amounting to $88, and in December, 1873, (a mistake, probably, for 1863,) it was sold for non-payment of the tax. The umount of the tax, penalty, interest, and costs, was $170.50. The property was “struck off for the United States by the tax comInissioners," for the sum of $1,100, and a tax certificate, which is now on file in the office of the commissioner of internal revenue, was issued therefor, but no money was paid, “the tax commissioners having bid in the property for the United States." The board of tax commissioners took possession of the land in the name of the United States, and from time to time leased the same. The amount realized from the leasing does not appear. The United States are still in possession of 50 acres. The remainder was sold at public sale in December, 1875, for $130, under the provisions of the act of June 8, 1872, c. 337, (17 St. 330.) No application under that act and the acts supplementary thereto, for redemption of the property, was ever made. It does not appear that the appellee ezer parted with his interest in the remainder of the tract, except as dispossessed by the tax sale, or that he ever assigned his right to receive the surplus remaining from the purchase money. Mrs. Lawton died in April, 1880. It does not appear that during her life-time any demand was made upon the treasury for the surplus. In May, 1882, the appellee applied to the secretary of treasury for any surplus proceeds of the sale which

might be in the treasury. No action was taken thereon, and nothing has been paid to the appellee on such application.

* We think that this case is governed by the rulings of this court in U. S. v. Taylor, 104 U. S. 216. In that case the land sold for the non-payment of the tax was sold to a person who paid the purchase money to the United States, and the surplus proceeds were in the treasury. It was held that the provision of section 36 of the act of August 5, 1861, c. 46, (12 St. 292,) in regard to the surplus of the proceeds of sale, was not repealed by anything in section 12 or any other section of the act of June 7, 1862, c. 98, (12 St. 422.) It was

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also held that the court of claims had jurisdiction of a suit for such proceeds when the application to the secretary of the treasury and the bringing of the suit therefor, both of them, occurred more than six years after the sale for the non-payment of the tax.

The present case differs from the Taylor Case only in this, that the land was in this case bought in by the tax commissioners for the United States, and no money was paid on the sale. It was so bought in for a sum which exceeded by $929.50 the tax, penalty, interest, and costs. This was done under the authority of section 7 of the act of June 7, 1862, as amended by the act of February 6, 1863, c. 21, (12 St. 640, which authorized the commissioners to bid off for the United States land sold for the tax, at a sum not exceeding two-thirds of its assessed value, unless some person should bid a higher sum, and also provided that at a sale any land which might be selected, under the direction of the president, for government use, might be bid in by the commissioners, under the direction of the president, for and struck off to the United States. The land in the present case having been “struck off for” and “bid in” for the United States at the sum of $1,100, we are of opinion that the surplus of that sum, beyond the $170.50 tax, penalty, interest, and costs, must be regarded as being in the treasury of the United States, under the provisions of section 36 of the act of 1861, for the use of the owner, in like manner as if it were the surplus of purchase money received by the United States from a third person on a sale of the land to such person*for the non-payment of the tax. It was unnecessary to go through any form of paying money out of the treasury to any officer and then paying it in again to be held for the owner of the land. But, so far as such owner is concerned, the surplus money is set aside as his as fully as if it had come from a third person. If a third person had bid $1,099 in this case, there would have been a surplus of $928.50 paid into the treasury and held for the owner. It can make no difference that the United States acquired the property by bidding one dollar more. To withhold the surplus from the owner would be to violate the fifth amendment to the constitution, and deprive him of his property without due process of law or take his property for public use without just compensation. If he affirms the propriety of selling or taking more than enough of his land to pay the tax and penalty and interest and costs, and applies for the surplus money, he must receive at least that.

The appellants rely very much on the provisions of section 12 of the act of 1862, which require that one-half of the proceeds of subsequent leases and sales of land struck off to the United States at a sale for the non-payment of the tax, shall be, under certain circumstances, paid to the state in which the land lies; and contend that those provisions apply to the land in this case bought in under the act of 1863. The view urged is that if the United States pays to the appellee the $929,50, and to the state one-half of the proceeds of subsequent leases and sales of the land, they will pay out more than the surplus of the proceeds of the original sale. It is not necessary to determine whether section 12 of the act of 1862 applies to the land in this case, even if it would be proper to do so in a case where the state is not represented, as a claimant to the proceeds of leases and sales. No question as to the disposition of such proceeds can properly affect the right of the appellee to this surplus money. His claim is to the surplus money arising on the original sale and not to any proceeds of any dealing with the land by the United States afterwards.

The application made to the secretary of the treasury for the surplus not having been complied with, the appellee was entitled to bring this suit, as on an implied contract to pay over*the surplus. It not having been paid to the trustees under the will, or to the life-tenant, the appellee, as remainder-man, is clearly entitled to it.

The judgment of the court of claims is affirmed.

(110 U. S. 97) HILTON and another . MERRITT, Collector, eto., of the Port of New

York.

(Filed January 14, 1884.)

CUSTOMS DUTIES — APPRAISAL - RIGHT OF APPEAL DENIED — DUE PROCESS OF

LAW-AMENDED REPORT.

Under the statutes of the United States, the appraisal of imported merchandise by

the custom officers is final, and cannot be reviewed in action at law, unless im

peached on the ground of fraud. The denial of the right to bring an action for the recovery of duties paid under an

excessive valuation does not deprive the importer of his property without due

process of law. The general appraiser is at liberty to amend his report after it has been presented

to the collector. Bartlett v. Kane, 16 How. 263, approved.

In Error to the Circuit Court of the United States for the Southern District of New York.

This was a suit brought by the plaintiffs in error, who were plaintiffs in the circuit court, to recover the sum of $1,037.40, an alleged excess of duties exacted by the defendant as collector of customs at the port of New York, on two cases of kid gloves imported by plaintiffs from Paris, France, in the steamer Mosel, in June, 1878. The complaint alleged that the plaintiffs made due protest at the time of paying such excessive duties, and made due and timely appeal to the secretary of the treasury, who affirmed the decision of defendant by which said duties were exacted. The answer denied that the duties exacted were excessive, and averred that they were according to the

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rule imposed by law. The case was tried by a jury, who, after hearing the evidence, returned, by direction of the court, a verdict for defendant, upon which judgment for costs was entered in his favor. To reverse that judgment this writ of error is prosecuted.

H. E. Tremaine, for plaintiffs in error. Sol. Gen. Phillips, for defendant in error. * Woods, J. It appears from the bill of exceptions found in the record that the withdrawal entry of the packages on which the duty occasioning this controversy arose was made October 23, 1878. The local appraiser made and reported to the collector his appraisement of the goods. The importers being dissatisfied therewith, demanded a reappraisement according to law, which was allowed, and a merchant appraiser appointed to be associated with one of the general appraisers. The merchant appraiser made an appraisement of the standard gloves at 42 francs per dozen, and of the invoice at 16,613.10 francs, which corresponded with the importer's invoice and entered valuation of the merchandise in question. The general appraiser made a report of his appraisement on the same day, in which he put the value of the standard gloves at 52 francs, and the total valuation at 20,282.85 francs. Upon receiving these and other appraisements, the collector.wrote to the general appraiser a letter dated October 10, 1878, in which he said:

“I have received the reports on the reappraisement of gloves entered by Wilmerding, Hoguet & Co., per S. S. Lessing; Iselin, Neeser & Co., per S. S. Pereire; and A. T. Stewart & Co., per S. S. Mosel, together with a mass of testimony taken at the hearing, and a special report from yourself, giving in extenso your reasons for differing from the merchant appraisers in these cases. The merchant appraisers sustain the invoices or entered value, while you advance the value in two of the cases upwards of 20 per cent. The law requires the collector, in cases of difference, to decide between the merchant and general appraiser. I find that it has been the almost universal practice for the collector, under these circumstances, to adopt the higher valuation. Unwilling to accept this easy method of disposing of troublesome questions, and believing it to be the duty of a government officer, while carefully protecting the revenue, to see that no injustice is done to the merchant, I have personally devoted much time and attention to the examination of the evidence presented.

“It is a matter of surprise that three discreet' merchants should differ so widely from the general appraiser. With no disposition to evade the responsibility placed upon me by the law, I consider that the interests involved and the vexatious delays in reaching a satisfactory conclusion require that an effort should be made to fix a value which will remain unchallenged. I have therefore to suggest that you re-examine the evidence, in the hope that a result may be reached which shall not, on the one hand, make it appear that the merchants of New York cannot be relied upon to give a fair hearing and correct judgment on a question of value, or, on the other hand, that the government seeks and enforces, by its might, that which is unjust. I would call your attention to the conflicting evidence as to the similarity of the glove marketed in London and New York. I would also call your attention to the amount to be added per button to represent the true value. I find it difficult, from the evidence, to fix this amount at five francs per dozen. The three reports are returned herewith."

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