Allen v. United States

announced tbe following findings of fact framed for tbe purposes, of appeal, tbe court being equally divided upon tbe validity of tbe defence set up.

1. On tbe 1st day of November, 1861, tbe claimants, Street & Allen, sold and delivered to Major L. 0. Easton, a quartermaster in tbe United States Army, and for tbe use of tbe United States, 273 wagons, at tbe price of $146 25 for each wagonand also 1,312J yoke of oxen, at tbe price of $55 per yoke for sucb oxen, amounting in tbe aggregate to tbe sum of $112,113 75. And for tbis sum, Major Easton issued to tbe claimants vouchers in due and proper form, being tbe vouchers appended to and fprming part of tbe petition. We also find that Major Easton bad full authority to make tbe purchase, and that tbe property was of tbe value agreed to be paid for tbe same ; and that it was used by tbe United States, and their title and possession to tbe same has not been in any way disputed or disturbed; and that tbe sum of $71,491 25 still remains unpaid upon tbe said vouchers, tbe balance having been paid by tbe United States to tbe claimants.

2. We find further that on tbe 25th and 26th days of January, A. D. 1861, Russell, Majors So Waddell executed and delivered to tbe claimants two several deeds of assignment, in trust for their creditors therein designated, which deeds of assignment are here referred to and made part of tbis statement of facts, together with tbe schedules accompanying tbe said deeds of assignment respectively, tbe said Russell, Majors & Waddell then and there being wholly insolvent. And we find that said deeds together convey all tbe property of Russell, Majors So Waddell in trust for tbe benefit of their creditors.

3. We further find that tbe amount claimed in tbis suit is for tbe price of so much of tbe property sold and delivered to tbe United States, as already stated, as bad belonged to Russell, Majors So Waddell, and was conveyed to tbe claimants, in trust for creditors, by tbe deeds of assignment already recited.

4. We find that at tbe date of tbe assignments heretofore set forth by Russell, Majors So Waddell to tbe claimants, in trust *346for creditors, tbe said Bussell, Majors & Waddell were indebted to the United States in the sum of $870,000, or thereabouts, for certain Indian trust bonds belonging to the United States, which the said Bussell, Majors & Waddell, through the collusion and connivance of certain officers of the United States in charge and custody of said bonds, illegally procured, and negotiated and sold the same, and applied the proceeds thereof to their own use. And the amount thereof, with interest thereon from the 1st of October, 1860, is still due and owing from Bus-sell, Majors & Waddell to the United States. But the United States have never prosecuted such indebtedness to judgment, and the same is still an unliquidated demand, disputed and denied by Bussell, Majors & Waddell.

5. That the claimants received, under the deeds of assignment recited, property of the assignors over and above that the price of which is claimed in this suit, amounting to $150,000. The claimants have not proved what disposition has been made of the same, nor have they shown what are or have been the expenses of the execution of the trust; nor have they shown that they have complied with the laws of Missouri relating to assignments made in trust for the benefit of creditors; nor that they have given good and sufficient security for the faithful execution and performance of the said trust.

And upon the facts so found the court ruled as matter of law—

1st. That the United States are entitled to priority of payment out of the proceeds of the property assigned to claimants by Bussell, Majors & Waddell under the trust deeds recited.

2d. That the money in suit, being the proceeds of such property, is not in law subject to any prior charge or lien in the hands of claimants.

3d. That the United States may, under and by virtue of the act of Congress of March 3, 1863, section 5, entitled “An act to amend ‘An act to establish a court for the investigation of claims against the United States,’ approved February 24; 1855,” set off so much of the indebtedness of Bussell, Majors & Wad-dell to them, as shall be equal to the amount claimed and proved in this suit by Allen & Street, the claimants. And the claimants’ petition is dismissed.

concurring:

I acquiesce in a judgment pro forma against the claimants as the only means for rescuing the case from the dead-lock of a divided court, and of bringing the important questions which it involves to the final decision of the Supreme Court.

I assent to the findings of fact as facts which have properly and improperly appeared in the case, and I agree to the first and second conclusions of law as abstract legal principles; but I regard the second, third, and fourth findings insufficient to constitute a defence; the fifth as wholly irrelevant under the pleadings, and the first and second conclusions of law as inapplicable to the facts of this case. As to the third and final conclusion of law, I think it error.

Under the very comprehensive language of the act reconstituting this court, which confers upon it jurisdiction of off-set and counter-claim against claimants, it may be that the defendants might have sought affirmative relief which the court might be able to grant. But the defendants have asked no affirmative relief, and have contented themselves with pleading in bar to a suit at law what might be at most the subject of a cross-bill in equity.

dissenting:

The statutes cited give the United States no lien on the assets of an insolvent estate, but only a priority of payment, and they confine that to the assets- uin the hands of” the assignees, and make them personally liable for the debt to the United States. The statutes, therefore, cannot be used to prevent the assets from coming “ to the hands ” of the assignees.

Then the Act of March 3d, 1863, reconstructing this court, extends its jurisdiction in u set-off” by adding others to the kinds of claim that may be used in u set-off” at the common law. But it does not alter or relax the rule at law and in equity that the claim must be in the same right, for in express terms it confines the claims that the United States may set-off, to claims u on the part of the C-overnment against any person making claim against the Government in said court and Bussell, Majors & Waddell are not the claimants in this case either in form or substance, and the property sold and for which this claim is brought did not belong to them when sold) and they could *348maintain no action for its price, either in law or equity. And the evidence shows that the assignees were in possession of the property when they sold it, and therefore they may sue for and recover its price, on their title by possession, without proof of their title as assignees, exactly as an executor may, for goods sold by him when in his possession, sue for and recover the price on his title by possession without proof of his title as executor.

For these reasons I think the claimants are entitled to judgment.