!'ICKJ,ES V. UNITED STATES.
NICKLES .". UNITED STATES.
(C(rcuf,t Court, E. D. Missouri, E. D. Msy 24,1890.)
The statute of limitations begins to run against the rigoht of the purchaser of personal property to sue for breach of warranty of title from the time that his title Is declared invalid by the court of last resort, and not from the time the mandate of such court is filed in the lower court.
STATUTE BEGINS TO RUN.
At Law. This is an action against the government under the act of March 3, 1887, (24 U. S. St. 505,) and it has been submitted for decision on an agreed statement of facts, which obviates the necessity of any special findings, as would otherwise be required by the seventh section of the act. For a proper understanding of the case, it will suffice to say that the agreed statement showll, in substance, that on September 4, 1876, Oliver A. Patton and V. M. C. Silva. who were at the time spectively register and receiver of the United States land-office for tJ:te district of Utah, seized certain lumber for and in behalf of the United States, and advertised it for sale as government property which they had the right, as agents for the government, to so seize, advertise, and ;se11. In point of fact they had no right to seize the lumber in question, as it was at the time private property, belonging to one Daniel H. Wells. On September 16, 1876, Wells brought a suit. in replevin for the prop.erty, and, under the writ issued in that case, it was restored to his (Wells') possession on the 25th of the same month. Three days there.after, September 28, 1876, Patton and Silva sold the property pursuant to advertisement, though it was then in Wells' possession, and the plaintiff in this case, John Nickles, became the purchaser at the price of .$1,016, which he then and there paid to the agents of the government. At the time of the purchase Nickles knew that Wells claimed tobe the absolute owner of the property, but he did not know the manner in which he had acquired title to the same, if that isataH material. Not being able to otherwise obtain possession of the lumber, Nickles, on October 7. 1876, brought a suit in replevin -against Wells in the territorial .court of Utah. He succeeded in that court in obtaining a judgment against Wells for the value of the lumber, but does not appear to have obtained or had the actual possession of the same at any time after hie purchase. Wells appealed from the judgment so rendered against him to the supreme court of the United States, where the judgment of territorial court in Nickles' favor was reversed and annulled on January 16, 1882. Vide 104 U. S. 444. It is sufficient to say that the decision of the supreme court of the United States in Wells v. Nickles con-elusively determined that Wells was the owner of the property in controversy at the time of the sale by Patton and Sil"a, and that Nickles acquired DO title by virtue of that sale. Though this decision was promulgated on January 16, 1882. the mandate does not appear to have .been filed in the territorial court until January 29, 1884. The present
suit was begun by Nickles on January 22, 1890, and there is a pleao! the statute of limitation$ by the United States. Harmon J. Bliss, for plaintiff. Goo. D. Reynolds, U. S. DIst. Atty., for defendant. J .. (after Btating the fact8 as above.) Plaintiff predicates his to recover on the ground that a warranty of title by the United States is to be implied from the sale made by Messrs. Patton and Silva of the lumber in question on the 28th of September, 1876. But even conceding, though without deciding, that the law will imply a warranty of title when the United States, through its agents, sells property in its . possession as its own,andfor its full or fair value, yet in this case there is one'circumstance that renders it doubtful, to say theleast, whether the la'" would imply aWllrranty on .the part of the government. Messrs. Patton and Silva undertook, as it seems, to sell personal property that was neither actually nor constructively in their possession, or in the possession of any agent or otticer of the United States, when the sale was made;atld Nickles knew at the time of hil'l purchase that Wells, who was thenin possession of the property, claimed to be the owner by title adverse to the United States. It may well be doubted whether the law would imply a warranty under such circumstances, though the purchase price was accepted, and covered into the treasury of the United States. I find it unnecessary, however, to decide that question, and would not be understood as expressing any opinion thereon, as, according to the view I have taken, the statute of limitations is a complete bar to the , . suit. . The first section of the act of March 3, 1887, provides "that no suit against the government * * * shall he allowed under this Rct, unless the Bame shall have been brought within six years after the right aCcrued for which the claim is made." Admitting the general rule to be that, where personalprop'erty is sold with ltD implied warranty of title, and possession is delivered by the vendor, an action for a breach of the warranty will not lie until the vendee has been ousted of possession by a paramount title, or until something equivalent to an custer has occurred,(2' Benj. Sales, Amer. Notes, 829, 830,) yet in the present case the vendor did not deliver possession to the vendee. Wells was in possession at the time of the sale, according to the agl'eedstatetnent, and refused to 'surrender possession when Nickles made demand forthe lumber on or about October 7, 1876. Assuming that the sale in question was with an implied warranty of title by the United States, it is the opinion of the court that such warranty was broken, so as to give a right of action, when Wells refused to recognize Nickles' title and right of possession; thatis to say, as early as October 7, 1876. But even if that view is erroneous, and it be trtie,11f.! contended, that NiCkles could not maintain an aotion for a breach6fwarranty, until he'had instituted legal proceedingsagainst Wells to recover possession of the property, and had been defeated, yetWappearsthat he was so defeated by'the decision of the supreme couno! the United states on the 16th of January, 1882,
n:ZcKMANV. MACON COUNTY;
more than eight years before· ,this suit was filed. From that time, at least, Nickles had a right of action for breach of warranty, if he ever had. I can attach no importance to the fact that the mandate was not filed in the territorial court until January 29; 1884. The agreed statement concedes that the decision of the supreme court was of such character as to extinguish Nickles' title, and such was obviomly the effect of that decision, which has been made a part of the agreed case. Nickles had the right to abandon the further prosecution of the suit against Wells, if it was ever incumbent on him to bring such a suit, as soon as the judgment of the supreme court was announced. The statute of !imitations in my judgment began to run against him certainly from the time his title to the property was pronounced worthless by the court ofIast resort, and its operation was not· stayed merely by delay in sending down the manda.te. If, as the plaintiff claims, he was not informed at the time of his purchase ofthestiptllation entered into on July 10, 1875, between, Patton and Wells, the former acting as agent for the United States, by virtue ofwhi<lh, as the supreme court of the United States holds, Wells acquired a good title to the lumber in dispute" then it would seem that a moral obligation rests on the government to refund the purchase money, which congress might properly recognize. For reasons stated, however, the demand is not a legal claim egainst the United t1;le can now,enforl;le. Judgment for defendant. .1,-. - . .
, HIcK!iAN V.MACON CoUNTY.
(Circuit Oourt; E. D.MiBBouri, N. D.
AC'l'I01'r 011' JUDGMENT.
It fsno to asuft on a'judgment that the time Wlthin whlob an execution could be 1511UOO on the judgment has not expired.
At Law. This was a suit in two counts, the fitst count being on coupons oicertRin county bonds, and the second count on a judgment recovered by the plaintiff against the defendant in the United States circuit C()urt for the western district of Missouri, in the year 1883, before Macon county was attached to the eastern judicial district of Missouri. Defendant disputed the right to recover on the judgment; for the reason that an execution might yet be'sued out on the judgment in the western district, and also for the reason that, under the fourth section of the act of February 28, 1887, (24 St. U. S. 425,) the case might be transferred from the western district to this, the eastern, district of Missouri. Thoa. K. Skinker. foi:' plaintiff. Robt. G. M''IkheU. for defendant..
that a suit on a judgmept maybe maintained in th.e' same court in which
J., (Mally, after stating tlte facttt as above.)
It has belm held