United States v. Lee Kaufman v. Same

Decision Date04 December 1882
Citation106 U.S. 196,27 L.Ed. 171,1 S.Ct. 240
PartiesUNITED STATES v. LEE. KAUFMAN and another v. SAME
CourtU.S. Supreme Court

Solicitor General Phillips and W. Willoughby, for plaintiff in error.

S. F. Beach, Leigh R. Paige, Wm. J. Robertson, Francis L. Smith, and W. D. Shipman, for defendant in error.


These are two writs of error to the same judgment, one prosecuted by the United States, eo nomine, and the other by the attorney general of the United States in the names of Frederick Kaufman and Richard. P. Strong, the defendants against whom judgment was rendered in the circuit court. The action was originally commenced in the circuit court for the county of Alexandria, in the state of Virginia, by the present defendant in error, against Kaufman and Strong and a great number of others, in the names of the real parties under which the pleadings to recover possession of a parcel of land of about 1,100 acres, known as the Arlington estate. It was an action of ejectment in the form prescribed by the statutes of Virginia, under which the pleadings are in the names of the real parties plaintiff and defendant. As soon as the declaration was filed in that court the case was removed into the circuit court of the United States by writ of certiorari, where all the subsequent proceedings took place. It was tried by a jury, and during the progress of the trial an order was made, at the request of the plaintiff, dismissing the suit as to all of the defendants except Kaufman and Strong. Against each of these a judgment was rendered for separate parcels of the land in controversy, namely, against Kaufman for about 200 acres of it, constituting the national cemetery and included within its walls, and against Strong for the remainder of the tract, except 17 acres in the possession of Maria Syphax. As the United States was not a party to the suit below, and, while defending the action by its proper law officers, expressly declined to submit itself as a defendant to the jurisdiction of the court, there may exist some doubt whether it has a right to prosecute the writ of error in its own name; but as the judgment against Kaufman and Strong is here on their writ of error, and as under that writ all the questions are raised which can be raised under the other, their writ being prosecuted in the interest of the United States, and argued here by the solicitor general, the point is immaterial, and the question has not been mooted. The first step taken in the case, after it came into the circuit court of the United States, was the filing in the clerk's office of that court of the following paper by the attorney general:

'George W. C. Lee v. Frederick Kaufman, R. P. Strong, and others. (In ejectment.)

'And now comes the attorney general of the United States and suggests to the court and gives it to understand and be informed (appearing only for the purpose of this motion) that the property in controversy in this suit has been for more than 10 years and now is held, occupied, and possessed by the United States, through its officers and agents, charged in behalf of the government of the United States with the control of the property, and who are in the actual possession thereof, as public property of the United States, for public uses, in the exercise of their sovereign and constitutional powers, as a military station, and as a national cemetery established for the burial of deceased soldiers and sailors, and known and designated as the 'Arlington Cemetery,' and for the uses and purposes set forth in the certificate of sale, a copy of which, as stated and prepared by the plaintiff, and which is a true copy thereof, is annexed hereto and filed herewith, under claim of title, as appears by the said certificate of sale, and which was executed, delivered, and recorded as therein appears.

'Wherefore, without submitting the rights of the government of the United States to the jurisdiction of the court, but respectfully insisting that the court has no jurisdiction of the subject in controversy, he moves that the declaration in said suit be set aside, and all the proceedings be stayed and dismissed, and for such other order as may be proper in the premises.

'CHAS. DEVENS, Atty. Gen. U. S.'

The plaintiff demurred to this suggestion, and, on hearing, the demurrer was sustained. The case was thereupon tried before a jury on the general issue pleaded by defendants Kaufman and Strong, in the course of which the question raised by this suggestion of the attorney general was again presented to the court by prayers for instruction, which were rejected and exceptions taken.

The plaintiff offered evidence establishing title in himself by the will of his grandfather, George Washington Parke Curtis, who devised the Arlington estate to his daughter, the wife of Gen. Robert E. Lee, for life, and after her death to the plaintiff. This, with the long possession under that title, made a prima facie right of recovery in plaintiff. The title relied on by defendants was a tax-sale certificate made by the commissioners appointed under the act of congress of June 7, 1862, 'for the collection of direct taxes in the insurrectionary districts within the United States,' as amended by the act of February 6, 1863. At this sale the land was bid in by said commissioners for the United States, and a certificate of that fact was given by these commissioners and introduced on the trial as evidence by defendants. If this sale was a valid sale, and the certificate conveyed a valid title, then the title of plaintiff was thereby divested, and he could not recover. If the proceedings evidenced by the tax sale did not transfer the title of the property to the United States, then it remained in the plaintiff, and, so far as the question of title was concerned, his recovery was a rightful one.

We have then two questions presented to the court and jury below, and the same questions arise in this court on the record: (1) Could any action be maintained against the defendants for the possession of the land in controversy under the circumstances of the relation of that possession to the United States, however clear the legal right to that possession might be in plaintiff? (2) If such an action could be maintained, was the prima facie title of plaintiff divested by the tax sale and the certificate given by the commissioners? It is believed that no division of opinion exists among the members of this court on the proposition that the rulings of law under which the latter question was submitted by the court to the jury was sound, and that the jury were authorized to find, as they evidently did find, that the tax certificate and the sale which it recited did not divest the plaintiff of his title to the property.

For this reason we will consider first the assignment of errors on that subject. No substantial objection is seen on the face of the certificate to its validity, and none has been seriously urged. It was admitted in evidence by the court, and, unless impeached by extrinsic evidence offered by the plaintiff, it defeated his title. When this tax sale was made the act of February 6, 1863, which amended the original act of June 7, 1862, by substituting a new section 7 for that of the former, was in force. It declares that the certificate of the commissioners given to the purchaser at such sale 'shall be received in all courts and places as prima facie evidence of the regularity and validity of said sale, and of the title of the said purchaser or purchasers under the same;' and that it 'shall only be affected as evidence of the regularity and validity of sale by establishing the fact that said property was not subject to taxes, or that the taxes had been paid previous to sale, or that the property had been redeemed according to the provisions of this act.' It is in reference to the clause which permits the certificate to be impeached by showing that the taxes had been paid previous to sale that the plaintiff in the present case introduced evidence. This court has in a series of cases established the proposition that where the commissioners refused to receive such taxes, their action in thus preventing payment was the equivalent of payment in its effect upon the certificate of sale. Bennett v. Hunter, 9 Wall. 326; Tacey v. Irwin, 18 Wall. 549; Atwood v. Weems, 99 U. S. 183. There are exceptions to the ruling of the court on the admission of evidence, and instructions to the jury given and refused on this subject, which are made the foundation of several assignments of error.

All that is necessary to be considered in this matter is presented in the instructions granted and refused. The point in issue is fairly raised by the following, given at the request of plaintiff, and against the objection of defendants:

'If the jury believe from the evidence that the commissioners, prior to January 11, 1864, established, announced, and uniformly followed a general rule, under which they refused to receive on property which had been advertised for sale from any one but the owner, or a party in interest, in person, when offered, the amount chargeable upon said property by virtue of the said acts of congress, then said rule dispensed with the necessity of a tender, and in the absence of proof to the contrary the law presumes that said amount would have been paid, and the court instructs the jury that, upon such a state of facts, the sale of the property in controversy, made on the eleventh day of January, 1864, was unauthorized, and conferred no title on the purchaser;' and by instructions six and seven, given at the request of defendants, in the following language:

'6. The burden of proof is upon the plaintiff to establish the fact that the tax commissioners, before the sale of this property, made a general rule not to receive taxes except from the owner in person after the advertisement and before the sale; and if the jury believe that only two such instances occurred before the sale of this...

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