Nickles v. United States

42 F. 757, 1890 U.S. App. LEXIS 2237

• Court: U.S. Circuit Court for the District of Eastern Missouri
• Decided: May 24, 1890
• Status: Published

Opinion

Thayer, J.,

(after stating the facts as above.') Plaintiff predicates his right to recover on the ground that a warranty of title by the United States is to be implied from the sale niade 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, and for its full or fair value, yet in this case there is one circumstance that renders it doubtful, to say the least, whether the law would imply a warranty on the part of the government. Messrs. Patton and Silva undertook, as it seems, to sell personal jrroperty that was neither actually nor constructively in their possession, or in the possession of any agent or officer of the United States, when the sale was made; and Nickles knew at the time of his purchase that Wells, who was then in 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 be allowed under this act, unless the same 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 personal property is sold with an 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 ouster 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 agreed statement, and refused to surrender possession when Nickles made demand for the 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 Nickles1 title and right of possession: that is to say, as early as October 7, 1876. But even if that view is erroneous, and it be true, as contended, that Nickles could not maintain an action for a breach of warranty, until he had instituted legal proceedings against Wells to recover possession of the property, and had been defeated, yet it appears that he was so defeated by the decision of the supreme court of the United States on the 16th of January, 1882, more than eight years before this suit was filed. From that time, at least, Niekles had a right of action for breach of warrant}'', if ho 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 Niekles’ title, and such was obviously the effect of that decision, which has been made a part of the agreed case. Niekles 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 limitations in my judgment began to run against him certainly from tbe time his title to the property was pronounced worthless by the court of last resort, and its operation was not stayed merely by delay in sending down the mandate. If, as the plaintiff claims, he was not informed at the time of bis purchase of tbe stipulation entered into on July 10, 1875, between Patton and Wells, the former acting as agent for the United States, by virtue of which, 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 against the United States which the courts can now enforce. Judgment for defendant.