LEWIS V. WITHERS.
165
(Circuit Court, S. D. Mississippi. November 25,1800.) 'l'AXA'l'ION-ABBESSMENT-ALTERATION OF RETURN.
The unauthorized alteration by assessor of tax-payer'B return for asse.sment, made according to original survey, to a description in new survey, wherebyacr&age of lots returned are decreased, and lots are added to cover balance, and assessed to unknown, without notice, and a payment on lots as returned, with oifer to pay all taxes due, invalidates sale of such added lots.
(SyUabu8 1YlI the Court.)
At Law. Bake:r « ReJMa'U, and Nugent&: Me Willie, {or plaintiff. Calhoun, Green « Carson, for defendant. HILL, J. This is an action of ejectment, brought by the plaintiff against the defendant in the circuit court of Wilkinson county, and removed into this court, to recover the land described in the declaration, to which the defeu9.ant interposed the general issue. By written stipulation, a jury trial is waived, and the questions of fact, as well as the questions of law, are submitted to the court. The 80 acres of land for which this action is brought have been owned by the deferJdant for many years, and are included in lots 3 and 4 of section 22, township 3, range 5 west, in Wilkinson county, as shown by the tract-book of original entries, and were so entered by defendant's grantor in 1833 and 1835. The whole section was subdivided into lots 1, 2, 3, and 4. Lot No.1 has never belonged to defendant, but lot No.2 is, and long has been, owned by him. Lots 2, 3, and 4 were estimated to contain 262 acres, and were usually assessed by that description, and as containing that number of acres, except that in 1883 the number of acres was estimated at 260, and were given in by the agent of the dej{mdant to the assessor for 1887 by the description of lot 2, 62 acres, lot 3, 80 acres, lot 4, 120 acres, making, together, 262 acres. There is marked in brackets on the line of lot No.3 the figures 40 and letter A, and on the line of lot No. 4 the figures 80, letter A, but by whom placed there, or when, does not appear. The proof is that it is not in the handwriting of defendant, or his agent, and must have been by the assessor's deputy, or some one else. Some time in 1848 or 1849, the surveyor general was directed to resection the lands in Wilkinson county, which was done, and a map thereof filed in the land-office in Jackson, and by which, lots 2, 3, and 4, above mentioned, were described as lots 2, 3, 4, 5, and 6, and by which the land in controversy was described as lots 5 and 6, each eontaining 40 acres, and being contained in lots 3 and 4, as described in the entry tract-book. In 1884, a copy of this map was procured, and placed in the office of the chancery clerk of said county, and, as the proof shows, has since been regarded as the official map of the county, for the guidance of the assessors, and others, but no order of the board of supervisors has ever been made adopting it, or requiling assessmenta
'Rli:fORTElh VQl.
44.
for taxes t'J be made of the land in the county. according to the designations 9ild descriptions UPOll it. 'T).le first time any change was made in the description of the land in controversy was by the assessors in 1887, whencitwas described as lots 6, each containing 40 acrel;!. Of this change, neither the defendant nor any agent of his had .. ,Lots :Nos. 2, 3, alld. 4' were assessed to, defendant, and lots 5 and 6 toari unknown owner. , L<>ts2, 3, and 4 were valued at $9 per flcre; a11d lots 9 and ,6at$1per acre. ,Detlmdantpaid the tax in due tIme, by his agent, on lots 2.3,,:and 4. Other lands belonging to defendant were not put on the assessment roll or tax-book, but through the neglect or oversight of whom does not appear. But, the amount of the taxes for that year being so much less than usual, Mr. Koontz, the agent of defendatlt, 8upposingthere must be some mistake about it, requested Mr. Carson, defendant's attorney, to go to, Wilkinson county and· look into the matter, and to ascertain the taxes due, if any, and pay the same,' and for which he [took the money with him, and ascertained the ta.xes que on other lands of the defendant, which had not been assessed to ,him, and paid the same. ' On the examination of the tax-books by Mr. l\liller, the sheriff and. tax collector's deputy, who was in charge of that busipess, and to whom Mr. Carson was referred by the sheriff as knowing more about it than himself, it was found that the taxes had been paid on lots 2,3, and 4, the number of acres being described as 182, which Carson ascertained ,on the examination of the tax receipt, and called Miller's attention toit. Miller got the map in the office from which the aSSessor had made his description in making out his assessment roll, and found tha,tjots2, 3,and 4 contained 182 acres. Carson asked l],im how he accoupted .for the decrease in the acreage. He replied that Withers had been paying lor years on land in the Mississippi river, but added, referl'iQg to the maps, that "these are the latest veys, and are [as be supposed) correct." Carson looked at the map and saw 5 and 6 thereon, imd asked who they belonged to. Miller replied:"! do not think they belong to Withers; I do not know. I do not think they were ever assessed to Mr. Withers." Carson, not being satisfied, and anxious to pay the taxes on all of Withers' land, examined his title-deeds, with the assistance of the circuit clerk, who was familiar with the records. to see if lots 5 and 6 belonged to Withers, never having heard of lots 5 and 6, and could not find them, and had no knowledge of any change in the maps, or description of the land. As all the deeds described the land as lots Nos. 2, 3, and 4, and by which they had before been assessed and known, he came to the conclusion that they did not belong t<;> Withers, but was then prepared and anxious to pay tbe taxes, and never .learned that they were the lands of Withers until this suit was brought, nor did defendant, or any of his agents. r,rbe taxes not being paid,the lands,were sold, and purchased by . tiff for between four and five dollars; and, not being redeemed within prescribed by. law, the. sheriff's deed to the land under the sale was delivered to the plaiI1tiff, and is his only muniment of title. These are substantially the facts, as shown by the proof, so far as it is
lH7
necessary to a determination of the questions involved, which are whether or not the plaintiff, under these facts, is entitled to recover this land, with its rental value, from the defendant, and which must determined according to the statutes oithe state, as construed by the sapreme court of the state. It is very clear to my mind that the non-payment of the tax was alone caused by the change made in the description of the land by the assessor, and without the knowledge or consent of the dpfendant, or any agent of his, and for which he is not in any way responsible; nor do 1 believe it makes any difference that the assessment roll, with the change, was reported to and confirmed by the board of supervisors. The defendant had a right to rely upon, the description giveriby his agent, and that by which it had always before that time been known and assessed for taxes. Plaintiff relies upon section 516, Code 1880, which provides a form of receipt for taxes, and which shall be the only evidence of the payment of taxes due, and the decision of the supreme court of the state holding that this is the only evidence of such payment, unless lost or des'troyed. But this is 110t a question of the payment of the tax, but of the corre:ctness of the assessment,-the change in the description having been made without notice to. the defendant or his agent, -and as to whether 01' not this change without notice is an excuse for the non-payment of the tax by the defendant., I am of opinion thitt this question has been settled in favor of the defendant by the supreme court of thi's state in the case of Richter v. Beaumont, 7 South. Rep. 3p7. The facts in that case were that, in the ancient division of the town of Ocean Springs, a lot of ground in the return for assessment was described as lot No.6, and which was afterwards givell; a different description on a new map of the town, which was recognized by the citizens generally, and by the officials of the town; and, it being assessed for taxes undel"and by the description on the new map, and the taxes not being paid, the same was sold for the non-payment of the tax, and conveyed by the tax collector.. The court held that, if the own'er did not know of the'new map and the change in the description of the ground, but had given it in as lot or part of lot No.6 to the assessor, he would not be affected by the sale and conveyance. This decision is so just that I presume no court will hold to the contrary under a similar state of facts, and which, in my opinion, are the facts in the present case. To deprive tlie de-: fendant of the title to this valuable tract of land under the facts stated, to say nothing about the few dollars paid,would certainly be a hardship and wrong, never contemplated by the legislature. Besides, the statute provides ample indemnity to the plaintiff by refunding to him all the money paid by him with 25 per cent. damages. and 10 per cent. per annum interest thereon, until paid, with a lien on the land ment is made. The result is that the finding of the facts must be iIi favor Of the defendant, and judgment that when the amount paid, with damages and interests, are refunded, 'he go hence with hia costs.
168
FEDERAL REr0RTER,
vol. 44.
UNITED STATES V. YOUNG
et al.
(Oirouit OOtLrt, E. D. New York. November 18, '1890.) 1. EVIDIINOE-GOVERNMENT DOOUMENTg-CERTIFIED COPIES.
ThOUlth certilied copies of the books and accounts of the treasury department are by statute made evidence in favor of the government in actions altainst alleged delinquents, they are not conclusive, and, if a reply is made thereto, the case is to be deci1ied on all the evidence.
9.
INDIAN AGENTS-AoTION ON BOND.
In an action on an Indian agent's bond for failure to account for property alleged to have come into his bands, t,he government is not required to show that the agent has converted the property or proceeds thereof to his own use, but it may recover whatever loss it has sustained by his failure to account as required by his bond. Where the government has lost nothing by such failure to account, it can recover nominal damages only.
8. 4.
SAME.
6.
The burden of prOVing the amount of its loss is on the government. 5.. SAME-EvIDENOE. The fact that certain articles have been omitted from t,heagent's quarterly report is only prlmkL!acl.e proof that they have been lost to the government, and may be overcome by proof that they Were at the agency at that time. SAME.
SAME-BURDEN OF PROOF.
An Indian ap;ent who has given bond to faithfully discharge the duties of his oflice is not responsible for the negligence, error, or breaches of duty of doctors and clerks furnished by the government, unless by reasonable diligence he could have prevented such negligence, errors, or breaches of duty. Where the government fails to furnish the agent a clerk, he is responsible for the performance of the clerical duties of the agency in the best way practicable for him alone.
7.
At Law. Jease Johnaon and John Oakey, for the United States. AndrewJ.Todd and George G. Reynolds, for defendants. LACOMBE, Circuit Judge, (charging jury.) The defendant Young having been appointed an Indian agent, in accordance with the law, executed a bond, together with the other two defendants, that he would, while in office, carefully discharge the duties thereof, and faithfully expend all public moneys, and honestly account without fraud or delay for the same, and all public property which should or might come into his hands. This suit is upon that bond. The government claims that he did not carefully discharge thp. duties of his office, nor faithfully expend all public moneys; that he did not honestly account without fraud or delay for the same, and for all public property which came into his hands; but that, on the contrary, as such agent he did receive certain moneys and other property belonging to the United States, amounting in value to thQ sum of $1,486.10, which he did not faithfully expend and honestly account for without fraud or delay, or pay over to the United States, and which said sum still remains unpaid and unaccounted for. That is the claim in this suit. Now you have heard the phraseology of the bond, which is that he should carefully discharge the duties of his office, and faithfully expend the public moneys, and honestly account, etc. He does not discharge his whole duty