UNITED STATES

v.

LAWTON

HTt?- Justice Blatchfoed delivered the opinion of the court. After reciting the above stated facts he continued:

We think that this case is governed by the rulings of this court in United States v. Taylor, 104 U. S. 216. In that case the land sold for the non-payment of the tax was sold to a person who paid the purchase money to the United States, and the surplus proceeds were in the treasury. It was held that the provision of section 36 of the act of August 5th, 1861, ch. 46,12 Stat. 292, in regard to the surplus of the proceeds of sale, was not repealed by anything in section 12 or any other section of the act of June 7th, 1862, ch. 98,12 Stat. 422. It was also held that the Court of Claims had jurisdiction of a suit for such proceeds when the application to the Secretary of the Treasury and the bringing of the suit therefor both of them occurred more than six years after the sale for the non-payment of the tax.

The present case differs from the Taylor case only in this, that the land was in this case bought in by the tax commissioners for the United States, and no money was paid on the sale. ' It was so bought in'for a sum which exceeded by $929.50 the tax, penalty, interest and costs. This was done under the authority, of section 7 of the act of June 7th, 1862, as amended by the act of February 6th, 1863, ch. 21, 12 Stat. 640, which authorized the commissioners to bid off for the United States land sold for the tax at a sum not exceeding two-thirds of its assessed value, unless some person -should bid a higher sum, and also provided that at a sale.any land which might be selected, under the direction of the President, for government use, might be bid in by the commissioners, under the direction of the President, for, and struck off to, the United States. The land in the present case having been “ struck off for,” and “ bid in ” for, the United States at the sum of $1,100, we are of opinion that the surplus of that sum, beyond the $170.50 tax, penalty, interest and costs, must be regarded as being in the treasury of the United States, under the provisions of section 36 of the act of 1861, for the use of the owner, in like manner as if it were the surplus of purchase money received by the United States from a third person on a sale of the land to such person for the non-payment of the tax. It was unnecessary to go through any form of paying money out of the treasury to any officer and then paying it in again to be held for the owner of the land. But, so far as such owner is concerned, the surplus money is set aside as his as fully as if it had come from a third person. If a third person had bid $1,099 in this case, there would have been a surplus of $928.50 paid into the treasury, and held for the owner. It can make no difference that the United States acquired the property by bidding $1 more. To withhold the surplus from the owner would be to violate the Fifth Amendment to the Constitution and to deprive him of his property without due process of law, or to take his property for public use without just compensation. If he . affirms the propriety of selling or taking more than enough of his land to pay the tax and penalty and interest and costs, and applies for the surplus money, he must receive at least that.

The appellants rely very much on the provisions of section 12 of the act of 1862, which require that one-half of the proceeds of subsequent leases and sales of land struck off to the United States at a sale for the non-payment of the tax, shall be, under certain circumstances, paid to the State in which the land lies; and contend that those provisions apply to the land in this case bought in under the act of 1863. The view urged is, that if the United States pays to the appellee the $929.50, and to the State one-half of the proceeds of subsequent leases and sales of the land,- they will pay out more-than the surplus of the proceeds of the original sale. It is not necessary to determine whether section 12 of the act of 1862 applies to the land in this case, even if it would be proper to do so in a case where the State is not represented as a claimant to the proceeds of leases and sales. No question as to the disposition of such proceeds can properly affect the right of the appellee to this surplus money. His claim is to the surplus money arising on the original sale, and not to any proceeds of any dealing with’ the land by the United States afterwards.

The application made to the Secretary of the Treasury for the surplus not having been complied with, the appellee was - entitled to bring this suit, as on an implied contract to pay over the surplus. It not having been paid to the trustees under the will, or to the life-tenant, the appellee, as remainderman, is clearly entitled to it.

The judgment of the Court of Claims is affirmed.