1. The local land officers are not required to meet and jointly
consider the proof of settlement and cultivation offered by
claimants under the preemption laws.
2. In his accounts with the government, a receiver of public
moneys in a land district charged himself with money which he, or,
during his absence, his authorized agents, had received as the
purchase price of public lands entered pursuant to the preemption
laws. The United States, on his failure to pay over the money,
brought suit on his official bond.
Held that neither he
nor his sureties can defeat a recovery by setting up irregularities
in the proceedings by which the entry of the lands was allowed.
This was an action brought against George F. Potter and his
sureties on his official bond as receiver of public moneys in the
Pembina Land District in the Territory of Dakota. The bond bears
date Aug. 3, 1870, and its condition is that he shall "truly and
faithfully execute and discharge all the duties of his said office
according to law." The declaration alleges that he was appointed
such receiver for four years beginning June 7, 1870; that after the
execution and delivery of the bond and prior to June 30, 1874,
there legally came into his hands as such receiver the sum of
$8,564.77, which he refused and neglected to account for, or to pay
over to the United States.
Page 107 U. S. 127
Only the sureties on the bond answered. The defense set up in
their answer and relied on was as follows:
"That from and after said September 30, 1873, there never was
any register at the land office at Pembina; that there were no
legal sales of land or receipts of moneys at said land office for
any purpose during all the time from said 30th of September, 1873,
to the end of the time that said Potter held the office of receiver
of said land office."
The parties waived a jury and submitted the issues of fact as
well as of law to the court. Upon the trial of the case, as shown
by the bill of exceptions, the United States offered in evidence
certified copies of the accounts rendered by Potter for four
quarters, to-wit, the quarters ending respectively September 30 and
December 31, 1873, and March 31 and June 30, 1874, which showed a
balance against him of $8,564.77, which he had not accounted for or
paid over.
By way of defense, testimony was offered which, as stated by the
bill of exceptions, "proved" that one Brashear, from the summer of
1871 until the expiration of the term of office of Potter, was
register of the land office at Pembina; that from and after
September 23, 1873, Brashear was not present at said land office,
but on the day last named "left Pembina and said land office and
never returned, but continued to hold said office of register
during Potter's term of office," which expired in June, 1874;
"that before leaving the office, he signed a large number of
printed blanks, covering all the various business of the register
of said land office, and left them with one William R. Goodfellow,
who was a clerk in the custom house in said Pembina, and had
nothing to do with said land office except that he was authorized
by said Brashear to act for him in his absence, and that all the
business of said land office, so far as the said register was
concerned, was done by said Goodfellow with the blanks so signed by
said register as aforesaid."
The bill of exceptions further showed that testimony was offered
which proved
"that the said receiver, George F. Potter, left said Pembina and
said land office on the 8th or 9th of April, 1874, and did not
return until the last of June or the beginning of July, 1874, and
that no one was in charge of said land office while said receiver
was gone except said Goodfellow; that on the return of said Potter,
he received no money from said Goodfellow on account of said
office, and that he did
Page 107 U. S. 128
receive from his son the sum of two or three hundred dollars,
and no more; that Goodfellow took in, during the absence of said
Potter, some $1,400 of money belonging to said land office, and
paid the same over to said son of said Potter, from whom it was all
stolen, except the two or three hundred dollars which was paid over
by him to said Potter."
Upon this evidence, the counsel for the sureties on the bond of
Potter contended that "they were not liable for any moneys received
at said land office for any business done therein in the absence of
either the register or receiver."
he court decided against the contention of the defendants, and
rendered judgment against them for the sum of $6,406.30, which
included moneys received by Potter after as well as before
September 23, 1873. To this ruling and judgment of the court the
defendant excepted. The purpose of the writ of error is to obtain a
review in this Court of the question raised by this exception.
MR. JUSTICE WOODS delivered the opinion of the Court, and after
stating the case as above, proceeded as follows:
The answer of the defendants does not allege that the moneys for
which the court rendered judgment against them were received by
Potter after September 23, 1873, and during the absence of
Brashear, the register. Neither does the bill of exceptions profess
to state all the evidence in regard to the absence of Brashear and
Potter from their offices respectively. Passing by these defects in
the record, we shall consider the question presented by the
exception of defendants.
Their first contention is that they are not responsible for any
moneys received by Potter, the receiver, during the time that
Brashear, the register, was absent from the land office. The ground
of this contention is as follows: the record shows that during
Potter's term of office, all sales of land were either by
preemption or commutation of homesteads. The argument of plaintiffs
in error applies only to preemption sales. Sec. 2259 of the Revised
Statutes of the United States prescribes what persons are entitled
to preemption and upon what terms the right of preemption is
Page 107 U. S. 129
accorded to the settler upon the public lands. Sec. 2263
declares that
"Prior to any entries being made under and by virtue of the
provisions of sec. 2259, proof of the settlement and improvements
thereby required shall be made to the satisfaction of the register
and receiver of the land district in which such lands lie,"
&c. The plaintiff in error contends that these officers
constitute a joint tribunal, and that there can be no business done
without the presence and action of both. And as Brashear, the
register, was absent from September 23, 1873, to the close of
Potter's term, there could be no legal preemptions during that
time, and that all moneys paid for preemptions before the
conditions prescribed by law had been complied with were not
payments made to the United States, but unauthorized and unofficial
payments made to the receiver, for which his sureties were not
liable.
In our judgment, this contention has no ground to stand on.
There is no expression in the statute which requires the register
and receiver to sit at the same time and concurrently pass upon the
sufficiency of the proof of settlement and improvement by
preemptors. If the proof is submitted to the register on one day
and he is satisfied, there is nothing in the statute which implies
that it may not be lawfully submitted at some subsequent day to the
receiver for his approval. The oath of the preemptor, which is part
of the proof required by law, may be taken before either the
register or receiver. Sec. 2262;
Lytle v.
State, 9 How. 314. They are nowhere required to
meet and jointly consider the sufficiency of the proof offered. If
both are satisfied, that is all the law requires.
It does not appear in the record that the proof by preemptors of
the settlement and improvement of the lands for which money was
received by Potter during the absence of Brashear had not been made
to his satisfaction before he left the land district. If such proof
had been made to the satisfaction of Brashear, all that was
necessary to complete the right of the preemptor was the approval
of Potter, which was effectually expressed by his receipt of the
money.
What the law requires is that the conditions requisite to a
preemption entry should be shown to have been performed to
Page 107 U. S. 130
the satisfaction of both officers. As it does not appear in the
record that the proof was not made to the satisfaction of both
officers, it must be presumed that the money received by Potter in
the absence of Brashear was justly due the United States, and was
received by him in his official capacity. We find nothing either in
the cases or statutes cited by counsel for plaintiffs in error
which tends to establish a different construction of the law.
But if it be conceded that the statute required the register and
receiver to pass concurrently upon the proof of the settlement and
improvement before lands could be entered by a preemption, we are,
nevertheless, of opinion that the plaintiffs in error are
responsible for the moneys received by Potter.
The moneys were received by him as public moneys, for he charged
himself with them in his accounts with the government. They were
paid as public moneys by preemptors as a consideration for title to
portions of the public domain. If any objection could be raised to
the transfer of title to the preemptors, it could be made by the
United States only. But the United States makes no objection. On
the contrary, all objection is waived by the bringing of this suit
by the government to recover the moneys paid by the preemptors for
their lands. These moneys are therefore public moneys. They belong
neither to Potter not the preemptors, and must consequently be the
property of the United States. It was therefore the duty of Potter,
as receiver, to account for and pay to the United States the moneys
so received, and it does not lie in the mouths of the sureties on
his official bond to raise an objection to the payment of the
moneys to him which he could not raise, and which is not raised by
the preemptors or by the United States. Their responsibility for
the money so received is therefore clear.
In support of this view the case of
King v. United
States, 99 U. S. 229, is in
point. That was a suit brought against one Chase and his sureties,
on the bond given by Chase as collector of internal revenue, to
recover taxes collected by him, and never accounted for or paid
over. The facts were that on June 1, 1868, the Toledo, Wabash and
Western Railroad Company was indebted to the United States in a
large sum for the five percent
Page 107 U. S. 131
tax for interest paid on its first mortgage bonds. The tax, was,
on the day named, paid to Chase by the treasurer of the railroad
company. At the time of the payment, the treasurer delivered to
Chase the monthly returns of the taxes so due, in the form
prescribed by law, signed by him as treasurer but not sworn to, and
which had never been filed with or delivered to the assessor. Chase
delivered to the assessor all these returns except those for
August, September, and October, 1867, which were never delivered,
nor did Chase at any time make any mention of them in his report to
the government, and he retained the amount, $24,923, paid by the
railroad company as the tax upon the returns for the three months
just mentioned. Five years after the receipt by Chase of this
money, and when he had become insolvent, suit was brought on his
official bond to recover the money so appropriated by him. The
defense set up by his sureties was that, as the money was not
received by Chase on any return made to the assessor, or on any
assessment of said taxes made by the assessor or by the
Commissioner of Internal Revenue, and as the return delivered to
Chase by the treasurer of the railroad company was not verified by
oath, it was a voluntary deposit of money in his hands by the
treasurer of the railroad company, and was not received by him in
his official capacity; that it was not his duty to receive it for
the government, and the sureties were not liable, because its
receipt was an unofficial act.
But the court held that the payment of the taxes to the
collector was a good payment to him in his official capacity; that
the money so paid was the money of the United States, and that the
sureties on his bond were responsible for it.
This case is so apposite to the question in hand, and so
conclusive, as to require no further remark.
It is next contended by the plaintiffs in error that they are
not liable for the $1,400 received during the absence of Potter,
extending from April 9 to June 30, 1874, by the person whom he had
left in charge of his office, because that person had no authority
to perform any of the duties of receiver.
There are two sufficient replies to this contention. First, no
such defense is set up in the answer or amended answer of the
plaintiffs in error. They cannot complain that the circuit court
did not give effect to a defense which they did not think it worth
while to plead. Second, it is not made to appear by
Page 107 U. S. 132
the bill of exceptions that any money was paid to Goodfellow,
the person left by Potter in charge of his office, which was not
due the United States from preemption entries made by persons who
had proved the settlement and improvement of the land to the
satisfaction of both the receiver and register. If, therefore, this
contention of the plaintiffs in error is sustained, we should, in
effect, decide that the sureties of the receiver would not be
answerable for public moneys paid, with his concurrence and assent,
to his assistant or cashier, but only for money actually paid into
the hands of the receiver himself. It requires no argument to
expose the fallacy of such a conclusion. If a public officer sees
fit to allow the money of the government to be paid during his
absence from his office into the hands of his agent or servant, it
is a good payment to him, and the risk is with him and his
sureties, and not with the government.
Judgment affirmed.
