235; S. C., 60 Ind., 132; Whisnand v. Small, 65 | Fairbanks' railroad scales, wagon scales, four Ind., 127; Freem. Ex., secs. 258-9. By the law of Indiana, a leasehold for a definite term is personal property. They acquired no property in the coal until they were severed from the land. The contract in question is a lease. Knight v. Coal & Iron Co., 47 Ind., 105; Tarvin v. Risher, 52 Ind.,389; McDowell v. Hendrix, 67 Ind., 513; Coal & Min. Co. v. Casteel, 73 Ind., 296; Duchane v. Goodtitle, 1 Blackf., 117; Barr v. Doe, 6 Blackf.,335; Cade v. Brownlee, 15 Ind., 369; Meni v. Rathbone, 21 Ind., 466; Smith v. Dodds, 35 Ind., 452; McCarty v. Burnet, 84 Ind., 26; Taffe v. Warnick, 3 Blackf., 111; McCracken v. Hall, 7 Ind., 30; Frederick v. Devol, 15 Ind., 357; State v. Banham, 18 Ind.,231; Cromie v. Hoover, 40 Ind., 56; Young v. Baxter, 55 Ind., 192; see, also, Foy v. Reddick, 31 Ind., 415; Buhl v. Kenyon, 11 Mich., 249. A judgment lien is entirely the creature of statute. Overton, Liens, sec. 255; Gimbel v. Stolte, 59 Ind., 446; Houston v. Houston, 67 Ind., 276. The legislative power is as ample to make it attach upon personal property as upon real estate, in many States. Brown v. Clarke, 4 How., 12. screens, blacksmith's shop, one office building, one engine building and dump house, one stable, one lime house, two dwelling-houses, track in coal mine, railroad track, switches, and all fixtures belonging to the coal mine on said real estate and leasehold." The levy and sale included the interest of the judgment debtors for the residue of terms of years unexpired under certain mining leases of real estate, embrac ing that covered by the Bunting agreement, hereinafter mentioned. The two Banks became the purchasers at the sale, on June 9, 1877, and received a certificate, which stated that they would be entitled to a deed unless the property should be redeemed within one year from the date of the sale. On the 25th of December, 1877, they filed a bill in equity, in the Circuit Court of the United States for the District of Indiana, against the members of the firm of William Helphenstine & Co., and the members of the firm of Hyatt, Levings & Co. The latter were judgment creditors of William Helphenstine & Co. The object of the suit was to restrain interference with the purchased property. The bill was afterwards amended, by making the sheriff a defendant, and by alleging that Hyatt, Levings & Co. had caused a levy to be made, under an ex But each class of property must be sold in accordance with the statutory regulations gov-ecution on their judgment, on iron rails and erning the particular class, regardless of the question whether the judgment is or is not a lien thereon. Section 526 under article 24, does not enact that chattels real shall be advertised in the same manner and sold at the same place as lands. It only declares that terms of years are subject to attachment and execution. In this it simply re-enacted the law as it then existed. We also refer to the following authorities, in support of the views we have sought to express: Herm. Ex., secs. 115, 116, 127, 129; People v Westervelt, 17 Wend., 674; Mayor v. Mabie, 13 N. Y., 158; Chapman v. Gray, 15 Mass., 445; Bisbee v. Hall, 3 Ohio, 449; McLean v. Rockey, 3 McLean, 235; Hunt v. Iron Co., 97 Mass., 282; State v. Bonham, 18 Ind., 233; Van Ness v. Pac ard, 2 Pet., 137; Williams v. Downing, 18 Pa. St., 62. Mr. F. W. Viehe, for appellees. Mr. Justice Blatchford delivered the opinion of the court: The Vincennes National Bank, of Vincennes, Indiana, and the Washington National Bank, of Washington, Indiana, having severally recovered judgments against William Helphenstine and others, composing the firm of William Helphenstine & Co., issued executions thereon, under which and under an execution on another judgment, the Sheriff of Knox County, Indiana, at the court house door, in Vincennes, in that county, on a notice advertised for three weeks successively in a weekly newspaper, and notices posted as required by law for twenty days, offered at public sale the rents and profits, for a term not exceeding seven years, of certain real estate and chattels real on which he had levied, and, having received no bid for such rents and profits, exposed to public sale the fee simple of the real estate and chattels real and [409] the improvements thereon, to wit: "One engine and boiler and hoisting machine, steam pump, other property, which Helphenstine had detached, and on articles which constituted a part of the machinery for operating the mine, and which were firmly attached to the real estate and leasehold and were part of the property so purchased by the plaintiffs. The question in the case arises in respect to an agreement or lease in writing, executed by one Bunting and his wife and William Helphenstine & Co., in July, 1874, by which the former conveyed to the latter, their heirs, successors and assigns, for a term of fifty years, "all the mineral coal, iron ore, fire and potter's clay, limestone, building stone and other minerals, upon and under the farm or tract of land" described, with the exclusive right to enter on the land to dig for the articles named, and, when found, to remove the same from the land, "to- [410] gether with all rights and privileges incident to mining and securing the minerals aforesaid, including the right of ingress and egress, and to dig, bore, mine, explore and occupy with constructions and buildings, as may be necessary and useful for the full development and enjoyment of the advantages of said coal and other minerals as aforesaid.' The lessees were given 'the right to remove all buildings or fixtures placed on said land when said agreement has been forfeited or may have expired;" and they were to pay fixed royalties for the articles mined and removed. The answers of Helphenstine & Co., and of Hyatt, Levings & Co., aver that the property in question was personal property, situated fifteen miles distant from the court house of the county, and was used in and about the operation of the mine under the mining contract. Before the hearing the parties stipulated in writing: "That the plaintiffs are entitled to a decree as prayed for, unless the property sold should have been sold as personal property, as provided for by the statutes of the State of Indiana; that the sheriff's sale was made at the court house door, in the City of Vincennes, in | be sold on execution against the debtor owning Knox County, and more than twelve miles from the same, or for whose use the same is holden, the property." The circuit court entered a de- viz.: First. All lands of the judgment debtor, cree, that, by virtue of their purchase and the whether in possession, reversion or remainder. certificate thereof, the plaintiffs became the Second. Lands fraudulently conveyed with inequitable owners, subject to the right of re- tent to delay or defraud creditors. Third. All demption, "of the real estate, fixtures, machin-rights of redeeming mortgaged lands; also, all ery, and chattels real," which the decree went lands held by virtue of any land-office certifion to describe; and of the right, title and in- cate. Fourth. Lands and any estate or interest terest of William Helphenstine & Co., being therein, holden by anyone in trust for or to the the residue of terms of years unexpired under use of another. Fifth. All chattels real of the certain mining leases of specified real estate, in- judgment debtor." Art. 22, sec. 463, p. 215: cluding that covered by the agreement with the Sec. 463. The estate or interest of the judgBuntings; that on said land and leaseholds were ment debtor in any real estate shall not be sold situate and sold, as aforesaid, to the plaintiffs, on execution, until the rents and profits thereof, the chattels real before described as sold to for a term not exceeding seven years, shall them; and that the sheriff had levied on prop- have been first offered for sale at public auction; erty which, at the time of the sale to the plaint- but, if the same shall not sell for a sum suffiiffs, was annexed to and constituted part of said cient to satisfy the execution, then the estate or real estate and chattels real, and was part of the interest of the judgment debtor shall be sold by property sold to the plaintiffs, and intended to virtue of the execution." Art. 22, sec. 466, p. sell it. The decree en joined the defendants from 217: "Sec. 466. Real estate, taken by virtue selling the property so levied on. Subsequently, of any execution, shall be sold at public auction the defendants moved to modify the decree by at the door of the court house of the county in [411] striking out so much as enjoined the sheriff which the same is situated; and, if the estate from selling the machinery, buildings, fixtures shall consist of several lots, tracts and parcels, and improvements situate on the premises held each shall be offered separately; and no more under the agreement with the Buntings, be- of any real estate shall be offered for sale than cause they were personal property when levied shall be necessary to satisfy the execution, on under the execution of the plaintiffs, and unless the same is not susceptible of division. the sale was void because they were not sold as Art. 22, sec. 467, as amended February 2, 1855, personal property but as real property, and the p. 217: "Sec. 467. The time and place of plaintiffs acquired no title under the sale made making sale of real estate, on execution, shall at the court house door. The motion was over- be publicly advertised by the sheriff, for at least ruled. The defendants have appealed to this twenty days successively, next before the day court, setting forth, in their petition of appeal, of sale, by posting up written or printed notices that they appeal from that part of the decree thereof, in three public places in the township which relates to the machinery, buildings, fixt-in which the real estate is situated, and a like ures and improvements situated on the Bunting premises and held under the Bunting agreement, on the ground that it was personal property and not real estate, and was not sold as personal property, in the presence of the officer making the sale. The only question for decision is, by the stipulation of the parties, whether the property in question should have been sold in the manner in which personal property was required by the Statute of Indiana to be sold. The statute in force at the time, in regard to the sale of personal property on execution, 2 R. S. of Indiana, of 1852, part 2, ch. 1, Act of June 18, 1852, art. 22, secs. 468, 469, Vol. 2 of Davis' ed. of 1876, p. 218, provided as follows: "Sec. 468. Previous notice of the time and place of the sale of any personal property on execution shall be given for ten days successively, by posting up written notices thereof in at least three of the most public places in the township where the sale is to be made. Sec 469. Personal property shall not be sold unless the same shall be present and subject to the view of those attending the sale; and it shall be sold at public auction in such lots and parcels as shall be calculated to bring the highest price." The Revised Statutes of Indiana, of 1852, in force at the time, in regard to the sale of real estate on execution, 2 R. S., part 2, ch. 1, Act of June 18, 1852, Vol. 2 of Davis' ed. of 1876, provided as follows, art. 24, sec. 526, p. 232 advertisement at the door of the court house of In the rules prescribed by the Act, art. 48, 2. The Revised Statutes of Indiana, of 1843, Act of February 11, 1843, part 2, ch. 29, art. 1, sec. 1, provided as follows: "Section 1. When, by any law of this State, real estate is authorized or directed to be sold by virtue of any execution, the same shall be construed to mean and include: 1. All the lands, tenements and hereditaments of the judgment debtor, whether in possession, reversion or remainder. Lands, tenements and hereditaments fraudulently conveyed with intent to defeat, delay or defraud creditors. 3. All rights of redeeming mortgaged lands, tenements or hereditaments, and also all lands held by virtue of any landoffice certificate. 4. Lands, tenements and hereditaments and any estate or interest therein, holden by anyone in trust for or to the use of [414] [415] [416] another, on execution issued on any judgment in the Revision of 1852, Vol. 2 of Davis' ed. of person. " The point decided in Meni v. Rathbone, 21 Ind., 454, 467 was, that a lease for years, acquired by a wife during coverture, became the property of her husband when reduced to possession by him and, being a chattel, was personal property, under the definition before referred to, and subject to the husband's debts and, being a chattel real, a judgment against the husband was, by the Statute of 1852, a lien upon it. The interest of the judgment debtors in this case in the land covered by the Bunting agreement was a chattel real; and, as the dispute here relates to machinery, buildings, fixtures and improvements situated on the Bunting premises, and held under the Bunting agreement, it follows that that property had impressed on it, by the statute, for the purposes of a sale on execution, the character of a chattel real and became for those purposes real estate and, therefore, was not required to be sold as personal property, present and subject to the view of those attending the sale, but was properly sold as real estate, at the door of the county court house. The motion made in the circuit court to modThe estate for years, or the interest in the ify the decree was based on the idea, that, while land, could not be subject to view. The ma- the term for years might be a chattel real, the chinery, buildings, fixtures and improvements machinery, buildings, fixtures and improvewere created under the privilege given by the ments placed on the land should have been sold agreement, to occupy the land with construc-as personal property. As the statute requires tions and buildings for mining coal and other that real estate shall be sold at the door of the minerals, and, although Helphenstine & Co. court house, the visible property could not be had the right to remove the buildings and fixt- sold there in view of the persons attending the ures at the expiration of the agreement, yet, so sale of the real estate, unless it was first severed long as they were held under the agreement, on from the land; and to have so treated it would, the premises, and were of the character referred doubtless, have rendered not only it but the to, they followed the term for years and par-term for years worthless, as vendible articles. took of its character. No such result could have been contemplated by the law-makers, and none such can be al- [418] lowed, if another reasonable and consistent construction is to be found. In Barr v. Doe, 6 Blackf., 335, in 1843, it was held that a parol lease for three years was a chattel interest, and could be sold as a chattel, on an execution issued by a justice of the peace. But that decision does not apply to the statute now under consideration, and no case is cited or found in the Courts of Indiana, which holds to the contrary of the views above expressed. Indeed, in the Revised Statutes of 1843, part 3, chap. 47, sec. 347, p. 992, form No. 10, the form prescribed for an execution by a justice of the peace was against "goods and chattels," while It is not necessary or proper to consider any The decree of the Circuit Court is affirmed. James H. McKenney, Clerk, Sup. Court, U. S. (See S. C. Reporter's ed., 418-423.) Effect of Act of Congress, for refunding taxes. *Under the Act of Congress of July 29, 1882, 22 to the persons therein named of the amount of tax- [No. 1001.] of September 11, 1882, the following: "The At the request of the counsel for the defend- August 30, 1864, an assessment division of the district comprising Rutherford County was Submitted Jan. 7, 1885. Decided Mar. 2, 1885. first established. APPEAL from the Court of Claims. The history and facts of the case appear in the opinion of the court. Mr. Wm. A. Maury, Asst. Atty-Gen., for appellant. Mr. Charles F. Benjamin, for appellee. June 6, 1865, the claimant paid the collector of this district $1,145, as annual income tax for the year 1863, under the requirements of the Act of July 1, 1862, ch. 119, 12 Stat. at L., 473, 474, and $1,145 as the special 5 per cent war income tax for the year 1863, under the requirements of the Joint Resolution of July 4, 1864, No. 77, 13 Stat. at L., 417. June 21, 1865, the Secretary of the Treasury Mr. Justice Blatchford delivered the opin-issued Special Circular No. 16, containing the ion of the court: following among other regulations: Section 46 of the internal revenue Act apStates shall have been re-established in any proved June 30, 1864, 13 Stat. at L., 240, provides that whenever the authority of the United State where the execution of the laws had previously been impossible, the provisions of the Act shall be put in force in such State, with such modification of inapplicable regulations in regard to assessment, levy, time and manner of collection as may be directed by the Depart ment. On the 29th of July, 1882, an Act of Congress was passed, 22 Stat. at L., 723, ch. 359, proand he is hereby authorized and directed to reviding "That the Secretary of the Treasury be mit, refund and pay back, out of any moneys in the treasury not otherwise appropriated, to 419] the following named citizens of Tennessee, or the legal representatives of such as are deceased, the amount of taxes assessed upon and collected from the said named persons contrary to the provisions of the regulations issued by the Secretary of the Treasury, under date of June 21, 1865, and published in special circular numWithout waiving in any degree the rights of bered sixteen, from the Internal Revenue Of the Government in respect to taxes that have fice, of that date, said refunding having been heretofore accrued, or assuming to exonerate recommended by the Secretary of the Treasury the taxpayer from his legal responsibility for under date of June 19, 1873, that is to say, to" such taxes, the department does not deem it ad-followed by the names of eighty-one persons, visable to insist at present upon their payment, and the specification of a sum of money oppo-lishment of a collection district embracing the so far as they were payable prior to the estabsite each name, and, among them, this: "To Edward L. Jordan, $2,290 ** all of Ruth- territory in which the taxpayer resides. erford County, Tennessee *** said persons, But assessors in the several collection districts and each of them having filed their claims in recently established in the States lately in inthe office of the Commissioner of Internal Rev-surrection are directed to require returns and enue, prior to the 6th of June, 1873." to make assessments for the several classes of Afterwards and on the 6th of September, taxes for the appropriate legal period preced1882, the acting Commissioner of Internal Reving the first regular day on which a tax beenue transmitted to the Secretary of the Treas- comes due after the establishment of the Disury, for his action, the claim of Edward L. trict. *** Jordan to be paid $2,290 under the Act. On that letter, under date of September 11, 1882, the acting Secretary of the Treasury indorsed an order directing that Jordan be paid that sum. He was paid one half of it, $1,145, on November 2, 1882, but payment of anything more was refused. On the first of December, 1882, he brought a suit against the United States, in the Court of Claims to recover the remaining $1,145. On December 7, 1882, the Secretary of the Treasury indorsed on the order *Head note by Mr. Justice BLATCHFORD. 113 U. S. In the States of Virginia, Tennessee and since established, with such boundaries as to Louisiana, collection districts were some time include territory in which it has but recently United States. In those districts the rule laid become possible to enforce the laws of the [421] down above will be so modified as to require the assessment and collection of the first taxes which become due after the establishment of assessment divisions in the particular locality. * * June 19, 1873, the Secretary of the Treasury addressed to the Commissioner of Internal Rev enue the following letter, which is referred to | took, as it had a right to do, to determine not in the Act of Congress: TREASURY DEPARTMENT, OFFICE OF THE SECRETARY, Sir: I have considered the claim of William Gosling and others, applicants for refunding taxes alleged to have been illegally collected, included in schedule No. 243, from your office, and am of opinion, that, under the existing laws, the taxes paid by these parties were legally paid and should not be refunded. But I fully recognize the hardship of the case, and desire that such claimants may receive relief from Congress. I have, therefore, to suggest, that you will, in your next annual report, or on any other occasion which you may deem more fitting, recommend the passage of a special Act authorizing the refunding of all taxes paid by residents of the insurrectionary States which, under Depart ment circular of June 21, 1865, should not have been collected, such refunding to be made whether the tax in question was collected before or after the issue of the circular. I am, very respectfully, WILLIAM A. RICHARDSON, Secretary of the Treasury." It is stated in the brief for the United States that the payment of the $1,145 was refused by the accounting officers of the Treasury, on the ground that the statute authorized payment of only "So much of the sum named as might be determined at the Treasury to represent the amount of taxes assessed and collected contrary to the regulations of the Secretary of the Treasury named in the Act," and that the sum paid to the claimant was the sum total of the taxes [422] that had been improperly collected from him. From the published decision of the First Comptroller in the case, 3 Lawrence's Dec., 274, the ground of refusal appears to have been the one above stated, and the opinion of the Court of Claims in this case shows that such ground was urged before that court and rejected. The view taken by the treasury officers was, that the annual income tax of $1,145, for the year 1863, under the Act of July 1, 1862, became, by the statute, due and payable May 1, 1864, before the assessment division which comprised Rutherford County was established, and under the treasury regulations of June 21, 1865, in circular No. 16, which required the collection only of the first taxes which became due after the establishment of assessment divisions, that sum of $1,145 was collected contrary to the provisions of those regulations and was to be refunded, although it was collected before the date of the circular. But the treasury officers decided that the $1,145 paid for the special income tax under the Joint Resolution of July 4, 1864, and which, by law, did not become due till October 1, 1864, after the establishment of such assessment division, was not collected contrary to the provisions of those regulations and was not to be refunded. The Court of Claims held that the statute did not admit of that interpretation, nor leave open any question for the court or for the accounting officers of the Treasury, except the identity of the claimants with the persons named in it; and that its language, taken together, was too -clear to admit of doubt, that Congress under only what particular citizens of Tennessee by name should have relief, but also the exact amount which should be paid to each one of them. We concur in this view. The Act authorizes and directs the Secretary of the Treas ury to pay to the several persons named the respective sums named. Although the Act speaks of the sums as being "the amount of taxes assessed upon and collected from the said named persons contrary to the provisions of the regulations" named, there is no indication of any intention to submit to any one the determination of the question whether the taxes in any case were collected contrary to the provisions of such regulations, or of the question how those provisions are to be construed. On the [423] contrary, the clear import of the statute is that Congress itself determines that the amounts named were collected contrary to the provisions of the regulations. The statement in the statute that the refunding had been recommended by the Secretary of the Treasury, under date of June 19, 1873, refers to the letter of that date, set forth in the findings, which recommends the passage of an Act to refund all taxes which, under the circular of June 21, 1865, "should not have been collected, such refunding to be made, whether the tax in question was collected before or after the issue of the circular." The claimant's two income taxes were both of them paid before the circular was issued. In one sense, therefore, they were not collected trary to the provisions of the regulations;" and, in that sense, it was wrong to refund anything to the claimant, under the language of the Act. But with the specification, in the Act, of the name and the amount, no such construction can be given to it as would prevent the refunding of anything because the whole amount had been paid before the issuing of the regulations; and, if anything is to be paid, the whole must be. If there is discretion confided to any officer or court to inquire whether the claimant's taxes were collected contrary to the regulations, there would be like discretion to inquire whether such taxes were embraced in the letter of June 19, 1873, and whether the claimant had filed his claim before June 6, 1873. No such construction is applicable to a statute of this character. con It is not an improper inference from the language of the statute, that Congress intended to refund the taxes covered by the recommendation of the Secretary of the Treasury in his letter of June 19, 1873. That letter covers taxes described as those which, under the circular, should not have been collected, though collected before it was issued. Congress may, therefore, have included some taxes collected before the circular was issued, but which it thought should not have been or ought not to have been collected, in the sense intended by the Secretary. The judgment of the Court of Claims is affirmed. True copy. Test: James H. McKenney, Clerk. Sup. Court, U. 8. |