Your opinion be expended for personal services in the District of Columbia." is asked whether the services of engineers as above mentioned can be paid legally from this appropriation. The matter is one of importance, as if the Supervising Architect is correct an appropriation of $35,000 or more must be obtained as soon as possible. The authority in the appropriation act of February 11, 1927, 44 Stat. 1080, to expend a limited amount for personal services in the District of Columbia, does not authorize the procurement of such services by contract, but contemplates the procurement of such services by direct employment in accordance with civil-service rules and regulations and at rates prescribed by the classification act of March 4. 1923, 42 Stat. 1488. Where there is a Government service qualified and available for the work desired it is not permissible to secure its performance by outside agencies. 1 Comp. Gen. 409. And the engaging of experts not in the Government service to express opinions as to what should or should not be done in the matter of preserving or protecting Government buildings is not authorized in the absence of specific legislative authority therefor. The question submitted is answered in the negative. (A-19055) DEEDS CONSIDERATION While the consideration named in a deed may be generally considered as prima facie evidence of the sum agreed to be paid for the property so conveyed, this may be overcome by clear and convincing evidence to the contrary; and where it is established that the agreement preceding the deed was for the sale of a lot and the improvements thereon for a total consideration of a much larger sum, the failure to name the entire consideration in the deed will not prevent the allowance of the claim for the remainder of the purchase price so agreed upon. Decision by Acting Comptroller General Ginn, August 15, 1927: Review has been requested of settlement of March 17, 1927, disallowing claim No. 0171881, of Albert Gunther and Martha Gunther, for $950, as the value of improvements on Kelly administrative site, lot No. 1, block 5, town site of Kelly, in Teton County, Wyo., which was conveyed to the United States by warranty deed dated June 29, 1926. By the deed in question the claimants, in consideration of the sum of $50, conveyed to the United States the above-described piece or parcel of land, "together with all and singular the tenements, hereditaments, and appurtenances thereto belonging or in anywise appertaining." The $50 has been paid, but the claimants now contend that that was the agreed price for the lot and that $950 had been agreed as the value of the improvements. It is a well-established principle of the law of real property that the conveyance of a parcel of land with appurtenances conveys the title of and to not only the soil but all buildings and improvements attached thereto, unless expressly reserved in the deed. With respect to the consideration, while the amount named in the deed may generally be considered as prima facie evidence of the sum agreed to be paid (4 Comp. Gen. 21), this may be overcome by clear and convincing evidence to the contrary (18 C. J., p. 265; 34 Cyc. 932; 20 Comp. Dec. 728; 3 Comp. Gen. 821). In support of the request for review there are now submitted affidavits by Albert Gunther and by four officers or employees of the Forest Service, to the effect that the sale was negotiated for the total consideration of $1,000, $950 being for the improvements, consisting of a first-class log house with cement basement and rock foundation, stable, corral, and garage, and $50 for the lot; that the reason for the separate price being fixed for the improvements and the lot was due to the provisions in the act of March 3, 1925, 43 Stat. 1132, prescribing separate limitations with respect to the amount which might be expended in any one year for the purchase of land for ranger stations, and with respect to the purchase price that may be paid for buildings for such stations. It is further contended that the drafting of the deed to cover the improvements as well as the lot was inadvertent, and that it was the intention to have reserved in the deed the improvements on the land. In view of the fact that it has been shown to have been the intention to acquire both the lot and the improvements, it must be concluded that it was proper to include the improvements in the deed, and that the reformation of the deed to exclude the improvements is not authorized. Furthermore, such a reformation does not appear necessary to afford the relief sought in this case. The evidence submitted as to the value of the improvements and the agreement for their purchase as well as for the purchase of the lot establishes conclusively that the consideration of $50 named in the deed is not the total consideration mutually agreed upon for the lot and the improvements covered by the deed. The claimants having fulfilled their agreement by the conveyance of both lot and improvements to the United States are now entitled to the full consideration agreed upon, namely, $1,000, less the amount already paid. Upon review $950 is certified due claimants. (A-17821) ARMY PAY-DESERTION Where a former soldier apprehended after his enlistment has expired is tried by court-martial for war-time desertion and found not guilty, or the charge of desertion is removed as erroneously entered, the man is not a war-time deserter. Any desertion from the Army subsequent to January 10, 1920,, will not be con sidered or treated for pay purposes as a desertion from the Army during the World War. Where a charge of desertion has been contemporaneously entered in the record of a soldier and the charge is removed over five years thereafter as erroneously entered, on a medical finding of a constitutional psychopathic state which existed at date of original enlistment, such change in the contemporaneous record will not be recognized for pay purposes. Acting Comptroller General Ginn to Maj. W. A. MacNicholl, United States Army, August 16, 1927: There has been received your letter of February 12, 1927, submitting final statement of Pvt. Fred A. Smith (6461539), Infantry, unassigned, for decision (1) as to the propriety of making payment thereon, and (2) if payment is authorized, whether payment should be made at the rate of pay prescribed by section 4b of the act of June 4, 1920, 41 Stat. 761, or at the rate prescribed by section 9 of the act of June 10, 1922, 42 Stat. 629. The final statement shows that Smith was accepted for enlistment at Peoria, Ill., and enlisted November 9, 1920; was honorably discharged at San Francisco February 11, 1927, by reason of "Certificate of disability, per 3d Ind., Hq. 9th C. A., dated Feb. 8/27," that pay is due from date of enlistment, and itemizes under due soldier "Entitled to pay as private, act June 4/20 for period Nov. 9/20 to Nov. 21/20, and as private, act Jun. 10/22 for period Aug. 31/26 to date of discharge," and for clothing, $4.78. The final statement contains the following notation: Due United States for-Deserted Nov. 21/20 at Ft. McDowell, Calif. Accounts at date of desertion: Due P. Ex. Jefferson Bks., Mo., ten and 00/100 ($10.00) dollars. Due P. Ex. McDowell, Calif., five and 00/100 ($5.00) dollars. Due US QM Property sixty-four and 03/100 ($64.03) dollars. Apprehended and returned to Mil. control Aug. 31/26 at Ft. McDowell, Calif., while serving fraudulently under the name of Pvt. Fred Adams, 6534164, Inf., Unasgd. Not tried. Charge of desertion removed as erroneously made, per par. 5, S. O. No. 11, Hq. 9th C. A., dated Jan. 20/27. AWOL Nov. 21/20 to Aug. 31/26. Due U. S. under the Fraud. Enlmt. of Pvt. Fred Adams, 6534164, Inf., Unasgd., for Clo. overdrawn thirty-three and 45/100 ($33.45) dollars. Date of Adams' Enlmt. Aug. 19/26. Never paid as Adams. Enlmt. of Adams dropped as of Aug. 30/26. REMARKS: Disability: Constitutional psychopathic state, inadequate personality, associated with periods of amnesia. Entitled to travel pay. Time lost under the 107th Article of War: 2,109 days (AWOL Nov. 21/20 to Aug. 31/26). It is stated that the records of the War Department show that Smith's original enlistment of November 9, 1920, was for a period of three years. The enlistment having been for three years, or for practical purposes 1,095 days, it is not correct or accurate to state it as absent without leave from such enlistment 2,109 days, or 5 years 284 days. Having served a portion of the enlistment, the absence without leave, so far as matters affecting pay are involved, is the remaining or unserved portion of the enlistment, and not the entire period elapsing between date of departure and date of return. In forwarding your request to this office the Chief of Finance stated by first indorsement, dated March 19, 1927, in part as follows: 3. In this connection there is for consideration a certain provision, hereinafter quoted, of the joint resolution of March 3, 1921 (41 Stat. 1359), which provision was not mentioned in your decision of September 29, 1926 (A-15792), in the case of Beecher Roberts, which decision has caused the doubt of Major MacNicholl as to his authority to make settlement in the present case. The legislation in question is in the following terms: "That nothing herein contained shall be construed as effective to terminate the military status of any person now in desertion from the military or naval service of the United States." 4. The provision of law quoted above operated to continue or preserve Smith's military status; and since other laws or regulations fix or specify the manner in which a military status shall be terminated normally-that is, by discharge— it would seem that on the facts of this case and under the joint resolution of March 3, 1921, a duty rested on the military authorities to terminate Smith's military status, continued in existence by the joint resolution; and that this termination was accomplished by discharge. It is apparently conceded in your decision in the Roberts case that military pay follows or is dependent upon, or incident to, military status; and since, as before stated, the joint resolution of March 3, 1921, continued Smith's military status until properly terminated by military authorities it would seem that that soldier is rightfully entitled to pay for the period covered in his final statement and also to the travel pay involved. * * * In the cited Roberts decision, A-15792, September 29, 1926, it appeared that Roberts, who was in the Army under the selective service act of May 18, 1917, 40 Stat. 82, was tried by court-martial October 27, 1925, for desertion committed April 21, 1919, and was found not guilty. In the present case there has been an administrative finding (par. 5, S. O. No. 11, Hdqrs. 9th Corps Area, dated January 20, 1927) that the charge of desertion entered against Smith was erroneously entered. In neither case was the former soldier found to be a deserter for the purposes of the thirty-ninth article of war, 41 Stat. 794, which fixes a limitation upon trials for military offenses except for desertion committed in time of war, or for mutiny or murder." The reference to the joint resolution of March 3, 1921, 41 Stat. 1359, is probably due to a misconception as to its effect. It is, in part, as follows: 66 Joint Resolution Declaring that certain acts of Congress, joint resolutions, and proclamations shall be construed as if the war had ended and the present or existing emergency expired * * That in the interpretation of any provision relating to the duration or date of the termination of the present war or of the present or existing emergency, meaning thereby the war between the Imperial German Government and the Imperial and Royal Austro-Hungarian Government and the Government and people of the United States, in any acts of Congress, joint resolutions, or proclamations of the President containing provisions contingent upon the duration or the date of the termination of such war or of such present or existing emergency, the date when this resolution becomes effective shall be construed and treated as the date of the termination of the war or of the present or existing emergency, notwithstanding any provision in any act of Congress or joint resolution providing any other mode of determining the date of such termination. And any act of Congress, or any provision of any such act, that by its terms is in force only during the existence of a state of war, or during such state of war and a limited period of time thereafter, shall be construed and administered as if such war between the Governments and people aforesaid terminated on the date when this resolution becomes effective, any provision of such law to the contrary notwithstanding: * * * Provided, however, That nothing herein contained shall be construed as effective to terminate the military status of any person now in desertion from the military or naval service of the United States, nor to terminate the liability to prosecution and punishment under the selective service law, approved May 18, 1917 (Fortieth Statutes, page 76), of any person who failed to comply with the provisions of said act, or of acts amendatory thereof: This joint resolution merely established a date when the technical state of war should be considered as terminated, notwithstanding provisions in other laws fixing a method of determining the end of the war, as, for example, section 4 of the act of June 15, 1917, 40 Stat. 217, which provided: That the service of all persons selected by draft and all enlistments under the provisions of the act entitled "An act to authorize the President to increase temporarily the Military Establishment of the United States," approved May eighteen, nineteen hundred and seventeen, shall be for the period of the war, unless sooner terminated by discharge or otherwise. Whenever said war shall cease by the conclusion of peace between the United States and its enemies in the present war, the President shall so declare by a public proclamation to that effect, and within four months after the date of said proclamation or as soon thereafter as it may be practicable to transport the forces then serving without the United States to their home station, the provisions of said act, in so far as they authorize compulsory service by selective draft or otherwise, shall cease to be of force and effect. The joint resolution of March 3, 1921, neither defined nor created "military status" nor provided for its continuance or termination. The language quoted by the Chief of Finance is largely a safeguard against interpretation or construction that it terminated liability for the military offense of war-time desertion. If, under war laws or other laws, the military status had theretofore terminated, the act does not revive the status. The existence or nonexistence of a military status was left to be determined by the facts of a case under the laws creating and applicable to that status. In the present case, Smith was not in service under any of the war statutes to which the joint resolution was addressed. He was in the service by voluntary enlistment under the peace-time laws for enlistments in the Regular Army, which had been suspended by the act of May 18, 1917, and which were reestablished with modifications by the act of February 28, 1919, 40 Stat. 1211, authorizing the resumption of voluntary enlistments in the Regular Army. The joint resolution cited is in no way applicable to the facts of this case nor to that of Roberts. There was jurisdiction to apprehend him under the circumstances of being absent without leave or tentatively in desertion until his status was determined by formal military procedure. In substance, there was a military charge against him which gave the right to apprehend him to have the legality of the charge determined. If the man was not a deserter, as was true in both cases, he was not a deserter and there was no jurisdiction to hold him. The proposition that would be presented by what is urged in these cases is that a man can be not a deserter for the purpose of criminal jurisdiction and punishment and yet be a deserter for the purpose of creating a military status on which rights to pay may be based. Nothing affecting pay status followed from the apprehension. The assertion of jurisdiction where none existed does not, of course, affect the status of the man. |