78 F. 513 | D. Conn. | 1897
In equity. The petition herein alleges that prior to December 16, 1889, the attorney for the United States for this district obtained a judgment against one Boceo. Cal vello as surety on a bond, and on said day tiled a judgment lien on certain real estate in said district, in which said Boceo Galvello had never had any interest, except a tenancy by curtesy as the husband of Mary Galvello, then deceased, who had owned the same in fee; that said interest was not then liable to attachment or execution; and that these petitioners are, respectively, the owners, mortgagor, and mortgagee of said real estate. They pray, either that said lien may be adjudged void and may be canceled, or that “a decree may be made that unless the United States of America pay to the petitioners the amount due to them upon said mortgages, within such reasonable time as this court may limit, said United States of America be foreclosed of any right: or equity to redeem said mortgaged premises.” To this petition the attorney for the United States has filed a plea claiming that this court; has no jurisdiction to grant such relief. The argument of counsel for the petitioners is based upon chapter 859 of the Acts of 1887 (Supp. Bev. St. p. 559), which provides that the court of claims and the district; court shall have jurisdiction to hear and determine “claims founded upon the constitution of the United States or any law of congress, except for pensions, or upon any regulation of an executive department, or upon any contract, expressed or implied, with the government of the United States, or for damages, liquidated or unliquidat-ed, in- cases not sounding in tort, in respect of which claims the party would be entitled to redress against the United States either in a court of law, equity, or admiralty if the United States were suable.” Counsel for the petitioners claims that this statute is a remedial one, intended to confer jurisdiction upon this court in all cases other than those sounding in tort, and that this lien is an attempt on the part of the United States to enforce the contract upon which the judgment was obtained.
It is unnecessary to consider all the jurisdictional questions raised by counsel for the United States. The jurisdiction of this court is defined and limited by the federal constitution and laws. It cannot entertain suits against the United States except in cases
“The United States, by successive acts of congress, have consented to he sued upon their contracts, either in the court of claims, or in a circuit or district court of the United States. * ⅜ * But the United States have not consented to be liable to suits, founded in tort, for wrongs done by their officers, though in the discharge of their official duties.”
There are two answers to the further claim of counsel for the petitioners that in cases of tort the party may waive the tort and claim under an implied contract. The first is found in the fact that they have not done so. In Schillinger v. U. S., 155 U. S. 169, 15 Sup. Ct. 85, the court says:
“If it be said that a party may someti&es waive a tort and sue in assumpsit, as on an implied promise, it is technically a sufficient reply to say that these claimants have not done so. They have not counted on any promise, either express or implied.”
The second answer is that the rule does not apply to this kind of a case.
“The United States cannot be sued in their own courts without their consent, and have never permitted themselves to be sued in any court for torts committed*515 in their name by their officers. Nor can the' settled 'distinction in this respect between contract and tort bo evaded by framing the claim as upon an implied contract. * ⅞ * An action in the nature of assumpsit, for the use and occupation of real estate, will never lie where there has been no relation of contract between the parties, and where the possession has been acquired and maintained under a different or adverse title, or where it is tortious, and makes the defendant a trespasser. * * f ’ Hill v. U. S., 140 U. S. 508, 13 Sup. Ct. 1011.
The case is a bard one, and I have no doubt that, upon presentation of satisfactory proof of the facts alleged to the proper department, it will grant the appropriate relief. The petition is dismissed.