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B-37241, NOVEMBER 2, 1943, 23 COMP. GEN. 323

REAL ESTATE - DESTRUCTION OF IMPROVEMENTS AFTER DELIVERY OF DEED BUT PRIOR TO PAYMENT OF CONSIDERATION WHERE, UNDER A CONTRACT OF SALE FOR LAND AND BUILDINGS LOCATED THEREON PROVIDING THAT THE GOVERNMENT SHALL HAVE THE RIGHT TO POSSESSION OF THE PREMISES AT ANY TIME AFTER ACCEPTANCE OF THE OFFER AND THAT PAYMENT OF THE PURCHASE PRICE SHALL BE MADE WHEN THE TITLE HAS BEEN FOUND SATISFACTORY, THE DEED TO THE PROPERTY HAD BEEN DELIVERED TO THE GOVERNMENT AND PROPERLY RECORDED PRIOR TO THE DATE THE BUILDINGS WERE DESTROYED BY FIRE, THE FACT THAT THE GOVERNMENT HAD NOT EXERCISED ITS RIGHT OF POSSESSION OR PAID THE PURCHASE PRICE AT THE TIME THE BUILDINGS WERE DESTROYED DOES NOT OPERATE TO RELIEVE THE GOVERNMENT FROM PAYMENT OF THE ENTIRE PURCHASE PRICE.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF WAR, NOVEMBER 2, 1943:

I HAVE YOUR LETTER OF SEPTEMBER 28, 1943, REQUESTING DECISION AS TO THE AMOUNT AUTHORIZED TO BE PAID ON A VOUCHER STATED IN FAVOR OF THE AGNES JULIA DOLAN ESTATE IN THE AMOUNT OF $2,000 REPRESENTING THE PURCHASE PRICE OF A TRACT OF LAND WITH IMPROVEMENTS THEREON, NUMBERED BH-37, LOCATED IN THE TOWN OF WINCHENDON, WORCESTER COUNTY, MASSACHUSETTS, ACQUIRED BY THE UNITED STATES FOR USE IN CONNECTION WITH THE BIRCH HILL RESERVOIR PROJECT UNDER A DEED EXECUTED ON MAY 15, 1942 BY THE ADMINISTRATOR OF DECEDENT'S ESTATE. IT IS UNDERSTOOD FROM YOUR LETTER THAT YOUR DOUBT IN THE MATTER IS OCCASIONED BY THE REPORTED DESTRUCTION OF THE BUILDINGS ON THE PROPERTY --- CONSISTING OF HOUSE, BARN, AND HEN HOUSES--- BY A FIRE ON JULY 12, 1942, WHICH BUILDINGS, EXCEPT THE HEN HOUSES, WERE INSURED BY THE VENDOR IN THE AMOUNT OF $1,200, AND THAT AT THE TIME OF THE FIRE THE UNITED STATES HAD NOT EXERCISED ITS RIGHT OF POSSESSION OR PAID THE PURCHASE PRICE.

THE ENCLOSURES TRANSMITTED WITH YOUR LETTER SHOW THAT BY A PROPOSAL DATED FEBRUARY 19, 1941, THE ADMINISTRATOR OF DECEDENT'S ESTATE OFFERED TO SELL THE TRACT OF LAND HERE INVOLVED TO THE UNITED STATES FOR THE AMOUNT OF $2,000, UPON CERTAIN TERMS AND CONDITIONS SET FORTH IN SAID PROPOSAL AS FOLLOWS:

2. PAYMENT OF THE CONSIDERATION SHALL BE MADE WHEN THE TITLE HAS BEEN FOUND SATISFACTORY.

3. THE UNITED STATES OF AMERICA, SHALL PROCURE AT ITS OWN EXPENSE THE NECESSARY ABSTRACT OR CERTIFICATE OF TITLE, AND WILL PREPARE THE NECESSARY DEED OF CONVEYANCE.

6. THIS OFFER SHALL REMAIN OPEN UNTIL ACCEPTED OR REJECTED BY THE UNITED STATES DISTRICT ENGINEER, PROVIDENCE, RHODE ISLAND, PURSUANT TO AUTHORITY OF THE SECRETARY OF WAR, BUT NOT TO EXCEED A PERIOD OF 9 MONTHS.

7. THE UNITED STATES OF AMERICA SHALL HAVE THE RIGHT TO TAKE POSSESSION OF SAID REAL ESTATE AND TO PROCEED WITH THE WORK THEREON AT ANY TIME AFTER ACCEPTANCE OF THIS OFFER, SUBJECT TO PROVISIONS OF PARAGRAPH 7 (A).

7. (A). THE UNDERSIGNED OR HER HEIRS SHALL BE PERMITTED TO USE AND OCCUPY THE PREMISES UNTIL SEPTEMBER 30, 1941, BUT IT IS CLEARLY UNDERSTOOD AND AGREED THAT THE PERMISSIVE USE THEREOF IS SUBJECT TO THE RIGHT OF THE UNITED STATES AT ALL TIMES TO CARRY ON ANY WORK OR OPERATIONS IN CONNECTION WITH THE CONSTRUCTION AND OPERATION OF THE BIRCH HILL RESERVOIR. IT IS FURTHER UNDERSTOOD AND AGREED THAT SUCH PERMISSIVE USE AND OCCUPANCY SHALL BE AT THE SOLE RISK OF THE UNDERSIGNED, AND THE UNITED STATES SHALL NOT BE LIABLE FOR ANY LOSS OR DAMAGE TO CROPS, LIVESTOCK, PROPERTY, OR PERSON, CAUSED TO THE OWNER, TENANT, OCCUPANT, OR ANY OTHER PERSONS, BY OPERATIONS OF THE GOVERNMENT OR INUNDATION OF THE LAND. IT IS FURTHER UNDERSTOOD AND AGREED THAT IN ADDITION TO ALL OTHER WORK AND OPERATIONS, THE GOVERNMENT WILL BEGIN CLEARING OPERATIONS ON SAID LANDS ON OR ABOUT OCTOBER 1, 1941. THE UNDERSIGNED AGREES TO COMPLETELY VACATE SAID PREMISES NOT LATER THAN SEPT. 30, 1941. THE PERMISSIVE USE HEREIN MENTIONED IS NOT ASSIGNABLE OR TRANSFERABLE.

THE VENDOR'S PROPOSAL WAS ACCEPTED BY LETTER OF APRIL 1, 1941, IN WHICH HE WAS NOTIFIED THAT SHORTLY THEREAFTER A DEED WOULD BE PRESENTED TO HIM FOR EXECUTION AND THAT UPON APPROVAL OF TITLE TO TRACT BH-37 BY THE ATTORNEY GENERAL, FINAL SETTLEMENT WOULD BE ACCOMPLISHED. AS TO THE CIRCUMSTANCES UNDER WHICH THE DEED WAS DELIVERED TO THE UNITED STATES IT IS STATED IN THE LETTER OF MAY 15, 1942, FROM THE ADMINISTRATOR TO THE DISTRICT ENGINEER'S OFFICE, AS FOLLOWS:

I ENCLOSE ADMINISTRATOR'S DEED OF THE AGNES JULIA DOLAN PLACE ON NEW BOSTON ROAD FOR THE SUM OF $2,000 AS PER AGREEMENT ENTERED INTO BY MISS DOLAN, THE DESCRIPTION BEING THAT FURNISHED BY YOUR OFFICE. I ALSO ENCLOSE THE LICENSE ISSUED BY THE PROBATE COURT ON MAY 13TH AUTHORIZING THIS CONVEYANCE, WHICH I ASSUME WILL BE RETURNED TO ME AFTER THE DEED IS APPROVED AS TO FORM. IT IS MY UNDERSTANDING THAT I AM TO RECEIVE A CHECK FOR TWO THOUSAND (2,000) DOLLARS IN PAYMENT FOR THIS PROPERTY WHEN THE DEED IS FINALLY APPROVED. I ASSUME A REASONABLE TIME WILL BE GIVEN THE FAMILY TO REMOVE WHAT LITTLE PERSONAL PROPERTY MAY BE IN THE DWELLING HOUSE AND OUTBUILDINGS.

IN A PRELIMINARY OPINION OF JUNE 4, 1942, THE ATTORNEY GENERAL FOUND THAT THE ADMINISTRATOR OF DECEDENT'S ESTATE, ACTING UNDER AUTHORITY CONFERRED UPON HIM BY THE LICENSE OF MAY 13, 1942, ISSUED BY THE PROBATE COURT FOR WORCESTER COUNTY, COULD CONVEY A GOOD TITLE TO THE LAND SUBJECT TO CERTAIN OBJECTIONS AND CONDITIONS SET FORTH IN SAID OPINION AND FOUND THAT A VALID TITLE TO THE LAND WOULD VEST IN THE UNITED STATES WHEN SUCH OBJECTIONS AND CONDITIONS SHOULD BE MET, THE DEED PROPERLY STAMPED AND RECORDED, THE PURCHASE PRICE PAID AND THE ABSTRACT CONTINUED AND CERTIFIED TO A DATE SUBSEQUENT TO THE RECORDATION OF THE DEED SUBJECT TO THE RIGHTS AND EASEMENTS AS SET FORTH IN THE OPINION. THE DEED, ACKNOWLEDGED BY THE GRANTOR, SHOWS THAT IT WAS RECORDED AT 10:47 A.M., JULY 11, 1942, IN BOOK 2858, PAGE 523, IN THE OFFICE OF REGISTRY DEEDS, WORCESTER DISTRICT.

IN LETTER OF JULY 13, 1942, THE ADMINISTRATOR WROTE THE OFFICE OF THE DISTRICT ENGINEER AT PROVIDENCE, AS FOLLOWS:

KINDLY INFORM ME WHAT THE PRESENT SITUATION IS IN REGARD TO THE DEED OF THIS PROPERTY FORWARDED TO YOUR OFFICE ON MAY 15TH, ALONG WITH LICENSE OF PROBATE COURT AUTHORIZING SALE OF THIS PROPERTY IN THE SUM OF $2,000. HAVE NEVER HAD AN ACKNOWLEDGMENT OF ITS RECEIPT OR ANY REASON GIVEN FOR THE DELAY IN PUTTING THRU PAYMENT.

THE BUILDINGS WERE DESTROYED BY FIRE YESTERDAY MORNING WITH INSURANCE COVERING SAME FOR $1200, LOSS TO BE ADJUSTED LATER.

BY LETTER OF SEPTEMBER 18, 1942, THE FIRE COMPANY'S ADJUSTMENT BUREAU NOTIFIED THE VENDOR THAT THE CONNECTICUT FIRE INSURANCE COMPANY, THE INSURER OF THE BUILDINGS, DENIED LIABILITY TO THE INSURED FOR THE HOUSE AND BARN UNDER THE TERMS OF THE INSURANCE POLICY AND THAT THE HEN HOUSES WERE NOT COVERED BY THE POLICY.

IN LETTER OF SEPTEMBER 24, 1942, TO THE OFFICE OF THE PROJECT ENGINEER AT WINCHENDON, THE ADMINISTRATOR, IN DEMANDING PAYMENT OF THE PURCHASE PRICE OF $2,000 WITHOUT FURTHER DELAY, STATED THAT HE HAD BEEN INFORMED THAT THE INSURANCE COMPANY DENIED PAYMENT FOR THE LOSS OF THE BUILDINGS BY THE FIRE ON THE GROUND THAT TITLE TO THE LAND HAD PASSED TO THE UNITED STATES UPON THE RECORDING OF THE DEED; THAT THEREAFTER THE DECEDENT'S ESTATE HAD NO INSURABLE INTEREST; AND THAT THERE WAS NO ASSIGNMENT OF THE POLICY TO THE GRANTEE PRIOR TO THE LOSS.

IN CONNECTION WITH THE RECORDING OF THE DEED IT IS STATED IN YOUR LETTER THAT RECORDATION OF THE DEED AT THE TIME OF FILING FOR RECORD FOLLOWED THE CUSTOMARY PROCEDURE IN ACQUISITION OF LAND FOR CIVIL PROJECTS SUCH AS THE BIRCH HILL PROJECT OF RECORDING DEEDS BEFORE SATISFYING LIENS AND MAKING PAYMENT TO THE VENDOR AND THAT IT WAS THE PRACTICE TO SUBMIT THE RECORDED DEED TO THE UNITED STATES ATTORNEY FOR APPROVAL AFTER WHICH ALL OF THE OUTSTANDING LIENS WOULD BE SATISFIED AND PAYMENT MADE TO THE VENDOR.

IN THE ABSENCE OF FRAUD OR A SPECIFIC PROVISION THAT THE FAILURE TO PERFORM SHOULD BE A CONDITION OF FORFEITURE OR IN ANY WAY AFFECT ITS VALIDITY, A DEED WHICH IS OTHERWISE VALID WILL NOT BE INVALIDATED OR SET ASIDE BECAUSE THE GRANTOR HAS NOT RECEIVED THE CONSIDERATION RECITED THEREIN. INVESTMENT AND SECURITIES CO. V. ADAMS ET AL., 72 P./2D) 288; MCCREARY V. EDWARDS, 172 A. 166; MYRICK ET AL. V. LEWIS ET AL. 128 S.E. 198; GILBERT ET AL. V. RUGGLES ET AL., 178 N.W. 340; BRINKERHOFF ET AL. V. JUDEN ET AL., 164 S. W. 523. SEE ALSO 18 C. J. 168. NOR IS POSSESSION OF THE PROPERTY BY THE GRANTEE ESSENTIAL TO THE VESTING OF TITLE IN THE GRANTEE AS ACTUAL ENTRY UPON THE LAND IS NOT NECESSARY TO GIVE SEIZIN OR INVESTITURE OR TO GIVE A MORE PERFECT TITLE; THE RIGHT OF POSSESSION BEING AN INCIDENT TO AND GROWING OUT OF THE TITLE. HALL V. EDWARDS, 222 S.W. 167.

THE ACCEPTANCE BY THE GOVERNMENT WITHIN THE TIME SPECIFIED IN THE ADMINISTRATOR'S PROPOSAL FORMED THE BASIS OF A CONTRACT OF SALE BINDING UPON BOTH PARTIES. BOYDEN V. HILL ( MASS.), 85 N.E. 413; O-BRIEN V. BOLAND ( MASS.) 44 N.E. 602; WHEATLAND V. SILSBEE ( MASS.), 34 N.E. 192. THERE IS NOTHING IN THE CONTRACT OF SALE REQUIRING PAYMENT OF THE PURCHASE PRICE AS A CONDITION PRECEDENT TO THE TRANSFER OF TITLE. ON THE CONTRARY, UNDER PARAGRAPH 2 OF SAID CONTRACT, QUOTED ABOVE, PAYMENT OF THE PURCHASE PRICE IS NOT REQUIRED UNTIL TITLE HAS BEEN FOUND SATISFACTORY BY THE GOVERNMENT. THE RECORD OF THE TRANSACTION AS PRESENTED IN YOUR LETTER AND ENCLOSURES EVINCES AN UNEQUIVOCAL INTENTION ON THE PART OF THE GRANTOR THAT THE DEED SHOULD OPERATE AS A CONVEYANCE WHEN IT WAS DELIVERED TO THE DISTRICT ENGINEER, SUBJECT TO ACCEPTANCE BY THE GOVERNMENT AS TO FORM. THE DEED, WHICH WAS NOT SUBJECT TO RECALL BY THE VENDOR, WAS ACCEPTED BY THE GOVERNMENT AND WAS ACTUALLY RECORDED THE DAY BEFORE THE FIRE; AND WHILE BOTH THE RECORDING AND THE PHYSICAL DELIVERY OF THE DEED ARE BUT PRIMA FACIE EVIDENCE OF DELIVERY, THE PRESUMPTION OF DELIVERY ARISING THEREFROM IS SO STRONG AND PERSUASIVE THAT ONLY CLEAR AND SATISFACTORY EVIDENCE WILL OVERCOME SUCH PRESUMPTION. HUXLEY V. LIESS ET AL., 285 N.W. 216; TAYLOR V. O BARR, 6 SO.2D. 414; BELLIN V. BLOOM, 28 N.E. (2D) 53.

THERE IS NOTHING IN YOUR LETTER OR THE ENCLOSURES SHOWING ANY DISPOSITION ON THE PART OF THE GOVERNMENT OR THE GRANTOR TO INVALIDATE OR TO SET ASIDE THE DEED AND NO LEGAL BASIS IS SHOWN FOR SETTING ASIDE THE TRANSACTION OR FOR RELIEVING THE GOVERNMENT FROM PAYMENT OF ANY PART OF THE PURCHASE PRICE.

ACCORDINGLY, I HAVE TO ADVISE THAT PAYMENT ON THE VOUCHER IN THE AMOUNT OF $2,000, THE AMOUNT CLAIMED THEREON, IS AUTHORIZED IF OTHERWISE CORRECT.