A-31080, MARCH 31, 1930, 9 COMP. GEN. 421

A-31080: Mar 31, 1930

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THERE IS NO AUTHORITY UNDER THE APPROPRIATION ACT PROVIDING ONLY FOR THE PURCHASE OF LAND. TO THE DATE THE DEED WAS ACTUALLY APPROVED BY THE ATTORNEY GENERAL. AS FOLLOWS: YOUR ADVICE IS REQUESTED CONCERNING THE MATTER OF PAYMENT OF A RENTAL CLAIM ON BEHALF OF ALBERT AND ANNA CHIZEK. THE MATERIAL FACTS IN THE CASE ARE AS FOLLOWS: THE INTERIOR DEPARTMENT APPROPRIATION ACT OF MARCH 4. THE SUPERINTENDENT REPORTS THAT IT WAS TO THE EFFECT THAT IF FINAL PAYMENT WAS DELAYED ANY LENGTH OF TIME HE WOULD RECOMMEND THAT A CLAIM FOR RENTAL BE ALLOWED. UPON THIS UNDERSTANDING THE SUPERINTENDENT WAS GIVEN POSSESSION OF THE LAND IN ORDER TO CULTIVATE AND PLANT THE SAME. CHIZEK COULD HAVE DENIED THE GOVERNMENT POSSESSION OF THE TRACT UNTIL PAYMENT OF THE PURCHASE PRICE WAS MADE.

A-31080, MARCH 31, 1930, 9 COMP. GEN. 421

PURCHASE OF LAND BY THE GOVERNMENT - RENT - INTEREST WHERE A DELAY OCCURS IN THE CONSUMMATION OF AN EXECUTORY CONTRACT FOR THE PURCHASE OF LAND BY THE GOVERNMENT, CAUSED BY FAILURE OF THE VENDOR IN THE FIRST INSTANCE TO FURNISH A SATISFACTORY TITLE, THERE IS NO AUTHORITY UNDER THE APPROPRIATION ACT PROVIDING ONLY FOR THE PURCHASE OF LAND, FOR THE PAYMENT OF RENT OR INTEREST FROM THE DATE INFORMALLY SET BY THE PARTIES TO THE AGREEMENT AS A REASONABLE TIME IN WHICH TO CONSUMMATE THE TERMS OF THE CONTRACT, TO THE DATE THE DEED WAS ACTUALLY APPROVED BY THE ATTORNEY GENERAL, AS PROVIDED BY SEC. 355 OF THE REVISED STATUTES.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE INTERIOR, MARCH 31, 1930:

THERE HAS BEEN RECEIVED YOUR LETTER OF MARCH 20, 1930, AS FOLLOWS:

YOUR ADVICE IS REQUESTED CONCERNING THE MATTER OF PAYMENT OF A RENTAL CLAIM ON BEHALF OF ALBERT AND ANNA CHIZEK. THE MATERIAL FACTS IN THE CASE ARE AS FOLLOWS:

THE INTERIOR DEPARTMENT APPROPRIATION ACT OF MARCH 4, 1929, APPROPRIATED CERTAIN SUMS FOR THE WAHPETON INDIAN SCHOOL, WAHPETON, NORTH DAKOTA, INCLUDING "FOR PURCHASE OF LAND, $8,500.' SOON AFTER THIS ENACTMENT THE SUPERINTENDENT OF THE SCHOOL REACHED AN ORAL AGREEMENT WITH THE CLAIMANTS CONCERNING THE TERMS INVOLVED IN THE PURCHASE FROM THEM BY THE GOVERNMENT OF CERTAIN LAND, APPROXIMATING 80 ACRES. IN CONNECTION WITH THE ORAL UNDERSTANDING, THE SUPERINTENDENT REPORTS THAT IT WAS TO THE EFFECT THAT IF FINAL PAYMENT WAS DELAYED ANY LENGTH OF TIME HE WOULD RECOMMEND THAT A CLAIM FOR RENTAL BE ALLOWED. IT APPEARS FROM THE CORRESPONDENCE THAT BOTH THE SUPERINTENDENT AND THE GRANTORS UNDERSTOOD THAT A REASONABLE LENGTH OF TIME IN WHICH TO MAKE PAYMENT WOULD BE UNTIL JULY 1, 1929. UPON THIS UNDERSTANDING THE SUPERINTENDENT WAS GIVEN POSSESSION OF THE LAND IN ORDER TO CULTIVATE AND PLANT THE SAME, AND IN THIS CONNECTION HE INVITES ATTENTION TO THE FACT THAT MR. AND MRS. CHIZEK COULD HAVE DENIED THE GOVERNMENT POSSESSION OF THE TRACT UNTIL PAYMENT OF THE PURCHASE PRICE WAS MADE. IN SUCH CASE NO CROP COULD HAVE BEEN SECURED THEREFROM DURING THE CALENDAR YEAR 1929.

A DEED EXECUTED BY THE GRANTORS HAD BEEN PRESENTED, BEARING DATE OF JANUARY 25, 1929. AN ABSTRACT WAS SECURED AND THE MATTER PRESENTED TO THE ATTORNEY GENERAL IN ACCORDANCE WITH THE REQUIREMENTS OF SEC. 355, REVISED STATUTES. THE FIRST DEED WAS DEEMED INSUFFICIENT AND THE SECOND DEED WAS DATED JULY 22, 1929, WHICH WAS LATER ACCEPTED AND RECORDED IN THE OFFICE OF THE REGISTER OF DEEDS OF RICHLAND COUNTY, NORTH DAKOTA,ON OCTOBER 14, 1929. IT WILL BE READILY UNDERSTOOD THAT DELAY WAS INVOLVED IN EXAMINATION OF TITLE TO THE PROPERTY.

PAYMENT WAS NOT, IN FACT, MADE TO THE GRANTORS UNTIL NOVEMBER 14ENSUING. CLAIM FOR RENTAL COVERS THE PERIOD FROM JULY 1 TO NOVEMBER 13, 1929, IN THE SUM OF $177.33. IN ARRIVING AT THIS AMOUNT, IT WAS FOUND THAT AT PREVAILING LOCAL RENTAL RATES THE 80 ACRES IN QUESTION WOULD RENT FOR APPROXIMATELY $320 PER YEAR, BUT THE CLAIMANTS VOLUNTARILY REDUCED THE AMOUNT TO THE SUM GIVEN ABOVE, BASING THIS MERELY UPON INTEREST AT 6 PERCENT UPON $8,000, THE AMOUNT OF THE CONSIDERATION.

UNDER THE CIRCUMSTANCES IN THIS CASE, YOUR DECISION IS REQUESTED AS TO THE LEGALITY OF PAYMENT OF THE RENTAL SO CLAIMED. LEGALITY OF PAYMENT OF THE RENTAL SO CLAIMED.

SECTION 355, REVISED STATUTES, PROVIDES:

NO PUBLIC MONEY SHALL BE EXPENDED UPON ANY SITE OR LAND PURCHASED BY THE UNITED STATES FOR THE PURPOSES OF ERECTING THEREON ANY ARMORY, ARSENAL, FORT, FORTIFICATION, NAVY YARD, CUSTOMHOUSE, LIGHTHOUSE, OR OTHER PUBLIC BUILDING, OF ANY KIND WHATEVER, UNTIL THE WRITTEN OPINION OF THE ATTORNEY GENERAL SHALL BE HAD IN FAVOR OF THE VALIDITY OF THE TITLE, NOR UNTIL THE CONSENT OF THE LEGISLATURE OF THE STATE IN WHICH THE LAND OR SITE MAY BE, TO SUCH PURCHASE, HAS BEEN GIVEN. THE DISTRICT ATTORNEYS OF THE UNITED STATES, UPON THE APPLICATION OF THE ATTORNEY GENERAL, SHALL FURNISH ANY ASSISTANCE OR INFORMATION IN THEIR POWER IN RELATION TO THE TITLES OF THE PUBLIC PROPERTY LYING WITHIN THEIR RESPECTIVE DISTRICTS. AND THE SECRETARIES OF THE DEPARTMENTS, UPON THE APPLICATION OF THE ATTORNEY GENERAL, SHALL PROCURE ANY ADDITIONAL EVIDENCE OF TITLE WHICH HE MAY DEEM NECESSARY AND WHICH MAY NOT BE IN THE POSSESSION OF THE OFFICERS OF THE GOVERNMENT, AND THE EXPENSE OF PROCURING IT SHALL BE PAID OUT OF THE APPROPRIATIONS MADE FOR THE CONTINGENCIES OF THE DEPARTMENTS RESPECTIVELY.

IT HAS BEEN HELD THAT THE PROVISIONS OF THIS SECTION ARE APPLICABLE TO ALL LAND PURCHASED BY THE UNITED STATES FOR WHATEVER PURPOSE. SEE 1 COMP. GEN. 625, 28 OP.ATTY.GEN. 413. AND SAID PROVISIONS BECAME A PART OF EVERY CONTRACT FOR THE PURCHASE OF LAND FOR THE GOVERNMENT. 9 OP.ATTY.GEN. 100. IT MUST BE PRESUMED THAT IN ALL SUCH CASES SOME TIME WILL BE REQUIRED IN WHICH TO MAKE THE NECESSARY EXAMINATION AS TO THE VALIDITY OF TITLE AND THAT, NECESSARILY, THERE WILL BE SOME DELAY IN PAYMENT OF THE PURCHASE PRICE. IT HAS BEEN HELD THAT DELAY BY THE ATTORNEY GENERAL IN PASSING ON TITLE IS NO GROUND FOR DAMAGES UNLESS THE DELAY WAS CONTUMACIOUS OR UNREASONABLE AND INDUCED BY THE GOVERNMENT. MERCHANTS' EXCHANGE COMPANY V. UNITED STATES, 1 CT.CLS. 332.

PERMISSION TO ENTER ON THE LAND HERE INVOLVED WAS APPARENTLY GRANTED UNDER AN EXECUTORY CONTRACT TO PURCHASE AND THE OCCUPANCY AND USE OF THE THE LAND BY THE GOVERNMENT DATES FROM SOME TIME PRIOR TO JULY 1, 1929, THE DATE NOW ALLEGED TO HAVE BEEN INFORMALLY SET BY THE PARTIES TO THE AGREEMENT AS A REASONABLE TIME IN WHICH TO CONSUMMATE THE TERMS OF THE CONTRACT. THE CLAIM APPEARS TO BE BASED ON THE USE AND OCCUPANCY OF THE LAND BY THE GOVERNMENT FROM JULY 1 TO NOVEMBER 13, 1929, AND AN ALLEGED ORAL AGREEMENT OR UNDERSTANDING THAT IF THE PAYMENT OF THE PURCHASE PRICE WERE NOT MADE BY JULY 1, 1929, SOME ALLOWANCE WOULD BE MADE FOR RENT THEREAFTER.

IT APPEARS FROM YOUR SUBMISSION THAT WHATEVER DELAY WAS INVOLVED IN THIS CASE WAS CAUSE PRIMARILY BY THE FAILURE OF THE VENDOR IN THE FIRST INSTANCE TO FURNISH A SATISFACTORY TITLE AS WAS CONTEMPLATED BY THE TERMS OF THE AGREEMENT.

THERE IS NO LIABILITY TO PAY RENT FOR USE AND OCCUPATION OF LAND WHERE THE LAND IS OCCUPIED UNDER AN EXECUTORY CONTRACT OF PURCHASE, IN THE ABSENCE OF A DEFINITE UNDERSTANDING TO THAT EFFECT BETWEEN THE PARTIES. SEE CARPENTER V. UNITED STATES, 17 WALL. 489; ALSO DECISION OF THIS OFFICE OF OCTOBER 23, 1928, A-23622.

WHILE THERE APPEARS TO HAVE BEEN SOME ORAL UNDERSTANDING THAT IF PAYMENT WERE DELAYED ANY LENGTH OF TIME, THE SUPERINTENDENT WAS TO RECOMMEND PAYMENT OF RENTAL, THIS DID NOT IN ANY WAY OBLIGATE THE UNITED STATES TO PAY RENT. WHILE IT DOES NOT DEFINITELY APPEAR THAT THE SUPERINTENDENT AGREED TO PAY RENT OR INTEREST IN THE EVENT FINAL PAYMENT WAS DELAYED, IF SUCH AN AGREEMENT WAS MADE IT WAS CLEARLY BEYOND THE SCOPE OF THE SUPERINTENDENT'S AUTHORITY IN THE MATTER, AND THE UNITED STATES IS LIABLE ONLY TO THE EXTENT OF POWER IT HAS ACTUALLY GIVEN ITS AGENTS. SEE DECISION OF THIS OFFICE OF JUNE 27, 1925, A-9251.

IT IS EQUALLY WELL SETTLED THAT THE UNITED STATES IS NOT LIABLE FOR INTEREST ON ACCOUNT OF DELAY IN PAYMENT OF ITS OBLIGATIONS UNLESS THE PAYMENT OF SUCH INTEREST BE SPECIFICALLY PROVIDED FOR IN A STATUTE OR IN A CONTRACT AUTHORIZED BY LAW. 5 COMP. GEN. 649; 8 ID. 110; HARVEY V. UNITED STATES, 113 U.S. 243; SHECKLES V. DISTRICT OF COLUMBIA, 246 U.S. 338, AND SEE UNITED STATES V. NORTH CAROLINA, 136 U.S. 211, WHERE IN THE OPINION DELIVERED BY JUSTICE GRAY, IT IS STATED AT P. 216:

INTEREST, WHEN NOT STIPULATED FOR BY CONTRACT, OR AUTHORIZED BY STATUTE, IS ALLOWED BY THE COURTS AS DAMAGES FOR THE DETENTION OF MONEY OR PROPERTY, OR OF COMPENSATION, TO WHICH THE PLAINTIFF IS ENTITLED; AND, AS HAS BEEN SETTLED ON GROUND OF PUBLIC CONVENIENCE, IS NOT TO BE AWARDED AGAINST A SOVEREIGN GOVERNMENT, UNLESS ITS CONSENT TO PAY HAS BEEN MANIFESTED BY AN ACT OF ITS LEGISLATURE, OR BY A LAWFUL CONTRACT OR ITS EXECUTIVE OFFICERS. UNITED STATES V. SHERMAN, 98 U.S. 565; ANGARICA V. BAYARD, 127 U.S. 251, 260, AND AUTHORITIES THERE COLLECTED; IN RE GOSMAN 17 CH.D. 771.

THE ITEM OF APPROPRIATION HERE INVOLVED,"INDIAN BOARDING SCHOOLS 1929 AND 1930 ( 49/0 820)" PROVIDES ONLY FOR THE PURCHASE OF LAND AND CONTAINS NO AUTHORITY FOR THE PAYMENT OF RENT OR INTEREST.