#### MARY E. BOFINGER v. THE UNITED STATES.

No. 10728

February 19, 1883.

Congress, by *Act of March*3, 1875, chap. 215 (18 Stat. L., 662), directed tbe Secretary of tbe Treasury to pay to tbe owners of a steamer a sum of money therein appropriated in. full for all claims for tbe use of tbe vessel by tbe Navy Department and for damages thereto.

Tbe claimant presented bis claim, tbe same as now sued upon, as one of tbe owners of the vessel, to tbe Secretary of tbe Treasury. His claim was rejected, and tbe Secretary distributed all tbe money to other parties whom be decided to be tbe owners.

He attempts to prove bis title as alleged owner solely by a deed from a former owner, by depositions of that person and two other persons who bad been part owners.

Before tbe giving of this deed, if admitted in evidence, the former owner bad, by an unrecorded deed, conveyed bis interest to a different person, who took possession of her; and while in his possession sbo passed into tbe control of tbe Confederate authorities by impressment.

Tbe original enrollment was at the port of Cincinnati. Tbe claimant’s deed was not recorded there, but was recorded at tbe port of Saint Louis.

Held :

I.Where no contract to pay for the use of a vessel is shown except that created by an act of Congress *{Act of March*3,1875, 18 Stat. L., 662) directing the Secretary of tbe Treasury to pay to tbe owners thereof tbe amount there appropriated, and tbe Secretary bears the parties, decides who are owners, and pays out all tbe money to them, this court has no j urisdiction to review the action of tbe Secretary, and a rejected claim in such case has no standing in this court.

II.Previous owners, through whom a claimant derives bis title, claim, or right sued upon, cannot be witnesses to support such claim. (Bev. Stat., § 1079.)

III.A claimant who derives his title to a vessel through a deed not recorded at tbe port of enrollment takes bis title subject to tbe superior rights of one having a prior unrecorded deed accompanied by possession. (Bev. Stat., § 4192.)

*149The following are the facts as found by the court:

I. On the 17th of January, 1861, the steamboat Clara Dolsen was the property of William T. Dunning, A. P. Stewart, and S. S. Edwards, all of Saint Louis, Mo., and citizens of the United States, the first owning nine-sixteenths, the second five-sixteenths, and the last two-sixteenths.

The said steamboat was constructed and finished in Cincinnati about that time, and was on that day enrolled at the port of Cincinnati, and a certificate of enrollment given, of which the following is a copy: '

*Enrollment No.*91.

Enrollment in conformity to an act of tlie Congress of the United States of America entitled “An act for enrolling and licensing ships or vessels to he employed in the coasting trade and fisheries, and for regulating the same.”

William T. Dunning, of Saint Louis, Mo., having taken or subscribed the oath required by the said acts, and having sworn that he owns (tk) nine-sixteenths, A. P. Stewart, of the same place, owns (-,^) five-sixteenths, and S. S. Edwards, of said place, owns *(fy)*two-sixteenths, and are citizens of the United States, sole owners of the ship or vessel called the Clara Dolsen, of Cincinnati, whereof William T. Dunning is at present master, and. a^ he hath sworn, is a citizen of the United States; and that the said ship or vessel was built at Cincinnati, in the State of Ohio, in the year 1861, and is now new; and the undersigned, surveyor of the port of Cincinnati, having certified that the said ship or vessel has one deck and no mast, and that her length is 268 feet-inches, her breadth 42 feet-inches, her depth 8 feet 9 inches, that she measures nine hundred and thirty-nine and futons, viz: and that she is a steamer, has a plain head, and a transom stern, with tuck; no gallery. And the said William T. Dunning having agreed to the description and measurement above specified, and sufficient security having been given, according to the said acts, the said steamer has been duly enrolled at the port of Cincinnati.

Given under my hand and seal, at the port of Cincinnati, in the district of-, this seventeenth day of January, in the year one thousand eight hundred and sixty-one.

1 SEAL. CUSTOM-HOUSE, ) T. JEEEBRSON SHERLOCK,

{ CINCINNATI. 5 *Surveyor of Customs.*

II. Tlie said steamboat was employed iu tlie Saint Louis and New Orleans trade at the outbreak of tlie rebellion. On tbe 1st of May, 1861, sbe was laid up at Memphis, from which place she was forcibly taken by the Confederate authorities and put into their military service.

III. One George W. Cable, of Saint Louis, and the said A. P. Stewart were in New Orleans on or about the 26th day of February, 1862. On that day Stewart sold and conveyed to *150said Cable Ms interest in said steamboat by an instrument of wMch the following is a copy :

Know all men by those presents, that I, A. P. Stewart, of tile city of New Orleans, State of Louisiana, owner of five-sixteenths of the steamer called the Clara Dolsen, of the burden of nine hundred and thirty-nine tons & §fths, for and in consideration of the sum of seventeen thousand one hundred &■ eighty-seven dollars and fifty cents cash to me in hand paid by George W. Cables, of Saint Louis County, State of Missouri, the receipt whereof is hereby acknowledged, have, and by these presents do grant, bargain, sell, assign, transfer, and set over to the said George W. Cables the said five-sixteenths of said steamer Clara Dolsen, the said George W. Cables assuming the payment of all claims against said interest, together with five-sixteenths of all and singular her anchors, cables, boats, tackle, apparel, and appurtenances. Which said vessel is registered in the port of New Orleans, in the words following, to wit:

No. 117.

CONFEDERATE STATES OF AMERICA.

*Enrollment.*

Enrollment in conformity to an act of the Congress of the Confederate States of America, adopted 9th February, 1861, continuing in force the laws authorizing the enrolling and licensing of ships and vessels.

A. P. Stewart, of New Orleans, State of Louisiana, having taken or subscribed the oath or affirmation required by law, and having sworn that he owns *-fa,*William T. *Dunning-fe,*of the same place, and S. S. Edwards -ft-, of New Orleans, State of Louisiana, are sole owners of the ship or vessel called the Clara Dolsen, of New Orleans, whereof W. T. Dunning is at present master, and, as he hath sworn, is a citizen of the Confederate States of America, and the said ship or vessel was built at Cincinnati, State of Ohio, in the year eighteen hundred and sixty-one, as per U. S. enrollment No. 91, issued at the port of Cincinnati, 16 Jan’y, 1861, now surrendered, and said enrollment haviDg certified that the said ship or vessel has one deck, and no mast, and that her length is two hundred sixty-eight feet inches, her breadth forty-two feet inches, her depth eight feet nine inches, and that she measures nine hundred thirty-nine and $fth tons; that she is a steamer, has transom stem, with truck, no galleries, and plain head.

And the said A. P. Stewart having agreed to the description and admeas-urement above specified, and sufficient security having been given, according to law, the said steamer has been duly enrolled at the port of New Orleans.

Given under our hands and seal at the port of New Orleans this 21st day of May, in the year one thousand eight hundred and sixty-one.

[seal.] Thom. Shields,

*JD’y Golleotor.*

P. O. Labatut,

*JD’y Naval Offieer.*

*151To have and to hold the said five-sixteenths of the said steamer Clara Dolsen onto the said George W. Cables, his heirs, his executors, administrators, and assigns, forever.

And I, the said A. P. Stewart, for myself, my heirs, executors, and administrators, do hereby covenant and agree to and with the said George W. Cables, his heirs, his executors, administrators, and assigns, that at the execution of these presents I am the true and lawful owner of the said five-sixteenths of said steamer Clara Dolsen, of N. Orleans, and appurtenances, and that I now have full right and authority to sell and dispose of the same.

In witness whereof I have hereunto set my hand and seal at the city of New Orleans, the twenty-sixth day of February, in the year of our Lord one thousand eight hundred and sixty-two.

The words “freed from and cleared of all claims, incumbrances, or do-mands whatsoever” erased in presence of the parties.

A. P. Stewart.

Geo.,W. Cable.

Signed, sealed, and delivered in the piresence of—

C. B. H. Dltlessis.

D. Lopez.

Custom-House, *New Orleans.*

Received for record this 27th day of Feb’y, 1862, at 30 minutes past 1 o’clock p. m.

Recorded in book G, page 192.

D. L.,

*Register of Sales.*

IV. Cable on the next day purchased a one-sixteenth interest from Dunning, who, as master of the boat, had accompanied-her from Saint Louis, and thereupon Cable was, on the 27th February, pat in possession of the boat. These purchases were made by Cable with money in his hands belonging to Edward Walsh, a citizen and resident of Saint Louis, and for his use and benefit. Subsequently Cable conveyed to Walsh the title thus acquired.

V. After taking possession of the boat, Cable put George Sparhawk on as captain, and Dunning and Steward had nothing more to do with her. On the 28th of February she left New Orleans with Sparhawk on board as captain, but under the seizure and instructions of the Confederate authorities. Sparhawk re. mained on board until the Confederate authorities gave her up, a short time before the fall of Memphis. Then Cable put Jones on board of her as captain, with instructions to secrete the boat and after Memphis should fall to proceed up the river until he met the Federal forces, to whom he should surrender the boat and let them take care of her until Cable should come down.

*152The Federal forces, however, seized her in her hiding place, while Captain Jones was still in charge of her. From the time of said seizure, about the 5th of July, 1862, until May, 1864, the boat remained in the possession and use of the naval authorities of the United States, with the exception of a short period.

VI. On the 31st day of July, 1862, a libel was filed in the district court of the United States for the southern district of Illinois against said vessel, for the reason, as stated in said libel, that she had been used, by the knowledge and consent of the owner, in aiding the rebellion, contrary to the Act of August 6, 1861. After due publication, Edward Walsh, Samuel S. Edwards, and William T. Dunning appeared as claimants, the vessel was appraised, and bond given by them.

In May, 1864, the vessel came to the possession of the marshal, and was by him delivered to Edward Walsh, Samuel S. Edwards, and William T. Dunning, and on the 19th of January, 1865, the vessel was declared forfeited, and judgment entered against the said Walsh, Edwards, Dunning, and their sureties in the sum of $45,000, the amount of their bond.

VII. On the 23d January, 1865, Walsh, Dunning, and Edwards made application for a remission of the forfeiture, on the ground that they were loyal citizens of the United States, and that when the rebels took her she was beyond the control of the petitioners. The court, having heard proofs in support of the petition, recommended remission, and on the 26th July, 1865, the Secretary of the Treasury, being satisfied that they were loyal citizens of the United States, remitted to Edward Walsh, W. T. Dunning, and S. S. Edwards all the right, claim, and demand of the United States to the Clara Dolsen, and directed that the bond given by them should be canceled.

VIII. On account of the dilapidated condition of the boat at the time of the surrender, Edward Walsh expended about $30,000 in her repairs. Walsh bought out the interest of Dunning and Edwards, and from May, 1864, until July, 1866, the vessel remained in the undisputed possession of the said Walsh and his legal representatives. In 1866 she was sold at public sale by Walsh’s administrators. Neither A. P. Stewart nor any assignee of his, except through Cable, ever made any demand for possession of the Clara Dolsen for participation in her freights or for a share in the proceeds of said sale. At *153tbe time of the sale the expenditures on the boat exceeded the receipts both from the freights and sale at least $115,000.

IX. On the 24th day of May, 1864, the said steamer was enrolled at the port of Saint Louis, and the following is a copy of the enrollment:

*Enrollment No.*53.

Enrollment in conformity to an act of the Congress of the United States of America entitled “An act for enrolling and licensing ships orvessels to he employed in the coasting trade and fisheries, and for regulating the same.”

Edward Walsh, of Saint Louis, State of Missouri, having taken or subscribed the oath required by the said acts, and having sworn that ho, owner of nine-sixteenths of the steamer herein named, S. S. Edwards owns one-eighth, and Mary E. Bofinger, through her trustee, Samuel Stillwell, is recorded owner of five-sixteenths, but is claimed by said Edward Walsh, all of the persons named of Saint Louis, and all are citizens of the United States, sole owners of the ship or vessel called the Clara Dolson, of Saint Louis, whereof S. S. Edwards is at present master, and, as he hath sworn, is a citizen of the United States; and that the ship or vessel was built at Cincinnati, Ohio, in the year 1861, as appears by her certificate of enrollment No. 91, issued at Cincinnati, the 17th January, 1861, now surrendered on change of owners; and the said certificate of enrolment having certified that the ship or vessel has one deck and no mast, and that her length is 268 feet, her breadth 42 feet, her depth 8 feet 9 inches; that she measures 939 and $!- tons, viz, and that she is a steamer, has a plain head and a transom stern, with tuck; no gallery.

And the said Edward Walsh having agreed to the description and ad-measurement above specified, and sufficient security having been given, according to the said acts, the said steamboat has been duly enrolled at the port of Saint Louis.

Given under my hand and seal at the port of Saint Louis, in the district of -, this twenty-fourch day of May, in the year one thousand eight hundred and sixty-four.

< seal, custom-house, *}*E. J. Howard,

< saint louis. 5 *Surveyor of Customs.*

By John *Samson, Deputy.*

X. On the 7th clay of July, 1864, the said steamer was again enrolled at the port of Saint Louis. The following is a copy of said last-named enrollment:

*Enrollment No.*46.

Enrollment in conformity to an act of the Congress of the United States of America entitled, “An act for enrolling and licensing ships or vessels to be employed in the coasting trade and fisheries, and for regulating the same,” approved February 18, 1793, and of “An act to regulate the ad-measurement of- tonnage of ships and vessels of the United States,” approved May 6, 1864.

*154Edward Walsh, of Saint Louis, having taken or subscribed the oath required by the said acts, and having sworn that he is owner of nine-sixteenths of the steamer herein named, S. S. Edwards owns one-eighth, Mary Bofmger, through her trustee, Samuel Stillwell, is recorded owner of five-sixteenths, but is claimed by Edward Walsh, all of Saint Louis, and aliare citizens of the United States, sole owners of the ship or vessel called the Clara Dolson, of Saint Louis, whereof Thomas Franey is at present master, and, as he hath sworn, is a citizen of the United States : and that the said ship or vessel was built at Cincinnati, Ohio, in the year 1861, as appears by her certificate of enrollment, No. 53, issued at Saint Louis, May ¡24, 1864, now surrendered for readj ustment; and the deputy surveyor having certified that the said ship or vessel has one deck and no mast, and that her length is 269 feet, her breadth 42j5j feet, her depth 8-ft feet, her height-feet; that she measures one thousand and ninety-nine and ninety-one hundredths tons, viz:

Tons. lOOtbs.

Capacity under tonnage-deck. 792 60

Capacity between decks above tonnage-deck. 307 30

Capacity of inclosures on the upper deck, viz.

Total tonnage. 1,099 90

And that she is a steamer, has a plain head and a transom stern; cabin on deck. Having agreed to the description and admeasurement above specified, and sufficient security having been given, according to the said acts, the said steamer has been duly enrolled at the port of Saint Louis, Mo.

Given under my hand and seal at the port of Saint Louis, in the district of-, this seventh day of July, in the year one thousand eight hundred and sixty-five.

K. J. Howard,

*Surveyor of Customs.*

XI. It does not appear from any admissible, evidence that the claimant was ever the owner of five-sixteenths interest, as alleged in her petition, or of any other interest in the said steamer Clara Dolsen.

XII. The claimant laid claim to a portion of the $22,050 appropriated by the Act of March 3, 1875, to the owners of the steamer Clara Dolsen in full of all claims for the use of said vessel by the Navy Department, and for all claims for damages to said vessel and furniture while in the service of the Government, and said claim was rejected by the Secretary of the Treasury, and no portion of the money was paid to her, but all the said money has been paid out as follows:

To Edward Walsh. $8,268 75

To William T. Dunning. 11,025 00

To S. S. Edwards. 2,756 25

Total. 22,050 00

*155*Mr. JEdmunS C. Blunt*for tbe claimants.

1. The principal question involved in this cause is whether or not the petitioner was a part “owner” of the steamer Clara Dolsen, within the meaning of the Act of Congress of March 3, 1875, chap. 215 (18 Stat. L., 662). The full amount of the appropriation was paid by the Treasury Department to three other claimants. William F. Dunning was paid eight-sixteenths, Edward Walsh six-sixteenths, and S. S. Edwards two-sixteenths.

The petitioner purchased the five-sixteenths of the vessel on the 29th day of September, 1863, from A. P. Stewart, who was one of the original owners mentioned in the original enrollment of the vessel at Cincinnati, Ohio, of January, 1861. She paid him for her interest the sum of $1,000 in cash. The vessel was then in the hands of the officers of the court under the proceedings for condemnation, as stated in the second finding.

2. The title to this five-sixteenths share claimed by Walsh is made out as follows: When the vessel was in New Orleans in February, 1862, it is pretended that A. P. Stewart sold his entire interest to George W. Cable, and executed and delivered a conveyance thereof. This paper, it seems, was registered in the Confederate custom-house in New Orleans, but not elsewhere. At the time of this supposed transfer the vessel was in the hands of the Confederate military authorities. The money with which the interest of Stewart was purchased was derived from the sale of a steamboat called the John Walsh, the joint property of Cable and Edward Walsh. The John Walsh was sold for Confederate money, and when so sold was within the Confederate lines. Part of this money was invested in cotton and sugar at the same time. It does not appear that Edward Walsh was ever in the Southern Confederacy, and it appears that the entire transactions were conducted by Cable as the agent of Edward Walsh, and that the whole property was after-wards turned over by Cable to Walsh.

3. If it is a fact that Cable undertook, on Walsh’s behalf, to purchase the interest of A. P. Stewart, in New Orleans in February, 1862, with the Confederate money derived from the sale of the steamer John Walsh, then such a transaction was void by reason of the provision of the *Act of Congress 13thJuly,*1861 (12 Stat. L., 255), and the *Proclamation of the President of 16th**156*August*1861 (12 Stat., 1262), declaring those districts to be in rebellion. *[Montgomery's Gase,*5 0. 01s. It., 618; 15 Wall., 395; *Haler's*Gase, 5 C. Cls. B., 708; *Cramer's Gase,*7 *ibid.,*303; see, also, 6 Wall., 521, and *MeKee*v. *United States,*8 Wall., 163.)

4. The alleged bill of sale of the interest of Stewart, of February, 1862, was never recorded as the statute requires. The *Act of Congress*of 1850 (9 Stat. L., 440) in the first section prescribes “that no bill of sale, mortgage, hypothecation, or conveyancing of any vessel or part of any vessel of the United States shall be valid against any person other than the grantor or mortgagor, his heirs and devisees, and persons having actual notice thereof, unless such bill of sale, mortgage, hypothe-cation, or conveyance be recorded in the office of the collector of the customs where such vessel is registered or enrolled.” (Now'Bev. Stat., § 4192) This bill of sale was not recorded, nor is it pretended that it was recorded any place except in New Orleans by the Con federate authorities.

5. Edward Walsh, in 1864 and in 1865, on his oath, stated that Mary E. Bofinger was the owner of five-sixteenths of the vessel, but said he claimed that interest. The same statute above referred to provides that “the owners, or agent of the owner of any vessel of the United States, applying to the collector of the customs for a register or enrollment of a vessel *shall,*in addition to the oath now prescribed by law, set forth in the oath of ownership the part or proportion of such vessel belonging to each owner, and the same shall be inserted in the register of enrollment, and that all bills of sale of vessels registered or enrolled shall set forth the part of the vessel owned by each person selling, and the part conveyed to each person purchasing.”

6. For a proper understanding of the case it must be borne in mind that at the date of the libel, when the petition was filed, no legal title to any part of this vessel had vested in Edward Walsh, and, consequently, his assertion of title in the United States district court was without warrant.

On the 29th of September, 1863, Stewart conveyed to Mary E. Bofinger his five-sixteenth interest, and she was represented before the court through G. P. Strong, her attorney.

On the 18th of September, 1863, W. F. Dunning sold to D. S. Carter eight-sixteenths of his interest. Carter was, therefore, the legal owner of one-half of said steamer at that date; *157yet he was not represented before the court, although Edward Walsh must have known of the existence of this interest; he jrarchased it sometime afterward for a valuable consideration.

According to the two oaths of Walsh, filed in the Saint Louis custom-house, Dunning had no interest in May, 1864, nor in July, 1865; yet Dunning was paid by the Treasury eight-sixteenths of the whole appropriation, while Walsh received only six-sixteenths.

7. The acts of the part owners who appeared upon the record in defending against the libel and in procuring the judgment of condemnation to be vacated inured for the benefit of all the owners.

Part owners of a vessel are *tenants in common.*(1 Parsons on Mar. Law, 82; *Nicoll*v. *Mumford,*4 John., ch. 522.) The possession of a tenant in common will be deemed the possession of his co-tenant also, unless some notorious act of ouster is committed, or an absolute declaration to the contrary is made. *[McGlung*v. *Moss,*5 Wheat., 124.) And this declaration and act of ouster must be.brought home to the knowledge or notice of the others. *[Glymer*v. *MovMns,*3 How., 689.) Any act done by one of two tenants in common for the benefit of the property will inure to the common benefit. *[Motlncell*v. *Macees,*2 Black’s R., 681.) A part owner in charge of a ship is authorized to make any expenditure or to do any act necessary for the preservation or protection of the ship. (1 Parsons on Mar. Law, 89.)

*Mr. John S. Blair*(with whom was *Mr. Thomas Simons,*As- • sistant Attorney-General) for the defendants:

1. Involved in the authority to the Secretary of the Treasury to pay was the power to inquire and decide who were the owners of the vessel, and his determination of this mixed question of law and fact is final. *(United States*v. *Wright,*11 Wall., 648.)

The amount appropriated having been already paid out in accordance with the decision, the force of the statute is exhausted. The mere act of appropriation constituted no contract, express or implied; if it be said that the claim is founded upon a law of Congress, it is answered that the law giving the right designated also the tribunal. As was said in the *Nay-**158*craft Case*(10 O. Cls. B., 114; 22 Wall., 81), “Both the right and the remedy are therefore created by the same statute, and in such cases the remedy provided is exclusive of all others.”

2. The ownership of personal property is presumptively in the possessors (16 Pet., 125; 9 ibid., 682), and it is more reasonable to suppose that by the word “owners” Congress meant those who, during the very period for which appropriation was made; were in court publicly asserting their ownership of the vessel; those to whom, as owners, the vessel was delivered upon the termination of the use for which the appropriation was made; those who had been recognized by the court and the Secretary of the Treasury as owners, rather than to contemplate in a collateral proceeding an inquiry into a title which, lying dormant during the existence of the vessel, makes its only appearance for the purpose of securing a share in the appropriation.

3. The deed from Stewart to Cable, of the 26th of February, is a genuine deed, and under it Cable took possession, a possession which to this day has never been disturbed by Stewart or any one in privity with him. The purchase being for and in behalf of Walsh, a citizen of Saint Louis, the non-intercourse acts have no application, unless Stewart, at the time of the sale, had changed his domicile from Cincinnati to some point within the Confederacy. The burden of proving such change is upon claimant *(Mitchell*v. *United States,*21 Wall., 350), and although his presence within the Confederate lines abundantly appears, the *animus manendi*is not shown.

That the bill of sale in question was not recorded in the office in Cincinnati where the vessel was enrolled is true; that Mary Bofinger’s agents had no actual notice of its existence is not shown. But the court must conclude, from Stewart being out of possession, from the small consideration, from the absence of Stewart’s name from the record, and from the fact that Mrs. Bofinger, neither in court nor in the application for remission of the forfeiture, put in any appearance, that her agents had actual notice of the sale to Walsh.

But the claimant from 1863 to 1875 has treated the unrecorded bill of sale as valid, and never in any proceeding against *the parties holding it*has she asserted its invalidity.

It must be remembered, also, that the vessel, at the time of the purchase by Cable, although within the United States, was *159not so within a district of the United States as to enable Cable to comply with Revised Statutes, section 4159. He did the next best thing, however, by recording the bill of sale in the collector’s office of the Confederate States.

The important fact is that from the dáte of the purchase by Cable up to the alleged purchase by Bofinger the vessel was never at her home port, and that from the time she came within the lines of the United States Army until the alleged sale she was in the custody and control of the authorities of the United States.

OPINION.

Davis, J.,

delivered the opinion of the court:

The steamer Clara Dolsen was completed and enrolled at Cincinnati in January, 186L Among the owners, one A. P. Stewart is enrolled as owning five-sixteenths. The whole controversy is about his interest.

The vessel went down the river, and was at Memphis when hostilities broke out. Some time in June, 1861, she was impressed into the Confederate service. While she was in that service Stewart, in New Orleans, on the 26th day of February, 1862, sold and conveyed his interest to one Cable. No question is made of the legality of this transaction. Stewart denied the execution of the deed, but the court finds against him on that point. The deed was never recorded at the home port of enrollment.

The vessel then passed up the river, and the captain, under instructions, so managed that she fell into the bauds of the naval authorities of the United States. She was taken to Illinois and there libeled for confiscation. She remained thencefrom in the custody of the court, or in the service of the Government as a transport until 1865.

Meanwhile the proceedings took place which form the basis of the claimant’s title. Stewart followed the boat to the North, and some time in the year 1863 executed and delivered a deed to the claimant of five-sixteenths interest in said steamer, if the same can be proved by the depositions of David R. Powell, of Samuel Stillwell, and of Azariah P. H. C. Stewart which form part of the record. If those depositions are admitted they tend to prove the execution and delivery of the following deed

> *160*Bill of sale*— Stewart *to Bofinger*— Filed *for record Oet. 2nd,*1863.

> Know all *man*by these presents, that A. P. Stewart, in consideration of twelve thousand iive hundred dollars, to him paid by Mrs. Mary E. Bofin-ger, of Saint Louis, Mo., Samuel Stillwell, trustee, *the*receipt whereof is hereby acknowledged, has granted, bargained, and sold, and delivered, and by these presents do grant, bargain, sell, and deliver unto the said Mary E. Bofinger, her executors, administrators, and assigns forever, five-sixteenths of the steamer Clara Dolson — William Dunning is at present master — -together with her engine, tackle, and apparel of what name or nature soever, and all that to her belongs or in any way appertains, now lying at the port of-, and the certificate of whose enrollment is as follows, viz:

> *Enrollment.*— In conformity to an act of Congress of the United States of America, entitled “ An act for enrolling and licensing ships or vessels to be employed in the coasting trade and fisheries, and for regulating the same, Wm. F. Dunning, of St. Louis, Mo., having taken or subscribed the oath required by said act, andhaving sworn that he owns tV of the steamer herein named, A. P. Stewart owns and S. S. Edwards, of same place, owns *■£$,*and all are citizens of the United States and sole owners of the ship or vessel called the Clara Dolson, of St. Louis, whereof Wm. F. Dunning is at present master, and, as he hath sworn, is a citizen of the United States; and that said ship or vessel was built at Cincinnati, Ohio, in the year 1861, and is now new; and the undersigned, surveyor of the port of Cincinnati, having certified that said ship or vessel has one deck and no mast, and that her length is 268 feet, her breadth 42 feet, her depth 8 feet 9 inches, and that she measures 939$jj- tons, and that she is a steamer, has transom stern with truck, no gallery, and plain head. And the *the*said Wm. F. Dunning having agreed to the description and admeasurement above specified, and sufficient security having been given according to said act, the said steamer has been duly enrolled at Cincinnati.

> Given under my hand and seal at the port of Cincinnati this 17th day of January, in the year eighteen hundred and sixty-one.

> [OFFICIAL SISAL. ] T. JEFFERSON SHERLOCK,

> *Surveyor of Customs.*

> To have and to hold the said tV interest in said steamer, with the tackle and apparel, and every part thereof, to the said Mary E. Bofinger aforesaid, and the said A. P. Stewart doth covenant that he is the lawful owner of the same, has good right and lawful authority to sell it. In testimony whereof I, A. P. Stewart, have hereunto set my hand and seal this 29th day of September, in the year eighteen hundred and sixty-three.

> [seal.] A. P. Stewart.

> Signed, sealed, and delivered in presence of, *ss. :*

> W. DURHAM.

> J. Wilson Johnston.

> *161Custom-House, Poet oe St. Lours,

> *Aug. 6th,*1874.

> I hereby certify that the foregoing hill of sale and acknowledgment are a true and correct copy from the records of this port as contained in record-hook P, page 536.

> < OFFICIAL SEAL, SURVEYOR OF ) JOHN F. LONG,

> i customs, port OF st. louis. 5 ' *Surveyor and Act’g Col.*

The counsel for the Government moves to strike out these depositions on the ground of interest;- and moves to strike out the proofs of the deed on the ground that no foundation is laid for secondary proof.

Powell and Stillwell were partners under the firm of Stillwell, Powell & Go. The alleged interest of each appears in the following extract from Powell’s testimony:

> Question. Did I understand you to say that you have no interest in the claim which is the subject of the present inquiry?

> Answer. I will state in explanation of my answer that at the time of the purchase in this vessel by Mrs. Bofinger, that I have mentioned, we were interested with her in the purchase, owning half of the interest which stood in her name. We had interests also.in a number of other vessels. Ten years subsequent to the purchase of this interest, when the firm of Still-well, Powell & Co. having failed and gone through bankruptcy, this interest was accounted, and there was an indebtedness due or claimed on open account which, if anything came out of it, would olfset such indebtedness; that is the state of the facts.

> Question. What was the nature of the interest which you have said you had or have in this claim, and how did it arise?

> Answer. The interest was equally divided, one-half being in Mrs. Bofin-ger and the other half in the firm of Stillwell, Powell & Co. The firm and Mrs. Bofinger were largely interested in vessels doing business on the Western rivers, and it was often the case that the title was both in the firm and in Mrs. Bofinger, or nearly all in her name; sometimes in the firm’s name — we doing a big business along and during the war.

> Question. Do you mean to say that in this alleged purchase of an interest in the steamer Clara Dolsen, made in the name of Mary E. Bofinger, the firm of Stillwell, Powell & Co., of which you were a member, was equally interested with her?

> Answer. We were at the time.

> Question. Has your firm since that time conveyed this interest which you say you so acquired; if so, how?

> Answer. We never conveyed it — only verbally.

And in the following extract from Stillwell’s testimony:

> Question. Please define what, if any, interest you have in the claim now under inquiry?

> Answer. I have none whatever at this time.

> Question. What interest have you had at any time since the purchase in *162tlie name of Mary E. Bofinger, which you have mentioned in your direct examination?

> Answer. I had an interest as one of the firm of Stillwell, Powell & Co.

> Question. Have you heard the answer made hy David R. Powell to the questions touching this interest?

> Answer. Yes, sir; I have. '

> Question. In what respect, if any, does your interest differ from his, if at all?

> Answer. After we went through bankruptcy, he purchased the assets then undisposed of, and if there was anything conie out of it it would go to him.

> I have no interest whatever.

> Question. But up to the time of the bankruptcy proceedings of your firm was not your interest in that purchase the same as his, you being also a member of the firm ?

> Answer. Yes, sir; it was.

The alleged interest of Stewart appears by the following agreement, which forms part of the record:

> This contract witnesseth that on the 29th day of September, 1863, A. P. Stewart sold to Albert Pearce and John N. Bofinger, of S. Louis, Mo., fiver sixteenth interest in the steamboat Clara Doisen, and at their request executed a hill of sale of said interest in said boat to Samuel Stillwell, as trustee for Mary E. Bofinger, and whereas the 43 Congress has passed a law appropriating the sum of twenty-two thousand and fifty dollars in payment of all claims of the owners of the Clara Doisen against the United States, and whereas the United States allowed tbe sum ninety-four hundred & fifty dollars for services of said boat in the Navy: No w it is agreed by John N. Bofinger, as attorney in fact for said *said*Stillwell, trustee for Mary E. Bofinger, that in consideration of one dollar to him in hand paid, and for other valuable considerations, that' he will proceed to collect the said claims hereinbefore mentioned, and any others due to the owners of the said steam-bóat in proportion of five-sixteenth of the said boat, and will pay to Albert Pearce the sum advanced hy him in payment for the aforesaid interest, and also to John N. Bofinger the sum advanced hy him for any expenses incurred, and after paying said advances and expenses, hereby agrees *to*pay to the said Albert Pearce, immediately, one-fourth of the remainder of such fund so collected, and also to pay to A. P. Stewart one-fourth of the remainder of the said fund.

> And Albert Pearce agrees .to receive said payment as hereinbefore stated, and release and quit the said Sam’l Stillwell, trustee of said Mary E. Bofin-ger, for any accounting for his ownership of one-half of of said steamboat Clara Doisen. And the said A. P. Stewart agrees to receive the said payment in full satisfaction of any and all claims he has or may have had to or in the Clara Doisen, or to the said Pearce or the said John N. Bofinger.

> The true intent and meaning of this agreement being, that so far and as soon as any collections are made for the owners of the Clara Doisen, then immediate payment to he made as provided in the aforesaid agreement.

> The expenses referred to are', one thousand paid hy Pearce for himself & *163Bofinger; lawyers'fees at S. Louis; Bofinger expenses fixed at five hundred dollars. Estimated in aggregate at twenty-three hundred dollars.

> New York, March 16, 1875.

> ALBERT PEARCE,

> Saíí'l Stillwell,

> By JoiiN N. Boeinghe,

> *Attorney in Fact.*

> » A. P. STEWART.

.By section 1079 of the Bevised Statutes it is enacted—

> That no claimant, nor any person from or through whom any such claimant derives his alleged title, claim, or right against the United States, nor any person interested in any such claim or right, shall he a competent witness in the Court of Claims in supporting the same. * * *

We are of opinion that both Powell and Stillwell are persons from or through whom the present claimant derives her alleged title, claim, or right against the United States to one-half of her claim.

We are also of opinion that Stewart is a person from or through whom she derives the whole of her claim; and further, that Stewart is interested in the claim.

The motion of the Attorney-General to strike out these depositions must therefore be allowed. These beiDg stricken out, no foundation is laid for secondary proof of the alleged deed to Mrs. Bofinger, and the claimant’s title entirely fails, as we have found in finding IX.

This disposes of the controversy. But even if we are wrong in rejecting these depositions, there are other fatal defects in the claimant’s case.

In the first place, if we were to find the conveyance to the claimant as alleged, there are many attendant circumstances which would probablywarrant us in finding, if not make it our duty to find further, that it was taken with notice of the previous conveyance to Cable. This would put the claimant outside of the provisions of the *Act of July*29, 1850 (9 Stat. L., 440; Bev. Stat., § 4192), as to the effect of non-record of a conveyance upon a subsequent purchaser without knowledge. And as Cable took actual possession of the vessel when he purchased, and held it through himself or his privies, he would be entitled to all the legal consequences resulting therefrom.

In the next place, it appears that Cincinnati was the port of this steamer, in which the original enrollment was made; and if the rejected evidence were admitted it would further appear *164that the alleged conveyance to the claimant was recorded at the port of Saint Louis, in October, 1863. At that time the steamer had not been enrolled at Saint Louis, and it was not enrolled there until the 24th May, 1864. The Act of 1850, already referred to, provided that no bill of sale of a vessel should be valid against any other person than the grantor, his heirs and devisees, and persons having actual notice thereof, unless such bill of sale is recorded in the office of the collector of customs where such vessel is registered or enrolled. At the time of the alleged record of the claimant’s conveyance the enrollment of the vessel was at Cincinnati. It is possible that the claimant might have had the vessel enrolled at Saint Louis before recording her deed. In that event the opinion of the Supreme Court as to the place of record given in *White’s Bank*v. *Smith*(7 Wall., 646) might have had weight. But she did not do it, and therefore if the evidence of her conveyance were admitted she would still fail to show that she had complied with the express provisions of the statute to record her deed in the collector’s office where the vessel was enrolled. This would let in the superior rights of Cable by virtue of an unrecorded deed accompanied by possession.

In the next place, the facts prior to the Act of 1875 show no contract by the United States to pay the owners of the Clara Dolsen for its use by the Navy during the war. And if there was no contract this court can have no jurisdiction to determine whether any compensation should be made to the owners)1

In the next place if there were á contract there was no evidence to warrant a finding, and there is no finding to warrant a judgment as to its value.

The only evidence of the willingness of the United States to pay for the use of the vessel, or of the worth of its use, is to be found in the *Act of March*3, 1875, ch. 215 (18 Stat. L., 662), where it is enacted—

> That the Secretary of the Treasury be, and he is hereby, directed to pay to the owners of the steamer Clara Dolsen, out of any money in the Treasury not otherwise approiiriated, the sum of twenty-two thousand and fifty dollars, in full of all clai.ins for the use of said vessel by the Navy Department, and for all claims for damages to said vessel and furniture while in the service of the Government.

It appears by finding XII that the claimant put in a claim before the Secretary of the Treasury unner this act; that the *165claim was rejected, and that the Secretary paid out the whole amount of the appropriation to other parties whom he decided to be the owners of the vessel.

We are of opinion that the Act of 1875 intrusted to the Secretary of the Treasury the discretion to decide the disputed question of the ownership of the five-sixteenths of this vessel; and it appearing that he has exercised that discretion, the statutes of the United States confer upon this court no power to review his action. In *Woolner’s Case*(13 C. Cls. R., 355) we said, “ when the law intrusts the decision of any question of fact to a designated public officer, the sufficiency of the evidence depends upon his own judgment, and cannot be reviewed by any other officer, or any tribunal.” (See also *Kaufman’s*Case, 11 C. Cls. R., 659; same case on appeal, 96 U. S. R., 568; *Bank of Greencastle’s*Case, 15 C. Cls R., 225; *Real Estate Savings Bank of Pittsburgh’s*Case, 16 Ibid., 335; and *Haycroft’s Case,*10 Ibid., 114; same case on appeal, 22 Wall., 81.) The principle which we thus laid down, and which is abundantly supported by authorities, will be decisive of this case, if the case ever reaches its operation.

The motion of the Attorney-General to strike out the depositions of Azariah P. Stewart, David R. Powell, and Samuel Stillwell is allowed.

The judgment of the court is that the claimant’s petition be dismissed.