Opinion of the Court.

1843, part 2 chap. 29, Art. 1, § 1, provided as follows: "Section 1. When, by any law of this State, real estate is authorized or directed to be sold by virtue of any execution, the same shall bé construed to mean and include, 1. All the lands, tenements, and hereditaments of the judgment debtor, whether in possession, reversion or remainder. 2. Lands, tenements, and hereditaments fraudulently conveyed with intent to defeat, delay, or defraud creditors. 3. All rights of redeeming mortgaged lands, tenements, or hereditaments, and also all lands held by virtue of any land-office certificate. 4. Lands, tenements, and hereditaments, and any estate or interest therein, holden by any one in trust for, or to the use of, another, on execution issued on any judgment against the person to whose use, or for whose benefit, the same are holden." The provisions of these four clauses were substantially retained in the Revision of 1852, and the provision as to "chattels real of the judgment debtor" was added as a 5th clause. Although, by the Revised Statutes of 1843, part 2, chap. 29, Art. 1, § 3, p. 454, judgments were made a lien on real estate and chattels real of the judgment debtor, which provision is contained in the Revision of 1852, part 2, chap. 1, Art. 24, § 527, of vol. 2 of Davis' edition of 1876, chattels real were not specifically made liable to sale on execution as real estate, till 1852, when the 5th clause was added.

That clause must be interpreted according to the accepted meaning of the words, "chattels real." Blackstone defines. chattels real, according to Sir Edward Coke, 1 Inst. 118, to be such as concern, or savor of, the realty, as terms for years of land, and says they are called real chattels, as being interests. issuing out of, or annexed to, real estates, of which they have one quality, viz., immobility, which denominates them real, but want the other, viz., a sufficient legal, indeterminate duration, which want it is that constitutes them chattels. 2 Bl. Comm. 386. Chancellor Kent says, 2 Kent, 342: "Chattels real are interests annexed to or concerning the realty, as a lease for years of land; and the duration of the term of the lease is immaterial, provided it be fixed and determinate, and there be a reversion or remainder in fee in some other person."

Opinion of the Court.

The interest of the judgment debtors in this case in the land covered by the Bunting agreement was a chattel real; and as the dispute here relates to machinery, buildings, fixtures and improvements situated on the Bunting premises, and held under the Bunting agreement, it follows that that property had impressed on it, by the statute, for the purposes of a sale on execution, the character of a chattel real, and became, for those purposes, real estate, and, therefore, was not required to be sold as personal property, present and subject to the view of those attending the sale, but was properly sold as real estate, at the door of the county court house.

The estate for years, or the interest in the land, could not be subject to view. The machinery, buildings, fixtures and improvements were created under the privilege given by the agreement to occupy the land with constructions and buildings for mining coal and other minerals, and, although Helphenstine & Co. had the right to remove the buildings and fixtures at the expiration of the agreement, yet, so long as they were held under the agreement, on the premises, and were of the character referred to, they followed the term for years and partook of its character.

In Barr v. Doe, 6 Blackford, 335, in 1843, it was held that a parol lease for three years was a chattel interest, and could be sold as a chattel, on an execution issued by a justice of the peace. But that decision does not apply to the statute now under consideration, and no case is cited or found in the courts of Indiana, which holds to the contrary of the views above expressed. Indeed, in the Revised Statutes of 1843, part 3, ch. 47, § 347, p. 992, form No. 10, the form prescribed for an execution by a justice of the peace was against "goods and chattels," while in the Revision of 1852, vol. 2 of Davis' edition of 1876, part 5, ch. 127, form No. 4, the form runs against "goods" only.

The case of Buhl v. Kenyon, 11 Mich. 249, is cited for the appellants. It was there held, that an estate for years in land was to be sold, on execution, as personal estate, and that a sale of it in accordance with the statutory provisions for the sale of real estate was void. The court proceeded on the ground that, as the statute of Michigan provided that the words "real

Opinion of the Court.

estate, when not inconsistent with the manifest intention of the legislature, shall be construed to include lands, tenements, and real estate, and all rights thereto, and interests therein;" and also provided that "all the real estate of a debtor, whether in possession, reversion or remainder, including lands fraudulently conveyed, with intent to defeat, delay or defraud his creditors, and the equities and rights of redemption hereinafter mentioned, shall be subject to the payment of his debts, and may be sold on execution as hereinafter provided;" and also enacted, that "all chattels, real or personal, and all other goods liable to execution by the common law, may be taken and sold thereon, except as is otherwise provided by law;" and, as a leasehold interest of the kind in question was a chattel interest, and was by the last named provision classed among personal property, it was not within the law applicable to the sale of lands on execution. In the present case, a chattel real is distinctly classed, by § 526, among "real estate liable to be sold on execution," and must, therefore, be sold in the manner in which § 466 directs that "real estate taken by virtue of any execution shall be sold."

The point decided in Meni v. Rathbone, 21 Ind. 454, 467, was, that a lease for years, acquired by a wife during coverture, became the property of her husband, when reduced to possession by him, and, being a chattel, was personal property, under the definition before referred to, and subject to the husband's debts, and, being a chattel real, a judgment against the husband was, by the statute of 1852, a lien upon it.

The motion made in the Circuit Court to modify the decree was based on the idea, that, while the term for years might be a chattel real, the machinery, buildings, fixtures and improvements placed on the land should have been sold as personal property. As the statute requires that real estate "shall" be sold at the door of the court house, the visible property could not be sold there in view of the persons attending the sale of the real estate, unless it was first severed from the land; and to have so treated it would, doubtless, have rendered not only it but the term of years worthless, as vendible articles. No such result could have been contemplated by the law-makers,

VOL. CXIII-27

Opinion of the Court.

and none such can be allowed, if another reasonable and consistent construction is to be found.

It is not necessary or proper to consider any question in volved in any right of redemption. Nor is it intended to decide anything as to the status of any of the property, aside from the lawfulness of the manner of its sale, under the statute in regard to such sale.

"The decree of the Circuit Court is

Affirmed.

UNITED STATES v. JORDAN.

APPEAL FROM THE COURT OF CLAIMS.

Submitted January 26, 1885.-Decided March 2, 1885.

Under the act of Congress of July 29, 1882, 22 Stat. 723, ch. 359, providing for the refunding to the persons therein named of the amount of taxes assessed upon and collected from them contrary to the provisions of the regulations therein mentioned, "that is to say, to" each of such persons the sum set opposite his name, each of them is entitled to be paid the whole of that sum, and no discretion is vested in the Secretary of the Treasury, or in any court, to determine whether the sum specified was or was not the amount of a tax assessed contrary to the provisions of such regulations.

The facts which make the case are stated in the opinion of the court.

Mr. Assistant Attorney-General Maury for appellant.

Mr. Charles F. Benjamin for appellee.

MR. JUSTICE BLATCHFORD delivered the opinion of the court. On the 29th of July, 1882, an act of Congress was passed, 22 Stat. 723, ch. 359; providing "that the Secretary of the Treasury, be, and he is hereby, authorized and directed to remit, refund and pay back, out of any moneys in the treasury not otherwise appropriated, to the following named citizens of

Opinion of the Court.

Tennessee, or the legal representatives of such as are deceased, the amount of taxes assessed upon and collected from 'the said named persons contrary to the provisions of the regulations issued by the Secretary of the Treasury, under date of June. twenty-first, eighteen hundred and sixty-five, and published in special circular numbered sixteen, from the Internal Revenue office, of that date, said refunding having been recommended by the Secretary of the Treasury, under date of June nineteenth, eighteen hundred and seventy-three, that is to say, to "-followed by the names of 81 persons, and the specification of a sum of money opposite each name, and, among them, this: "to Edward L. Jordan, two thousand two hundred and ninety dollars; all of Rutherford County, Tennessee; said persons, and each of them having filed their claims in the office of the Commissioner of Internal Revenue prior to the sixth of June, eighteen hundred and seventy-three."

Afterwards, and on the 6th of September, 1882, the acting Commissioner of Internal Revenue transmitted to the Secretary of the Treasury, for his action, the claim of Edward L. Jordan, to be paid $2,290, under the act. On that letter, under date of September 11, 1882, the acting Secretary of the Treasury indorsed an order directing that Jordan be paid that sum. He was paid one-half of it, $1,145, on November 2, 1882, but payment of anything more was refused. On the 1st of December, 1882, he brought a suit against the United States, in the Court of Claims, to recover the remaining $1,145. On December 7, 1882, the Secretary of the Treasury indorsed on the order of September 11, 1882, the following: "The foregoing order of September 11, 1882, is construed to mean only that such sums shall be refunded or paid as were collected from the persons within named contrary to the provisions of the regulations issued by the Secretary of the Treasury under date of June 21, 1865, mentioned in said act, and effect is to be given to said order accordingly." The Court of Claims gave judgment for the claimant for $1,145, 19 C. Cl. 108, and the United States have appealed.

At the request of the counsel for the defendants, the court found the following facts: