This is an action to recover the barge “ Franklin.” The plaintiff obtained possession by proceeding for claim and delivery in this action. On the trial the court ordered a verdict for the return of the barge. The case comes up on exceptions.
The plaintiff, to show his title to the barge, gave in evidence a bill of sale to him dated August 3,1868, executed by Alexander Spaulding, collector of internal revenue. This recited that on the 2d day of June, 1868, he caused the barge to be seized, “ she being at that time fitted up for and actually engaged in the business of illicitly manufacturing spirits in violation of the internal revenue laws; that the expense of keeping her was very great; that on the 22d day of June, 1868, he applied to the assessor to have the barge appraised; that on the 26th day of June, 1868, the assessor appraised the barge; that on 27th the collector notified the owners to execute a bond equal to the assessed value; that they neglected to do. so; that the collector applied to the assessor for an order to. sell; that the assessor issued such order, and that the collector had sold the barge to the plaintiff August 3d, 1868.”
The plaintiff also gave in evidence the aforesaid application made June 22d, 1868, by the collector to the assessor, which *321of states that the barge was engaged in the illicit manufacture spirits, and requesting, under section 48 of the internal revenue laws, an appraisal. It is important to notice, on this point, that that section only authorizes and applies to the seizure of goods, &c., on which taxes are imposed, which shall be found in the possession of persons for the purpose of being sold or removed with the design to avoid payment of taxes, and of raw materials in possession of persons intending to manufacture fraudulently.
Next the plaintiff gave in evidence the assessor’s appraisal aforesaid, by which the assessor appraised the barge and contents at $3,000.
No evidence was given showing that the owner had been required or notified to give such bond. The recital in a letter of the collector, that such a notice had been given, is no evidence of the fact.
The plaintiff then gave in evidence the assessor’s order to the collector to sell, in which he recites that the barge, with its contents, was appraised at $3,000, and recites that it was seized for being engaged in illicit distillation of spirits.
The plaintiff also gave in evidence certain proceedings in the United States Court, commenced December 22d, 1868, against “ $618.30, being the proceeds of the barge Franklin,” &c. These are stated to be the proceeds of a quantity of distilled spirits, certain raw materials, and a still, tools, and the barge Franklin. In these proceedings, the charge against the barge is not that she was used for illicit distillation, but that she was a vessel used for the removal, deposit or concealment of taxable goods. The marshal attached these proceeds of the sale December 22d, 1868, and returned that he had given due notice to all persons claiming the same.
On the 29th of January, 1869, no person appearing, the said proceeds were condemned, and it was further adjudged that the seizure and sale to Tracy be confirmed.
Now, it seems to be evident that the validity of Tracy’s title cannot in any way depend upon the subsequent decree, *322because if a decree that the seizure and sale be confirmed helps to make the previous sale valid, then a contrary decree would make such sale invalid. The result of such a principle would be that no person could safely purchase at such a sale. Because, if it were to depend on a future decree of a court whether the purchaser at such a sale was to obtain a good title or not, then it would follow that the property could not be sold. All that could be sold would be an uncertain right or chance, which a subsequent decree might make into a valid title, or might utterly destroy. In the common phrase, this would be selling a lawsuit.
This provision for a sale of perishable property is common. One instance is found in the Code, section 233, in ease of attachment by a sheriff under an order. If the property is perishable, he may be authorized by order of the court to sell. But the title acquired under such sale would plainly not be affected by the final judgment in the action. The purchaser’s title would be no better if the plaintiff should succeed, and no worse if he should fail. The sale is not made by authority of the judgment, and, therefore, nothing which is decided by the judgment affects the validity of the sale. It is important to observe this distinction. If property is levied upon under an attachment, and is held until final judgment, and is then sold under the judgment, then it is sold by the authority of the judgment, and the decisions of that judgment are binding. But if property is levied upon under an attachment and sold as perishable, then the validity of the sale depends on the attachment and the order of sale.
Thus, too, in the present case, if the barge had been held till the decree, and then condemned and sold, the decree would have been the authority for the sale, and whatever was decided by the decree affecting the property sold under it would have been conclusive. But this barge was not sold under the decree, but under certain doings of the collector and assessor prior to the decree, and prior even to any legal proceedings. Those subsequent proceedings may be conclu *323sive as to the proceeds of the sale which are substituted for the barge, but they have nothing to do with the sale of the barge. That must stand on the validity of the acts of the collector and assessor.
To show that this must be so, let us suppose that the decree of the United States Court had been the reverse of what it was; that it had decided that' the proceeds of the property should not be condemned or forfeited. Would such a decree have destroyed Tracy’s title ? Clearly not. If, then, a decree releasing those proceeds from forfeiture and condemnation would not have taken away Tracy’s title to the barge, it follows that a decree forfeiting and condemning the proceeds cannot make his title to the barge any better. If he obtained a good title, it was, by virtue of the proceedings, taken by the collector and assessor in respect to the barge prior to and at the time of the alleged sale to him.
There is nothing in this view which is in conflict with the doctrine of thé exclusive jurisdiction of the United States courts in cases of seizure (Slocum, agt. Mayberry, 2 Wheat., 1). Admitting that the decree of that court is conclusive on the question whether or not the seizure was wrongful, would it be claimed that even in case of a wrongful seizure, if the property were perishable and were by proper proceedings sold for that reason, the purchaser would obtain no title 1 Such a principle could not be tolerated. The doctrine of the law in this respect is that, from the necessity of the case, the property seized (wrongfully or rightfully) cannot be kept till final adjudication ; that, therefore, it is necessary to sell it, not because it was rightfully seized, but because it cannot be kept. If, therefore, the party seizing takes the proper steps for a sale on such grounds, the purchaser has nothing to do with the subsequent decree and is in no way affected by it.
Such a decree, therefore, is not to be considered in the case on the question of confirming the plaintiff’s title. The proof, then, of the plaintiff’s title to the barge is the conveyance of the collector. The plaintiff further offered to prove the fact *324of the seizure, and that at the time a distillery was running on board; and he also gave in evidence the application of the collector, the appraisal and the order of the assessor.
It is necessary to inquire by what authority the collector made this sale. The plaintiff claims under section 48 of internal revenue act, July 33, 1866. This declares that when any property so seized cannot be kept without great expense, the collector * * * may apply to the assessor of the district to examine said property, and if in the opinion of the assessor it shall be necessary that said property should be sold to prevent such expense, he shall appraise the same, the owner thereupon shall have the property returned, upon giving bonds with such sureties as the assessor shall deem good, which bond shall be filed by the assessor. If said owner shall neglect or refuse to give said bond, the assessor shall issue to the collector an order to sell, and the collector shall advertise and sell in same manner as goods are sold on final execution.
It will be seen, then, that the authority to sell rests on several things. 1st. The application to the assessor. 2d. His examination and opinion that a sale is necessary. 3d. His .appraisal. 4th. The owner’s refusal to give a bond. 5th. The order to sell.
How, in the present case it appears that the collector applied to the assessor June 22d, 1868, to appraise “the barge.” On the 26th of June the assessor appraised the “ property seized ” at $3,000. This included a quantity of distilled spirits, a still .and apparatus, raw materials, implements, &c. The assessor did not indicate Ms opinion that a sale was necessary, and while the expense of keeping the barge might be great, tMs- could not, it would seem, be true of the other property seized. There is no evidence given on the trial that the owners were notified to give a bond. All that there is on that point is a letter written by the collector to the assessor, July 9th, stating that fact; nor does it appear that any evidence, except this letter, was ever given to the assessor showing that the owners had neglected.or refused to give the bond.
*325Now, when we consider, as is shown above, that this sale of property, as perishable or as too expensive to be kept, if lawfully conducted, deprives the owner of his title, notwithstanding he has never been guilty of any wrong, he must, on all sound principles, be entitled to notice of the proceeding. It must be clearly kept in mind that such a sale as this is not made on the ground 'of forfeiture, but on the ground that the property is perishable, and as the proceedings are not before any court, but are conducted by the collector and assessor, the provisions of the statute must be strictly complied with.
In the present case there are several defects.
There was no. appraisement of the barge. True, the barge and other property were appraised together. But this did not enable the owner of the barge to give a bond of the appraised value of the barge, thus to prevent the sale.
Next, there is no evidence of any notice to the owner requiring him to give such a bond.
Again, it will be found, on looking at the papers, that the assessor never decided that it was necessary to sell the barge until after the time when, as alleged, the owner had neglected to give the bond. There was nothing, then, at the time when the owner is alleged to have neglected to give the bond, which could have given him notice that this barge had been adjudged "to be too expensive to keep, and that he^must, therefore, give a bond.
If it be claimed that the assessor’s order to sell is quasi judicial, it certainly should not be so highly judicial that it can avail to deprive an owner of his property without proof of notice to him and without any finding of the necéssity of a sale, on which finding only, as a preliminary, could the owner be called on to protect his property from the sacrifice of a collector’s auction sale.
Judgment should be entered on the verdict rendered for defendant.
Judge Ingraham concurred.
Judge Bradt dissented.
Judgment for defendant, with costs.