This appeal brings up for review a judgment in the court of claims dismissing a petition filed in that court against the United States.
So far as it is necessary to state the facts, the case is substantially as follows:
Smith, Ellett, & Company, a firm composed of Rinaldo P. Smith and Francis M. Ellett, were engaged in business as leather and commission merchants in Baltimore from some time in 1867 or 1868 to January 1st, 1870.
On the 26th of October, 1869, George J. Stephens, a distiller and tanner in Virginia, was indebted to Smith, Ellett, & Company, in the sum of $7,000, already due, and in the further sum of $2,000, to become due in the course of future dealings. On the same day a certain deed was executed between Stephens of the first part, Beazley, trustee, of the second part, and Smith and Ellett, doing business as Smith, Ellett, & Company, of the third part. It recited that Stephens was indebted to Smith, Ellett, & Company in the sum of $4,000, evidenced by the bond or demand note of Stephens dated October 26th, 1869, and that Smith, Ellett, & Company had accepted, for the accommodation of Stephens, a draft for $3,000, and had agreed to accept a further accommodation draft for $2,000. In order that said acceptances in addition to the note for $4,000 might be secured, Stephens, by deed dated October 26th, 1869, conveyed to Beazley a tract of land containing about 400 acres, more or less, in Greene county, Virginia, upon which Stephens then resided, with the mansion house and all buildings thereon, including a tannery and distillery, and all things appurtenant thereto, 'in trust to secure the said bond of $4,000, and all the acceptances already made and given as aforesaid, now current and to become payable, and all acceptances to be hereafter made and given as aforesaid, and all which may be made and given for renewal of former ones, or to replace the money paid by the party of the first part in taking up former ones as aforesaid, or in any other manner as stated in the premises, so as the same shall not exceed the sum of $5,000.'
The property conveyed was worth more than $3,000. The deed was duly acknowledged and recorded on the 30th day of October, 1869.
When that deed of trust was executed and recorded there was due from Stephens to the United States government internal revenue taxes which had accrued from July, 1867, to October 26th, 1869, amounting to $4,000.
On the 25th of January, 1870, Smith and Ellett executed the following instrument of writing: 'Baltimore, January 25, '70. We hereby give our consent to the use of the distillery premises of Geo. J. Stephens, situated on the Harrisonburg turnpike, about 4 miles from Stannardsville, and which premises contain about 3 acres of land, more or less, immediately surrounding the distillery building, and which building is contained thereon or comprised therein by said Geo. J. Stephens, subject to the provisions of the internal rev. law, and that the lien of the United States for taxes and penalties hereafter incurred shall have priority, to the extent of the above-mentioned premises, of a certain deed of trust executed by said Geo. J. Stephens for our benefit, and whereof Wyatt S. Beazley is trustee, and that in case of the forfeiture of the said distillery premises, or any part thereof, the title of the same shall vest in the United States, discharged from said deed of trust.'