28 U.S.C. § 2409 — Partition actions involving United States

Page 598 TITLE 28—JUDICIARY AND JUDICIAL PROCEDURE § 2408 A continuance may be granted if the defend- ant, in open court and in the presence of the United States attorney, states under oath that he is equitably entitled to credits which have been disallowed by the Government Account- ability Office prior to the commencement of the action, specifying each particular claim so re- jected, and stating that he cannot safely come to trial. A continuance may also be granted if such an action is commenced on a bond or other sealed instrument and the court requires the original instrument to be produced. (June 25, 1948, ch. 646, 62 Stat. 972; Pub. L. 108–271, § 8(b), July 7, 2004, 118 Stat. 814.) HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., § 781 (R.S. § 957; June 10, 1921, ch. 18, § 304, 42 Stat. 24). Word ‘‘action’’ was substituted for ‘‘suit’’, in view of Rule 2 of the Federal Rules of Civil Procedure. Words ‘‘court requires the original instrument to be produced’’ were substituted for ‘‘defendant pleads non est factum, verifying such plea or motion by his oath, and the court thereupon requires the production of the original bond, contract, or other paper certified in the affidavit’’. The plea of non est factum is obsolete under Rule 7(c) of the Federal Rules of Civil Procedure. Fur- thermore, the words deleted are superfluous, since a court would not require the production of an original instrument unless the proper procedure were taken to require such production. Changes were made in phraseology. Editorial Notes AMENDMENTS 2004—Pub. L. 108–271 substituted ‘‘Government Ac- countability Office’’ for ‘‘General Accounting Office’’ in second par. § 2408. Security not required of United States Security for damages or costs shall not be re- quired of the United States, any department or agency thereof or any party acting under the di- rection of any such department or agency on the issuance of process or the institution or prosecu- tion of any proceeding. Costs taxable, under other Acts of Congress, against the United States or any such depart- ment, agency or party shall be paid out of the contingent fund of the department or agency which directed the proceedings to be instituted. (June 25, 1948, ch. 646, 62 Stat. 972.) HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., § 870 (R.S. § 1001; Mar. 3, 1911, ch. 231, §§ 117, 289, 36 Stat. 1131, 1167; Jan. 31, 1928, ch. 14, § 1, 45 Stat. 54; June 19, 1934, ch. 653, § 7, 48 Stat. 1109). Section 870 of title 28, U.S.C., 1940 ed., applied only to the Supreme Court and district courts. The revised sec- tion applies to all courts. Words ‘‘process or the institution or prosecution of any proceeding’’ were substituted for ‘‘appeal, or other process in law, admiralty, or equity.’’ Word ‘‘agency’’ was substituted for ‘‘any corporation all the stock of which is beneficially owned by the United States, either directly or indirectly’’, in view of the creation of many independent governmental agen- cies since the enactment of the original law on which this section is based. Changes were made in phraseology. § 2409. Partition actions involving United States Any civil action by any tenant in common or joint tenant owning an undivided interest in lands, where the United States is one of such tenants in common or joint tenants, against the United States alone or against the United States and any other of such owners, shall proceed, and be determined, in the same manner as would a similar action between private persons. Whenever in such action the court orders a sale of the property or any part thereof the At- torney General may bid for the same in behalf of the United States. If the United States is the purchaser, the amount of the purchase money shall be paid from the Treasury upon a warrant drawn by the Secretary of the Treasury on the requisition of the Attorney General. (June 25, 1948, ch. 646, 62 Stat. 972.) HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., § 766 (May 17, 1898, ch. 339, §§ 1, 2, 30 Stat. 416). Provisions relating to service or commencement of the action and duty of United States attorneys to ap- pear, defend, and file answer were omitted as surplus- age and covered by Rules 2, 3, and 4 of the Federal Rules of Civil Procedure and section 507 of this title. Words ‘‘shall proceed, and be determined, in the same manner as would a similar action between private per- sons’’ were substituted for ‘‘shall proceed as other cases for partition by courts of equity, and in making such partition the court shall be governed by the same prin- ciples of equity that control courts of equity, in parti- tion proceedings between private persons,’’ in view of Rule 2 of the Federal Rules of Civil Procedure. Changes were made in phraseology. § 2409a. Real property quiet title actions (a) The United States may be named as a party defendant in a civil action under this sec- tion to adjudicate a disputed title to real prop- erty in which the United States claims an inter- est, other than a security interest or water rights. This section does not apply to trust or restricted Indian lands, nor does it apply to or affect actions which may be or could have been brought under sections 1346, 1347, 1491, or 2410 of this title, sections 7424, 7425, or 7426 of the Inter- nal Revenue Code of 1986, as amended (26 U.S.C. 7424, 7425, and 7426), or section 208 of the Act of July 10, 1952 (43 U.S.C. 666). (b) The United States shall not be disturbed in possession or control of any real property in- volved in any action under this section pending a final judgment or decree, the conclusion of any appeal therefrom, and sixty days; and if the final determination shall be adverse to the United States, the United States nevertheless may retain such possession or control of the real property or of any part thereof as it may elect, upon payment to the person determined to be entitled thereto of an amount which upon such election the district court in the same action shall determine to be just compensation for such possession or control. (c) No preliminary injunction shall issue in any action brought under this section. (d) The complaint shall set forth with particu- larity the nature of the right, title, or interest which the plaintiff claims in the real property, the circumstances under which it was acquired,