Titus v. United States
87 U.S. 475 (1874)

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U.S. Supreme Court

Titus v. United States, 87 U.S. 20 Wall. 475 475 (1874)

Titus v. United States

87 U.S. (20 Wall.) 475

ERROR TO THE CIRCUIT COURT FOR

THE SOUTHERN DISTRICT OF GEORGIA

Syllabus

1. An informer does not acquire a right to a moiety under the Confiscation Act of August 6, 1861, in regard to land informed against, after a complete title to the property has been acquired by conquest. [In the present case, the information was filed July 17, 1866, the rebellion being at the time suppressed and the property in the possession of the military forces of the government.]

2. The government is not estopped from denying an informer's claim to a moiety in such a case,

(a) by the fact that its district attorney has allowed proceedings in confiscation to be carried on under the act and the land to be sold, and the purchase money to be received;

(b) or by the fact that the Commissioner of the Freedmen's Bureau, to whom, as agent of the United States, Congress gives the control and management of all captured and abandoned land, never claimed the land itself, but after it had been sold and the price paid into court, and a moiety adjudged to the informer, has taken the other moiety without question.

3. The case of an informer in such a case stands on a very different footing, and is to be judged of by very different principles of estoppel, from that of a purchaser of the land who has paid his money to the United States in consequence of their offer to sell under the act.

On the 2d December, 1862, the executors of the will of C. J. McDonald, being fully authorized, sold and conveyed to the Confederate government certain land in Bibb County, Georgia, to be used (through the agency of certain laboratories built upon it for the preparation of ammunition) in promoting the rebellion against the government of the United States. This land remained the property of the Confederate government, and was used in aid of the rebellion, until the final surrender of the Confederate armies, when it was taken possession of and held by the military forces of the United States. On the 17th July, 1866, while it remained so in the possession of the military forces, one Titus filed with the district attorney an information against it under the Act of

Page 87 U. S. 476

August 6, 1861, known as the Confiscation Act. [Footnote 1] This act provides in substance that if, during the (then) present or any future insurrection against the government of the United States, any person should, after the prescribed proclamation, purchase or acquire, sell or give, any property, of whatsoever kind or description with intent to use or employ the same, or suffer the same to be used or employed, in aiding or abetting or promoting such insurrection; or if any person, being the owner of such property, should knowingly use or employ, or consent to the use or employment of, the same for such purpose, all such property should be lawful subject of prize and capture wherever found, and the President was required to cause it to be seized, confiscated, and condemned. The proceedings for condemnation were to be had in the courts of the United States having jurisdiction of the amount, or in admiralty in any district in which such "prizes and capture" might be seized or into which they might be taken and proceedings first instituted. The Attorney General, or the district attorney of the United States for the district in which the property might at the time be, was authorized to institute the proceedings of condemnation, and in such case they were to be wholly for the benefit of the United States; or any person might file an information with such attorney, and then the proceedings were to be for the use of an informer and the United States in equal parts.

The district attorney, in pursuance of the information filed by Titus, as already mentioned, and prosecuting "for the United States and informant," on the 15th January, 1867, commenced proceedings in the District Court of the Southern District of Georgia for the condemnation and sale of the property, alleging the conveyance to and use by the Confederate government and averring that by the surrender of the Confederate armies it had become the property of the United States. No person appeared in the action to defend or offered to claim the property, and, on the 26th February, the formal judgment of forfeiture and sale under the act was entered.

Page 87 U. S. 477

A warrant of sale was issued on the 25th March, 1867, to which the marshal, on the 21st November, returned that, on the 8th May, he had postponed the sale upon the order of the district attorney. On the 17th June, Titus filed a petition in the cause, asking to be made a party and for a judgment, asserting his right to one-half the proceeds of the sale and directing its payment to him. The prayer of this petition was granted on the 8th April, 1868, and, on the 20th January, 1870, the marshal made a second return to the warrant of sale, to the effect that he had sold the property for $19,542.75, and had paid the purchase money into the registry of the court. On the 19th April following, the Commissioner of the Freedmen's Bureau asked for and obtained an order for the payment to him of one-half the net proceeds of the sale.

The reader will perhaps recall that the act establishing the Freedmen's Bureau, passed March 3, 1865, [Footnote 2] provides:

"That the commissioner, under the direction of the President, shall have authority to set apart for the use of loyal refugees and freedmen such tracts of land within the insurrectionary states as shall have been abandoned or to which the United States shall have acquired title by confiscation, or sale, or otherwise, and to every male citizen, whether refugee or freedman as aforesaid, there shall be assigned not more than forty acres of such land,"

&c.

After providing that he shall be protected in the occupancy thereof, at an annual rental for the period of three years, the act concludes thus:

"At the end of said term or at any time during said term, the occupants of any parcels so assigned may purchase the land and receive such title thereto as the United States can convey upon paying therefor the value of the land, as ascertained and fixed for determining the annual rent aforesaid."

The twelfth section of the Act of July 16, 1866, [Footnote 3] continuing the said bureau, also provides:

"That the commissioner shall have power to seize, hold, use,

Page 87 U. S. 478

lease, or sell all buildings and tenements, and any lands appertaining to the same or otherwise, formerly held under color of title by the late so-called Confederate states and not heretofore disposed of by the United States, and any buildings or lands held in trust for the same by any person or persons, and to use the same, or appropriate the proceeds derived therefrom, to the education of the freed people,"

&c.

The district attorney, on the 2d May, filed a motion to set aside the judgment in favor of Titus and, that motion being refused, took a writ of error to the circuit court, where the judgment was reversed. The case was here for a review of this action of the circuit court.

Page 87 U. S. 481

THE CHIEF JUSTICE delivered the opinion of the Court.

In war, the public property of an enemy captured on land becomes, for the time being at least, the property of the conqueror. No judicial proceeding is necessary to pass the title. Usually the ultimate ownership of real property is settled by the treaty of peace, but so long as it is held and not surrendered by a treaty or otherwise, it remains the property of the conqueror.

This well settled principle in the law of war was recognized by this Court in United States v. Huckabee, [Footnote 4] as applicable to the late civil war. At the close of that war, there was no treaty. When the insurrection was put down, the government of the insurgents was broken up, and there was no

Page 87 U. S. 482

power to treat with. Hence the title to all captured property of the Confederate government then became absolute in the United States.

Titus, however, claims as an informer under the Act of 1861. This act provided, in substance, that if, during the (then) present or any future insurrection against the government of the United States, any person should, after the prescribed proclamation, purchase or acquire, sell or give, any property of whatsoever kind or description, with intent to use or employ the same or suffer the same to be used or employed in aiding or abetting or promoting such insurrection, or if any person, being the owner of such property, should knowingly use or employ, or consent to the use or employment, of the same for such purpose, all such property should be lawful subject of prize and capture wherever found, and the President was required to cause it to be seized, confiscated, and condemned. The proceedings for condemnation were to be had in the courts of the United States having jurisdiction of the amount, or in admiralty in any district in which such "prizes and capture" might be seized, or into which they might be taken and proceedings first instituted. The Attorney General, or the district attorney of the United States for the district in which the property might at the time be, was authorized to institute the proceedings of condemnation, and in such case they were to be wholly for the benefit of the United States; or any person might file an information with such attorney, and then the proceedings were to be for the use of an informer and the United States in equal parts.

Clearly this act was intended for private, not public property -- for such property of persons as required, under the laws of war, a judicial sentence of condemnation to divest the title of its owner -- not such property of a hostile government as had already been captured by an army and subjected to the complete and undisputed dominion and ownership of the conquering power. It applies, as will be seen, to all property, personal as well as real. Not only to a laboratory in which ammunition is prepared, but to the ammunition

Page 87 U. S. 483

itself; not to armories simply, but to their product. If the laboratory, owned by the hostile government when captured in the progress of the war and held by the army, can be informed against and condemned for the benefit of the informer and the United States, so also can the ammunition prepared therein and captured in battle. If the armory, then the gun. Once incorporate this statute, with such a construction, into the law of war and the attention of the soldier in battle will be divided between the capture of arms, ammunition, and stores on the field and the search for a district attorney with whom to lodge a statutory information and demand as a matter of right a proceeding in the court for its condemnation on the joint account of himself and the government in whose service he is. We doubt if the counsel for the informer in this case, who has so earnestly and so ably advocated the cause of his client here, would be willing to enlist himself in behalf of such a claim, and yet it is difficult to see how, if he succeeds in this, he might not in that.

An informer, to entitle himself to the statutory reward for his service, must inform against property which is the subject of judicial condemnation. There can be nothing to divide if there is nothing to condemn. In this case, the land, when informed against, was already the property of the United States. The title had passed by the completed conquest. There was nothing to reach by judicial process. Information, in the statutory sense, could do no good. The property had been devoted to the war and followed its fortunes. The capture was the result of many battles, but it was nonetheless on that account captured property, needing no judicial sentence of forfeiture to make it absolutely the property of the United States.

But it is claimed that the United States are estopped by the proceedings of condemnation instituted, as they were, in behalf of itself and an informant, from denying, as against the informer, that the property in question was the subject of forfeiture on joint account under the act. There is no pretense that there was any claim, adverse to the title of the

Page 87 U. S. 484

United States as conqueror, that was or could be cut off by the judgment of the court. It will hardly be contended, we think, that if, after the close of the war, an information had been filed with the district attorney against the Charleston custom house, and he had proceeded to have it condemned under the act, the United States would be estopped from objecting to the claim of an informer, for one-half its value, and yet the custom house, although owned by the United States before the war, was no more its property at the close than was the laboratory informed against in this case, if the statements in the record are true. The very libel of information, filed by the district attorney, shows upon its face that the title of the United States was then complete, and the fair inference from the petition of Titus to be made a party to the cause is that the case made by the libel is the same as that he presented to the attorney for proceedings. Certainly the United States are not prohibited from asserting, as against the informer, that the case he brought to its consideration, and upon which it acted, was not one in which he could be interested.

But it is further claimed that there is an estoppel in favor of this informer because the Commissioner of the Freedmen's Bureau omitted to appear and resist the judgment of condemnation, and, after the sale was made, applied for and received from the court one-half the proceeds.

The Act of July 16, 1866, gave the commissioner of that bureau the control and management of property of the character proceeded against, for certain purposes specified, but in this he was only the agent of the United States. His bureau was the department of the government authorized to manage the trust to which the property had been devoted. He is not estopped if the United States are not, and his neglect to appear and defend against the proceedings can certainly have no more effect against the United States than the institution of the original proceedings.

Neither was an estoppel created by the receipt of the purchase money. The order in favor of the informer was made on the 8th April, 1868, and the property remained unsold

Page 87 U. S. 485

until December 7, 1869. On the 19th April, 1870, the commissioner made his application to the court for the money. One-half the proceeds was all he could ask for, so long as the judgment in favor of the informer remained in force. This he applied for and received, and on the 2d May, the proceedings now under consideration were commenced to set aside that judgment. Certainly under these circumstances it cannot be said that even if he had the power to do so, the commissioner has yielded the claim of the government to the money which had been adjudged to the informer.

Very different questions and very different principles of estoppel will have to be considered if the United States or the commissioner shall ever attempt to assert title against the purchasers at the sale. They claim under the sale, and have paid their money in consequence of the offer of the United States to sell in that way. The informer stands in no such position. He has parted with nothing he ever had. He stands upon the original title. If, when he informed, the United States had no title, and through his information one was acquired, he is entitled to the statutory reward for his service. But if the United States had then a perfect title and nothing could be added to it by reason of his information, he has done nothing for which the statute has provided a reward. Whether he should be paid for furnishing the government with information by which it has been able to make its conquest available is a question we are not called upon to consider. We deal with him only as an informer under the statute, and as such he has no standing in court.

In the view we have taken of the case, it is not necessary to consider whether the district court erred in permitting Titus to become a party to the proceedings after the judgment of condemnation had been entered and all chances of liability for costs had been resolved in his favor.

Judgment affirmed.

[Footnote 1]

12 Stat. at Large 319.

[Footnote 2]

13 Stat. at Large 507.

[Footnote 3]

14 id. 173, &c.

[Footnote 4]

83 U. S. 16 Wall. 434.

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