Brown v. Kennedy,
82 U.S. 591 (1872)

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U.S. Supreme Court

Brown v. Kennedy, 82 U.S. 15 Wall. 591 591 (1872)

Brown v. Kennedy

82 U.S. (15 Wall.) 591


1. Under the Act of July 17, 1862, "to seize and confiscate the property of rebels," &c., which authorizes the confiscation of all "the estate, property, money, stocks, and credits" of rebels -- if the information be filed against a bond and mortgage, praying process against them and against "the estate, property, claim, credits, and rights thereto and therein" belonging to the mortgagee, and the warrant, in directing the

Page 82 U. S. 592

marshal to attach and retain in his possession, use these same words, and the marshal return that he has attached "the bond, mortgage, and credit," and has cited the mortgagee, and the decree, reciting the return, order that the said "bond, mortgage, and credit" be condemned and forfeited -- the forfeiture is good, and the record of the proceeding of forfeiture is a bar to a bill of foreclosure on the mortgage.

2. This is so though in point of fact the bond and mortgage were never in the district of the United States where the proceedings in forfeiture took place.

An Act of Congress of July 17, 1862, "to seize and confiscate the property of rebels," provided, that if any persons in the then rebel states being engaged in armed rebellion against the government of the United States, or aiding or abetting such rebellion, shall not, within a time specified, cease to aid, countenance, and abet such rebellion, and return to his allegiance to the United States, "all the estate, property, money, stocks, and credits of such persons, shall be liable to seizure as aforesaid," and it was made the duty of the President to seize and use them as aforesaid, or the proceeds thereof. The statute further enacted "That to secure the condemnation and sale of any such property, proceedings in rem shall be instituted in the name of the United States" in the district court, and that the proceedings shall conform as nearly as may be to proceedings in admiralty and revenue cases,

"and if said property, whether real or personal, shall be found to have belonged to a person engaged in rebellion, or who has given aid or comfort thereto, the same shall be condemned as enemies' property."

This act had now three times been before this Court for construction. It came up once in Pelham v. Rose, [Footnote 1] where the Court took a distinction between a promissory note, the evidence of a credit and the credit itself, and held that when the debtor had given to his creditor a promissory note, and that note was in existence and was the thing proceeded against, it was necessary to the legal service of any monition that

Page 82 U. S. 593

the marshal should seize and take it into his possession and control. The corollary was that when the note, at the commencement of and during the pendency of proceedings to confiscate, was beyond the jurisdiction of the marshal, there was no due service and no confiscation.

The statute came up for consideration at a later date in Miller v. United States. [Footnote 2]

In that case, a libel had been filed under the act to confiscate railroad stocks belonging to a rebel, and the notice, instead of being served on the owner, was served on the officers of the railroad company.

The Court held that the service was good. It said that

"The act of Congress made it the duty of the President to cause the seizure of all the estate, property, money, stocks, credits, and effects of the persons described, and in order to secure the condemnation and sale of such property after its seizure, directed judicial proceedings in rem to be instituted. It contemplated that every kind of property mentioned could be seized effectually in some mode. It had in view not only tangible property, but that which is in action. It named stocks and credits, but it gave no directions respecting the mode of seizure. It was therefore,"

the Court said,

"a fair conclusion that the mode was intended to be such as was adapted to the nature of the property directed to be seized, and in use in courts of revenue and admiralty. And it was a legitimate,"

the Court added,

"in certain proceedings in courts of admiralty, to attach credits and effects of such an intangible nature that they cannot be taken into actual possession by the marshal, and the mode of attachment was by notice, dependent upon statutory enactment."

The Court accordingly held that the confiscation and sale had made a valid transfer of the stock.

The act came up a third time in Pelham v. Way, reported in an earlier part of this volume, [Footnote 3] where the Court said "that undoubtedly a debt or credit was capable of seizure under the confiscation acts, and of subsequent condemnation and

Page 82 U. S. 594

sale," though the Court there held that the proceeding not having been against the debt or credit, but only against the material evidence of it, and that material evidence having been out of the marshal's jurisdiction, and not having been seized, no confiscation of anything had taken place.

The statute thus above explained being in force, an information was filed by the district attorney in the District Court of the United States for the District of Kansas against a bond, dated May 28, 1860, executed by Lawrence Kennedy to Edward S. Brown and secured by mortgage made and acknowledged by said Lawrence and Eliza his wife, on the same day and on it recorded. The information prayed that process might issue against the bond and mortgage, and against "the estate, property, claim, credits, and rights thereto and therein belonging to said Edward S. Brown to enforce the forfeiture thereof." Following this information, a warrant was issued on the 28th of March, 1863, to the marshal of the district commanding him to "attach said bond and mortgage, and the estate, property, claim, credits, and rights thereto and therein belonging to the said Edward S. Brown," and to retain the same in his custody to await the further order of the court, giving notice to all persons claiming the same to appear on the 20th of April, 1863, and show cause, if any they had, why the property should not be condemned as forfeited. To this warrant the marshal made return that he had attached the "bond, mortgage, and credit," and had cited Lawrence Kennedy and Eliza Kennedy (the obligors and mortgagors), and all other persons having or pretending to have any right, title, or interest therein, as he was commanded. Then followed the decree of the court, entered May 5, 1863, which, after reciting the marshal's return that he had attached the bond and mortgage, credits, and property, and given due notice, after reciting also that proclamation had been made, and that default had been entered, ordered that "the said bond, mortgage, and credit" be condemned and declared forfeited to the United States. The decree also ordered Kennedy, one of the obligors and mortgagors,

Page 82 U. S. 595

to pay the debt into the court for the use of the United States, and in pursuance of the decree payment was made to the officers of the court.

In 1868, Brown obtained a pardon from the President, and on his application, previously made, the district court ordered that all the money that had been collected under the confiscation decree by the officers of the court should be paid to him, after deducting therefrom some unpaid legal costs. And subsequently he caused to be filed in the confiscation proceedings a petition praying for judgment in his favor against those officers for the money. In point of fact, however, Brown received nothing on account of the order.

In this state of things, Brown filed a bill in the court below, the Circuit Court for the District of Kansas, against Lawrence Kennedy and wife for the foreclosure of the mortgage. The principal defense was that the mortgage and the debt secured by it had been confiscated under the act of Congress; the defendant asserting also that by coming in to get the money produced by the confiscation, the complainant was estopped from proceeding by way of foreclosure. This defense was the less pressed, as the complainant expressly disclaimed wanting more than one satisfaction. As matter of fact, it was admitted by a statement of facts agreed on that Brown, the complainant, was and always had been a resident of Virginia, and from June, 1860, till September, 1865, had continuously, at his home in that state the bond and mortgage, and that neither of the instruments was, during any part of that term, in the District of Kansas.

The court below dismissed the bill, and from its action herein, this appeal came.

Page 82 U. S. 597

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