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.
