Under the Abandoned and Captured Property Act, which gives to
"the owner" of any such property a right, after it has been sold by
the government, to recover the proceeds of it in the Treasury of
the United States, a factor who has merely made advances on the
property, there
Page 90 U. S. 36
being another person who has the legal interest in the proceeds,
is not to be regarded as "the owner," at least not to be so
regarded beyond the extent of his lien.
The third section of the Act of Congress of March 12th, 1863,
[
Footnote 1] which authorizes a
suit against the United States for the recovery of the proceeds of
sale of captured or abandoned property, enacts that:
"Any person claiming to have been the owner of any such
abandoned or captured property may at any time within two years
after the suppression of the rebellion prefer his claim to the
proceeds thereof in the Court of Claims, and on proof to the
satisfaction of the court of his ownership of said property, of his
right to the proceeds thereof, and that he was never given any aid
or comfort to the present rebellion, receive the residue of said
proceeds after the deduction of any purchase money which may have
been paid, together with the expense of transportation and sale of
said property, and any other lawful expense attending the
disposition thereof."
Under this enactment, one Villalonga filed a petition in the
court below to recover the proceeds of four hundred and
ninety-three bales of cotton which were seized by the Army of the
United States at Savannah in December, 1864. After its seizure, the
cotton was turned over to the agents of the Treasury Department and
sold, and the proceeds of the sale were paid into the Treasury. Of
the whole number of bales captured, one hundred and ninety-six
belonged to Villalonga, but the remainder he had received as a
cotton factor from various persons, and had made advances thereon
in money of the Confederate States. The aggregate of these advances
was $51,153. It did not appear from the case as found who these
different owners were, how much had been advanced to each, or what
was the value of the advances in money of the United States. Upon
this state of facts, the Court of Claims gave judgment in favor of
Villalonga, not
Page 90 U. S. 37
only for the proceeds of sale of the cotton which belonged to
him in his own right, but also for the entire proceeds of that
which he had received as a factor and upon which he had made
advances.
The court rested its judgment upon the case of
Carroll v.
United States, [
Footnote
2] a case in which property owned by a disloyal person, had
after his death, and when in the hands of the administrator of his
estate, who was loyal, been seized by the government under the
above-quoted Abandoned and Captured Property Act and sold. This
Court then adjudged that on a claim by the loyal administrator, the
disloyalty of the decedent did not bar a recovery; that the
administrator, who, said the Court, "had a title on which she could
maintain trespass or trover," was to be considered "owner" within
the meaning of the Abandoned and Captured Property Act.
The Court of Claims, in support of its judgment, said:
"The Supreme Court of the United States decided in
Carroll
v. United States that a suit may be maintained under the
Abandoned and Captured Property Act by one who was not the owner in
his own right, but who, at the time of seizure, was possessed of
the property under a title upon which he could maintain an action
of trover or trespass, and who, at the time of bringing suit, was
entitled to receive the proceeds as the trustee or representative
of parties not before the court. We perceive no difference in
principle between the case of an administrator and of a factor in
possession with a lien upon the property for advances made. The
factor is entitled to hold the property. He may sell it to repay
his advances or maintain an action of trover or replevin to the
exclusion of any action by his principal, and on recovering its
value, he becomes a trustee of the original owner to the extent of
his residuary interest. It may be doubted whether the original
owner, not in possession, not entitled to possession, and not
primarily entitled to the proceeds, could maintain a suit here
under the statute; and it is tolerably certain that he and the
factor could not have brought several and conflicting suits for
their respective interests, and
Page 90 U. S. 38
compelled this Court to settle disputed accounts between them.
Therefore it seems tolerably clear that this suit is properly
brought by the factor who, on recovering, will be liable to his
principal of the surplus after repaying his own advances, as if
this suit were an action of trover brought in a court of the common
law."
Whether the judgment of the Court of Claims, given on this view
of the case of
Carroll v. United States, was correct on
such a state of facts as existed in the present case was the
question now presented, and the answer to it depended, of course,
upon the answer to the antecedent inquiry whether, as to the cotton
upon which the claimant had made partial advances as a factor, he
could be considered the owner thereof, and as having a right to its
proceeds, within the meaning of the Act of Congress.
Certain laws of Georgia, which the claimant relied on as bearing
on his case, were as follows:
"SECTION 1987. The lien given by the common law to attorneys,
factors, . . . pawnees, and others, under special
circumstances (except the vendor's lien) are recognized by and may
be enforced under the law of Georgia. [
Footnote 3]"
"SECTION 2090. A factor's lien extends to all balances on
general account, and
attaches to the proceeds of the sale of
the goods consigned as well as to the goods themselves."
"SECTION 2965. The owner of personalty is entitled to the
possession thereof. Any deprivation of such possession is a tort
for which an action lies."
"SECTION 2966. Mere possession of a chattel, if without title or
wrongfully, will give a right of action for any interference
therewith, except as against the true owner or the person
wrongfully deprived of possession."
"SECTION 2967. Trover may be used as a form of action to recover
the possession of chattels, an alternative verdict in damages, to
be discharged on delivery of the property that has been taken; but
it shall not be necessary to prove any conversion of the property
where the defendant is in possession when the action is brought.
"
Page 90 U. S. 39
"SECTION 2969. In cases of bailments, where the possession is in
the bailee, a trespass committed during the existence of the
bailment will give a right of action to the bailee for the
interference with his special property, and a
concurrent right
of action to the bailor for the interference with his general
property. "
Page 90 U. S. 41
MR. JUSTICE STRONG delivered the opinion of the Court.
No doubt a factor who has made advances upon goods consigned to
him may be regarded, in a limited sense, and
Page 90 U. S. 42
to the extent of his advances, as an owner. Yet in reality he
has but a lien with a right of possession of the goods for its
security. He may protect that possession by suit against a
trespasser upon it, and he may sell the property to reimburse
advances, remaining, however, accountable to his consignor for any
surplus. But after all, he is not the real owner. He is only an
agent of the owner for certain purposes. The owner may, at any time
before his factor has sold the goods, reclaim the possession upon
paying the advances made, with interest and expenses. He has not
lost his ownership by committing the custody of the goods to a
factor and by receiving advances upon them. He is still entitled to
the proceeds of any sale which may be made, even by his agent, the
factor, subject only to a charge of the advances and expenses. A
factor therefore, notwithstanding he may have made advances upon
the property consigned to him, has but a limited right. That right
is sometimes called a special property, but it is never regarded as
a general ownership. At most, it is no more than ownership of a
lien or charge upon the property. Such is unquestionably the
doctrine of the common law. And there is nothing in any statute
affecting this case that changes the doctrine. Certainly the
statutes of Georgia, whence this case comes, have no such effect.
In the code of that state of 1861, while a factor's lien is
recognized and declared to extend to all balances on general
account, and to attach to the proceeds of sale of goods consigned
as well as to the goods themselves, there is nothing that declares
he has anything more than a lien protected by his possession.
Injuries to that possession may indeed be redressed by action in
his name, and it may be assumed that upon contracts of sale made by
him he may sue, but all this is perfectly consistent with the
continuance of the general ownership in his consignors until he has
made a sale. And there is a very significant clause in the statutes
of the state which shows that a factor there has not the general
property. In section 2969 of the article respecting injuries to
personalty generally, it is enacted that
"In cases of bailments where the possession is in the bailee, a
trespass
Page 90 U. S. 43
committed during the existence of the bailment will give a right
of action to the bailee for the interference with his special
property, and a concurrent right of action to the bailor for
interference with his general property."
If this applies to the case of bailment to a factor, as is
supposed by the defendant in error, it is a clear declaration that
the factor's right does not extend beyond a special property, a
mere right to hold for a particular purpose, and that it does not
amount to ownership of the property consigned to him. And there is
nothing in the new code of Georgia or in any of the decisions of
the supreme court that is variant from this. Admit that a factor
may maintain an action when his possession is disturbed, still it
is a question what may he recover? Under the statutes of Georgia,
he can recover only for the injury which his special property --
namely, his lien -- has sustained. For all beyond that, the general
owner may sue. The property of that owner is not vested in his
factor.
If, then, it be, as was said by the Chief Justice in
Klein's case, that the government constituted itself the
trustee of captured or abandoned property for the original owners
thereof, it is hard to see how the trust can exist for the benefit
of the owner of a special property therein beyond the extent of his
interest, which, as we have seen, in case of a factor, is measured
by the amount of his advances and expenses.
For all beyond that, by the law of Georgia, the original owner
who consigned the goods to the factor might sue, and for that
original owner the government became a trustee of all beyond the
factor's interest, according to the doctrine of
Klein's
case.
In this view of the case in hand it is clear that the claimant
is not the "owner of the" captured "property," "having a right to
the proceeds thereof," within the meaning of the Captured or
Abandoned Property Act. He owns of the cotton consigned to him
nothing but a lien for his advances and expenses, and he is
therefore not entitled to the entire proceeds of the sale of the
property.
There are other considerations that support this conclusion.
Page 90 U. S. 44
Plainly it was the intention of Congress, manifested in the
statute, that no person should be permitted to recover out of the
Treasury any of the proceeds of sale of the property captured or
abandoned except those who had given no aid or comfort to the
rebellion. But if a factor who has made advances, no matter how
small, may recover the entire proceeds of a consignment made to
him, not only what he has advanced, but the share of his principal,
the intention of the law may be wholly defeated. He may have
received consignments from persons most active in promoting the
rebellion, and he may have advanced only one dollar on each bale of
cotton consigned. If now he can recover the entire net proceeds of
the sale of such cotton paid into the Treasury, his consignors,
through him, using him as a cover, escape entirely from the
operation of the provision of the statute that no one hall have a
standing in the Court of Claims who has given aid and comfort to
the rebellion. A construction of the law which admits of such a
consequence cannot be correct. The intention of Congress is not
thus to be evaded.
There is yet another consideration not to be overlooked. Under
the Act of March 3d, 1863, [
Footnote 4] amending the act to establish the Court of
Claims, that court has power to consider and determine all setoffs,
counterclaims, claims for damages, whether liquidated or
unliquidated, or other claims which the government may have against
any claimant in the court, and render judgment against such
claimant if he be found indebted to the government. Can a debtor to
the United States evade his liability to a judgment against him by
consigning his property to a factor and obtaining some advances?
May the factor recover all that is in the Treasury, though the
government may have large claims against his principals, who are
the real parties in interest? We cannot think the acts of Congress
admit of such an interpretation. These considerations show that the
"owner," spoken of in the third section of the Captured and
Abandoned Property
Page 90 U. S. 45
Act, "having a right to the proceeds thereof," is he who has the
legal interest in those proceeds, and that a factor who made
advances before the capture can, at most, recover only to the
extent of his lien.
The court below rested their judgment upon
Carroll's
case, but that case, in our opinion, has little analogy to this.
There, an administratrix of a deceased person was the claimant, and
it was held to be no bar to the suit that the decedent gave aid and
comfort to the rebellion, the property having been taken after his
death from the administratrix, and not from him, and the
administratrix was declared to be the owner within the meaning of
the statute. Undoubtedly she was the full legal owner, entitled
both in law and in equity to the entire property. Hers was the only
title which existed at the time of the capture. Through whom she
acquired it was deemed immaterial. It was sufficient that no other
person had a definite right. This is no such case. Here there are
owners, both in law and in equity, other than the claimant, and the
statute has opened the Court of Claims for them if they have never
given aid or comfort to the rebellion. The present claimant, at
most, is entitled to no more than the net proceeds of sale of his
own cotton, one hundred and ninety-six bales, and the amount of his
advances on the other cotton, reducing those advances to their
worth in the money of the United States at the time the advances
were made.
Judgment reversed and the cause remitted with instructions
to proceed in conformity with this opinion.
[
Footnote 1]
12 Stat. at Large 820.
[
Footnote 2]
13 Wall. 151.
[
Footnote 3]
Code of Georgia, 1861, pp. 393, 410, 551, 552.
[
Footnote 4]
12 Stat. at Large 765.
