1. The power of amending a writ of error returnable to the
circuit court is vested in that court as fully as it is in the
Supreme Court on writs of error returnable to it.
2. The judgment of the circuit court ought not to be reversed
for defects of form in the process returnable on error to that
court, which are amendable by the express words of an act of
Congress.
3. The proclamation of the President of the United States,
bearing date Sept. 7, 1867, did not work the dismissal of legal
proceedings against property seized under the Confiscation Act of
July 17, 1883, or provide for the restoration of all rights of
property to persons engaged in the rebellion.
4. Property so seized became the property of the United States
from the date of the decree of condemnation.
5. The writ of error vested the circuit court with complete
jurisdiction, and that court having reversed the second decree of
the district court, dismissing the libel, and adjudged that the
first decree condemning the property should remain in full force,
might "proceed to pass such decree as should have been passed" by
the subordinate court, and if a decree confirming the sale of the
property was necessary, it was entirely competent for the circuit
court to pass it.
Page 91 U. S. 22
The facts are stated, and the assignment of errors is referred
to, in the opinion of the Court.
MR. JUSTICE CLIFFORD delivered the opinion of the Court.
Proceedings
in rem were instituted in the district
court on the 7th of August, 1836, under the Confiscation Act of the
17th of July, 1862, against certain real property of the
respondent, which proceedings resulted, on the 5th of April, 1865,
in the condemnation of the property described in the libel. On the
11th of the same month, a writ of
venditioni exponas was
issued, commanding the marshal to sell the property on the 18th of
the same month, but the marshal did not sell the same on that day,
for the reason, as appears by his return, that the best price bid
at the time and place of the sale did not amount to two-thirds of
the appraised value of the property, and, for the reason stated,
the marshal withdrew the property from sale and again advertised
the same for sale, as directed by the prior order of the court.
Two lots of land were embraced in the libel and the decree of
condemnation, which in fact were not the property of the
respondent. Accordingly, the true owner of the same in the meantime
-- to-wit, on the 2d of May, 1865 -- filed a petition in the same
court setting forth his right to the two lots in question and
stating that they were improperly advertised for sale by the
marshal, and prayed the court to open the decree to allow him to
assert his title.
Consent in writing to that effect having been given by the
district attorney, the court subsequently entered a decree opening
the decree of condemnation for the purpose of enabling the
petitioner to submit to the court his claim to those lots, as
evidenced by the proofs on file. Pursuant thereto the court, on the
31st of May in the same year, rendered judgment, restoring those
two lots to the intervenor, as claimed in his petition.
Page 91 U. S. 23
Such correction of the decree of condemnation having been made,
the return of the marshal shows that he sold the residue of the
lots condemned, in pursuance of the second advertisement, to E. W.
Burbank for the amount specified in the record, and that he paid
the money over to the clerk of the court.
On the 4th of March, 1868, the respondent having first suggested
that the decree of condemnation had been opened and that a portion
of the property libeled had never been condemned by any subsequent
decree, moved the court to set aside the default against him and
for leave to file his claim and answer. Hearing was had on the
motion and the court ordered that the purchaser of the property
should be made a party to the rule. Burbank, the purchaser,
accordingly appeared and filed an exception to the rule that his
rights as purchaser could not be questioned in such a form of
proceeding, and offered in evidence the deed of the marshal and the
decree of condemnation, together with the writ of
venditioni
exponas. Both parties were again heard, and the court, on the
15th of April in the same year, overruled the exceptions of the
purchaser and set aside the default of the respondent and granted
him leave to file his claim and answer.
Leave to that effect having been granted, the respondent filed
his answer alleging his ownership of the property, the
insufficiency of the allegations contained in the libel, and denied
that the President ever authorized the seizure of his property, and
averred that he had been pardoned by the President and that he was
included in the general amnesty proclamation. Proofs were
introduced, and the court, on the 27th of June following, entered a
final decree dismissing the libel and restoring the property to the
respondent upon the payment of all costs.
Proper steps were taken in behalf of the United States to sue
out a writ of error, and the cause was by the United States removed
into the circuit court, where the decree of the district court was
in all things reversed and a decree entered in favor of the United
States that the decree of condemnation originally pronounced by the
district court stand and remain in full force and effect, and that
the sale made by virtue thereof do stand confirmed. Whereupon the
respondent sued out a writ of error and removed the cause into this
Court.
Page 91 U. S. 24
Certain formal errors are assigned as follows, which will first
be considered:
1. That the writ of error from the circuit court to the district
court was made returnable on the first Monday of December instead
of the first Monday in November, as it should have been, and
because the writ of error was not returnable in accordance with the
order allowing the same, nor according to the citation.
2. Errors affecting the merits are also assigned, as
follows:
1. That the President had by his proclamation of amnesty
dismissed all proceedings against any person or his property,
engaged, or in any manner implicated, in the rebellion.
2. That, the original decree having been opened, the property of
the respondent could not be sold at all, as there was no subsisting
decree of condemnation.
3. That the sale to the purchaser was null because it was not
made on the day specified in the writ of
venditioni
exponas.
4. That the circuit court had no authority to confirm the sale
to the purchaser.
5. That the special pardon as well as the amnesty proclamation
entitled the respondent to a restoration of his property in case
the sale by the marshal was null and void.
1. Evidently the alleged preliminary defect is one of form, and
it is equally clear that the power to amend all process returnable
to the circuit court is vested in that court as fully as it is in
the Supreme Court, and the express provision is that the Supreme
Court may allow an amendment of a writ of error when there is a
mistake in the title of the writ or a seal to the writ is wanting,
or when the writ is returnable on a day other than the day of the
commencement of the term next ensuing; and, by the true
construction of the provision upon the subject, the same power of
amendment is vested in the circuit and district courts in all cases
where the process is returnable in those respective courts. 17
Stat. 197.
Hampton v.
Rouse, 15 Wall. 686.
Grave doubts are also entertained whether the supposed error
would avail the respondent even if no such act of Congress had been
passed, as it appears that the copy of the writ lodged with the
clerk of the district court was correct and that the transcript of
the record of the case was actually made out,
Page 91 U. S. 25
returned, and filed in the circuit court before the commencement
of the term of the circuit court next ensuing. Such being the fact,
the better opinion is that the supposed defect is now wholly
immaterial.
Suppose, however, it is otherwise; still the Court here is of
the opinion that the decree of the circuit court ought not to be
reversed for a defect of form in the process which is amendable by
the express words of an act of Congress unless it appears that the
alleged defect may have injured the complaining party or that he
would have been prejudiced if the defect had been amended.
2. Nor is it correct to suppose that legal proceedings against
the property of the respondent were dismissed by the amnesty
proclamation, or that the amnesty proclamation provided for the
restoration of all rights of property to persons engaged in the
rebellion. On the contrary, the proclamation referred to contains
the express exception "as to property with regard to slaves" and
"in cases of legal proceedings under the laws of the United
States." 15 Stat. 700.
Suffice it to remark that a decree of condemnation in due form
of law was entered in this case nearly two years and a half before
the amnesty proclamation was issued, which shows to a demonstration
that the property in controversy in this case falls within the
exception contained in that proclamation, which is all that need be
said upon that subject.
3. Sufficient appears in the record to show that the decree was
never opened except for the special purpose of allowing the true
owner of the two specified lots to file his claim and answer to
that part of the libel, as authorized in the written stipulation
signed by the district attorney. Argument to show that the true
owner of those lots, without such consent in writing, would have
been remediless is unnecessary, and it is equally certain that the
court could not open the decree three years after it was entered
for any other purpose than that specified in the written
stipulation, and the record shows that it never was attempted to be
opened for any other purpose. Viewed in the light of the actual
facts disclosed in the record, the assignment of error in that
regard is utterly destitute of merit.
4. Properties condemned as forfeited to the United States
Page 91 U. S. 26
under the aforesaid act of Congress become the property of the
United States from the date of the decree of condemnation. 12 Stat.
591, sec. 7.
Judgment of forfeiture was rendered in this case on the 5th of
April, 1865, and the land in question became from that date the
property of the United States, and it may well be contended that
from that time it could not concern the respondent whether the
proceedings of the marshal in selling the same were regular or
irregular, as the title to the land was lost to him when it became
vested in the United States. He now contends that the sale is null
because it was not made on the day named in the writ of
venditioni exponas, to which the United States make answer
that he cannot be heard to raise that question, as his title was
divested by the decree of condemnation. But it is not necessary to
rest the decision upon that ground, as it is well settled law that
the marshal, in the exercise of a sound discretion, may adjourn the
sale in such a case to another day, and the court is of the opinion
that the circumstances disclosed in the record were of a character
to fully justify the marshal in the course which he pursued.
Blossom v.
Railroad, 3 Wall. 209;
Collier v. Whipple,
13 Wend. 229;
Requa v. Rea, 2 Paige, 339.
5. Beyond doubt, the original decree of the district court was
complete and correct, and it is doubtless true that the decree of
the circuit court reversing the second decree of the district court
and adjudging that the first decree of the district court should
stand and remain in full force and effect would have been
sufficient without any decree confirming the sale by the marshal;
but even if the decree confirming the sale be regarded as an act of
supererogation, it cannot render invalid what would have been valid
without it.
Complete jurisdiction of the cause was vested in the circuit
court by virtue of the writ of error, and the circuit court, having
reversed the second decree of the district court, might "proceed to
pass such decree as should have been passed" by the subordinate
court, and it follows that if a decree confirming the sale was
necessary, it was entirely competent for the circuit court to pass
such a decree. 1 Stat. 85.
6. Such proceedings under the confiscation act in question
Page 91 U. S. 27
are justified as an exercise of belligerent rights against a
public enemy, and are not in their nature a punishment for treason.
Consequently, confiscation being a proceeding distinct from and
independent of the treasonable guilt of the owner of the property
confiscated, pardon for treason will not restore rights to property
previously condemned and sold in the exercise of belligerent rights
as against a purchaser in good faith and for value.
Miller v. United
States, 11 Wall. 267;
Confiscation
Cas., 20 Wall. 92;
Gay's
Gold, 13 Wall. 351.
By the seizure of the property the district court acquired
jurisdiction to pass the decree of condemnation. All of the
proceedings prior to and in the sale of the land were regular, and
the assumption of power by the district court, nearly three years
subsequently, to restore the land was wholly unauthorized and was
clearly error. Nor did the opening of the decree as to the two lots
not owned by the respondent afford any justification for the action
of the court in restoring the residue of the property, as it is
settled law that a judgment may be good in part and bad in part --
good to the extent it is authorized by law and bad for the residue.
Bigelow v.
Forest, 9 Wall. 339;
Day v.
Micou, 18 Wall. 156;
Ex parte
Lange, 18 Wall. 163.
Much discussion of the special pardon is unnecessary, as it
contained the provision that the respondent should not, "by virtue
thereof," claim any property, or the proceeds of any property, that
had been sold by the order, judgment, or decree of a court under
the confiscation laws of the United States. Authorities to show
that a pardon may be special in its character or subject to
conditions and exceptions are quite unnecessary, as they are very
numerous and are all one way.
Decree of the circuit court is affirmed.