1. The Act of July 17, 1862, 12 Stat. 589, so far as it related
to the confiscation of property, applied only to the property of
persons who thereafter might be guilty of acts of disloyalty and
treason, and it reached only the estate of the party for whose
offenses the property was seized.
2. Until some provision was made by law for the condemnation of
property in land of persons engaged in the rebellion, the courts of
the United States could not decree a confiscation of it and direct
its sale.
3. Such persons were not denied the right of contracting with
and selling to each other; as between themselves, all the ordinary
business could be lawfully carried on except in cases where it was
expressly forbidden by the United States or would have been
inconsistent with or have tended to weaken its authority.
4. The purpose of the United States to seize and confiscate the
property of certain classes of persons engaged in the rebellion
having been declared by the Act of July 17, 1862, sales and
conveyances of property subsequently made by them could only pass a
title subject to be defeated if the government should afterwards
proceed for its condemnation. The fact that the property sold and
conveyed was at the time within the territory occupied by the
federal troops created no other legal impediment to the
transfer.
5. The provision in that act that "all sales, transfers, or
conveyances" of property of persons therein designated shall be
null and void only invalidates such transactions as against any
proceedings taken by the United States for the condemnation of the
property. They are not void as between the parties or against any
other party than the United States. The case of
Corbett v.
Nutt, 10 Wall. 464, cited on this point and
approved.
6. A sale by public act, before a notary within the
insurrectionary territory, of land in the City of New Orleans by
one enemy to another for a valuable consideration, previous to the
passage of the Confiscation Act, passed the title to the purchaser,
which was not affected by subsequent judicial proceedings for its
condemnation for alleged offenses of the vendor. The case of
Fairfax's Devisee v. Hunter's
Lessee, 7 Cranch 603, cited and approved.
7. An actual delivery of immovables in Louisiana is not
essential to the validity of a sale of them made by public act
before a notary. The law of the state considers the tradition or
delivery of the property as accompanying the act.
This was an action for the recovery of certain real property,
described in the petition of the plaintiff, situated in the City of
New Orleans, and of the rents and profits. The plaintiff claimed
title to the premises by a conveyance from his father, Charles M.
Conrad, made to himself and his brother on the 6th of May,
Page 96 U. S. 280
1862, and a subsequent conveyance to himself of his brother's
interest. The conveyance of the father was made in settlement and
discharge of certain obligations resting upon him under the laws of
Louisiana by reason of his having received, as the natural tutor of
his children, property belonging to them as minor heirs of their
deceased mother. It appears from the record that she died intestate
at New Orleans in 1839, leaving the plaintiff and his brother her
only heirs, and an estate valued at a sum over $35,000. The estate
consisted principally of her separate property; a small portion was
her share of the real property belonging to the matrimonial
community. The surviving husband qualified, and was confirmed as
the natural tutor of the children, and took charge of their
property. The law of Louisiana imposes a general mortgage upon all
the property of a tutor to secure the interests of minors and his
faithful execution of the trust, but gives him the right to
substitute in place of it a special mortgage upon particular
parcels of his property. The tutor here availed himself of this
right at different times. The last special mortgage was executed in
1847, and, with other property, covered the premises in
controversy. Previously to this and in 1845, his indebtedness to
his sons had been ascertained and fixed by decree of the probate
court at the sum of $36,757. This amount was subsequently
increased.
No account of his administration was ever rendered by the tutor
until May 6, 1862, when a settlement took place between him and his
sons, and in discharge of his obligations to them, he executed,
before the recorder and
ex-officio notary public of the
Parish of St. Helena a public act of sale by which he sold and
conveyed to them several lots situated in New Orleans, and among
them the one in controversy in this case. This act of sale, which
purports to have been recorded in the City of New Orleans on the
31st of the same month, the court refused to admit in evidence.
The defendant, Waples, in his answer, asserted title to the
premises in controversy under a deed to him by the marshal of the
United States, executed in March, 1865, upon a sale under a decree
of the district court rendered in February of that year, condemning
and forfeiting the property to the United States, as that of
Charles M. Conrad, in proceedings taken under
Page 96 U. S. 281
the Confiscation Act of July 17, 1862. The other defendants
disclaimed title.
On the 1st of May, 1862, New Orleans passed into the possession
of the Army of the United States, and on the 6th of the month,
General Butler, commanding our forces there, issued a proclamation
reestablishing the national authority in the city. The proclamation
bears date on the 1st of May, but was not published until the 6th.
The Conrads, father and sons, had left the city before it was
captured. They had previously been engaged in the rebellion against
the United States -- the father as a member of the Confederate
Congress, and the sons as officers of the Confederate army -- and
they continued in such rebellion until the close of the war. The
Parish of St. Helena was within the Confederate lines when the Act
of sale of May 6, 1862, was executed. When this act was offered in
evidence by the plaintiff, objection was made to its introduction
on substantially the following grounds:
1. That the act was not a sale, but a giving in payment, and
that no delivery of the property was or could be made, as the same
was situated within the federal lines, and the act was executed
within the military lines of the Confederate states, where the
parties were sojourning.
2. That it being admitted that the vendor and vendees had been
before, and were at the date of the act, and afterwards, engaged in
rebellion against the United States, and so continued until the end
of the war, and that the act was passed within the Confederate
lines, the property being situated within the federal lines, the
act of transfer was inoperative and void.
3. That such evidence would tend to contradict the decree of
condemnation previously entered in the district court, and set up
by the defendant in his answer.
4. That it being admitted that the grantor and grantees were
enemies of the United States at the time the act was passed, the
grantor was incompetent to complete the transfer of the property,
the same being within federal military lines.
5. That the copy of the act offered in evidence was not, by the
statute of the state, admissible in evidence against any right set
up by a third person, without being accompanied with proof that the
same had been duly and legally registered in the proper office
where the properties were situated.
6. That a state of war then existing, a deed executed
Page 96 U. S. 282
in the parish of St. Helena, within the Confederate lines, could
not be legally recorded in the Parish of Orleans, which at that
date was within federal military lines.
These several objections were sustained by the court, and the
plaintiff excepted.
The plaintiff requested the court to instruct the jury
substantially as follows:
1st, that even if the Confiscation Act contained a prohibition
against sales, transfers, and conveyances, made in good faith prior
to its passage, such prohibition did not apply to transfers and
conveyances wherein all parties to the same, vendor and vendees,
were equally engaged in rebellion against the United States, and
consequently, where the property conveyed or transferred would be
as liable to confiscation in the hands of the vendees as in the
hands of the vendor.
2d, that all that was seized, and all that could be seized,
condemned, and sold under the judgment or decree of the United
States District Court for the Eastern District of Louisiana, in the
proceedings against the property of Charles M. Conrad, on which
judgment or decree, and the sale made in pursuance thereof, the
defendant bases his claim to the premises in controversy in this
cause, was the title, right, and estate of said Charles M. Conrad,
whatever the same might have been, to endure only during his life,
in and to the property libeled and condemned, and the right,
property, and estate therein of no other person or persons
whatsoever.
3d, that the United States, by the proceedings and decree of
condemnation, succeeded only to the rights of said Charles M.
Conrad to said property, whatever the same might be, to endure only
during his life, and that the decree, and marshal's sale to
defendant thereunder, had no other effect than to transfer such
rights as the United States acquired by the decree, and did not
disturb or affect the rights of any other person or persons to the
property, or any part thereof, and that if, at the time of the
seizure, proceedings, and decree, Charles M. Conrad had no rights
and estate in the property involved, the United States acquired no
rights and estate therein, and the marshal's sale of the property
transferred no interest or estate therein to the defendant the
purchaser at the sale.
Page 96 U. S. 283
But the court refused to give the instructions as prayed, or any
of them, and the plaintiff excepted.
At the request of the defendants, the court instructed the jury
that, the plaintiff having offered no evidence to show title in
himself, it was their duty to return a verdict for the defendants;
to which instruction the plaintiff excepted.
The jury found for the defendants, and, judgment having been
entered on the verdict, the plaintiff brought the case here on writ
of error.
MR. JUSTICE FIELD, after stating the case, delivered the opinion
of the Court.
The questions presented for our determination relate to the
admissibility and effect of the act of sale of May 6, 1862, and to
the subsequent condemnation and sale in the confiscation
proceedings. Numerous exceptions were taken to the rulings of the
circuit court in admitting and rejecting evidence, and in giving
and refusing instructions to the jury, but we do not deem it
important to notice them in detail. What we have to say upon the
Confiscation Act, the title which passed by a condemnation and sale
under it, and the power of enemies to sell and convey to each other
their interest in real property situated within the lines of the
other belligerent, will sufficiently express our judgment upon the
questions involved, and serve to guide the court below in any
subsequent proceedings.
The law of July 17, 1862, so far as it related to the
confiscation of property, applied only to the property of persons
who thereafter might be guilty of acts of disloyalty and treason.
It carefully excluded from its application the property of persons
who, previous to its passage, may have committed such acts. It left
the door open to them to return to their allegiance, without
molestation for past offenses. The fifth section, with the
exception of the third clause, directed the seizure of property
only of persons who might thereafter hold an office or an agency
under the government of the Confederacy, or of one of the states
composing it, or might thereafter act as an officer in its army or
navy, or who, owning property in any loyal state or
Page 96 U. S. 284
territory or in the District of Columbia, might thereafter give
aid and comfort to the rebellion, and the joint resolution of the
two houses of Congress, passed in explanation and limitation of the
law, removed that exception. That resolution declared that the
third clause of that section should be so construed as not to apply
to any act or acts done prior to its passage. The sixth section,
which provided for the seizure of the property of persons other
than those named in the previous section who, being engaged in
armed rebellion, did not within sixth days after the warning and
proclamation of the President, cease to aid, countenance, and abet
the rebellion, declared that "all sales, transfers, and conveyances
of any such property after the expiration of the said sixty days"
should be null and void. 12 Stat. 627.
Nothing done, therefore, by the elder Conrad when he made his
sale to his sons, which was before the passage of the Confiscation
Act, affected his title or power of disposition. It is true he was
then engaged in the rebellion as a member of the Confederate
Congress and giving constant aid and comfort to the insurrectionary
government. But until some provision was made by law, the courts of
the United States could not decree a confiscation of his property
and direct its sale. This follows from the doctrine declared in
Brown v. United States, reported in the 8th of Cranch. In
that case, the question arose whether certain property of the enemy
found on land at the commencement of hostilities with Great Britain
in 1812 could be seized and condemned as a consequence of the
declaration of war. And it was held that it could not be condemned
without an act of Congress authorizing its seizure and
confiscation. The Court said that it was conceded that war gives to
the sovereign the right to take the persons and confiscate the
property of enemies wherever found, adding that the mitigation of
this rigid rule, which the humane and wise policy of modern times
has introduced into practice, cannot impair the right, though it
may more or less affect its exercise. "That," said the Court,
"remains undiminished, and when the sovereign authority shall
choose to bring it into operation, the judicial department must
give effect to its will. But until that will shall be expressed, no
power of condemnation can exist in the court."
The only acts of Congress providing for the confiscation
Page 96 U. S. 285
of property of persons engaged in the rebellion are those of
Aug. 6, 1861, and of July 17, 1862. That of 1861 applied only to
property acquired with intent to use or employ the same, or to
suffer the same to be used or employed, in aiding or abetting the
insurrection or in resisting the laws, and did not touch the
property in controversy here. And the act of 1862, as already
stated, did not authorize a seizure and confiscation for past acts.
It might have done so on the simple ground that the owner of the
property seized was a public enemy, without reference to the time
he became such, but Congress otherwise provided, and its will
furnishes the rule by which to determine the rights of the elder
Conrad at the time he disposed of his property.
The statute not only did not recognize past acts as grounds for
confiscation, but it reached only the estate of the actual owner at
the time the property was seized. It might undoubtedly have
provided for the confiscation of the entire property, from its
being within the enemy's country, but the legislature did not so
enact. Congress limited the exercise of its power of confiscation
to those cases where the owners were officers or agents of the
insurrectionary organization, or of one of the states composing it,
or commanding in its army or navy, or where, while holding property
in a loyal state or territory or in the District of Columbia, they
gave aid and comfort to the rebellion, or where, not being within
these classes but being in arms in support of the insurrection,
they refused for sixty days after the warning and proclamation of
the President, to return to their allegiance. It was the seizure
and confiscation of "the estate, property, money, stocks, credits,
and effects" of the persons thus specially designated that the act
authorized, not the seizure and confiscation of property in
enemies' territory, or of enemies generally. It was at the estate
and interest which belonged to offending persons of the classes
mentioned that the act aimed -- nothing more. Proceedings under the
act therefore affected only their estate and interest in the
property seized. It was so held by this Court in
Day v.
Micou, reported in the 18th of Wallace, where the effect of an
adjudication and sale under the act was the direct point in
judgment. And this conclusion was not considered as at all affected
by the fact that
Page 96 U. S. 286
after the seizure, proceedings
in rem were to be
instituted for the condemnation of the property. The question, said
the Court, remained what was the
res against which the
proceedings were directed, and this, it answered, was that which
was seized and brought within the jurisdiction of the court. "A
condemnation in a proceeding
in rem," it added, speaking
through MR. JUSTICE STRONG,
"does not necessarily exclude all claim to other interests than
those which were seized. In admiralty cases and in revenue cases, a
condemnation and sale generally pass the entire title to the
property condemned and sold. This is because the thing condemned is
considered as the offender or the debtor, and is seized in
entirety. But such is not the case in many proceedings which are
in rem. Decrees of courts of probate or orphans' courts
directing sales for the payment of a decedent's debts, or for
distribution, are proceedings
in rem. So are sales under
attachments or proceedings to foreclose a mortgage
quasi
proceedings
in rem at least. But in none of these cases is
anything more sold than the estate of the decedent or of the debtor
or the mortgagor in the thing sold. The interests of others are not
cut off or affected."
If we apply these views to the case at bar, we must hold that
there was nothing in the proceedings and decree under the
Confiscation Act against the property of the elder Conrad, upon
which the defendant in his answer relies, which could in any
respect affect the rights of the younger Conrads to the lands
conveyed to them before that act was passed unless the fact that
the parties to the conveyance were, at the time of the sale,
engaged in the rebellion against the United States and were within
the enemies' country, rendered it unlawful for the father to
transfer and the sons to receive the title to real property
situated within the federal lines. The illegality of the sale on
this ground was insisted upon in the court below, and the position
was there sustained. But we do not think the position at all
tenable. The character of the parties as rebels or enemies did not
deprive them of the right to contract with and to sell to each
other. As between themselves, all the ordinary business between
people of the same community in buying, selling, and exchanging
property, movable and immovable, could be lawfully carried on
except in cases where it was expressly forbidden by
Page 96 U. S. 287
the United States or where it would have been inconsistent with
or have tended to weaken their authority. It was commercial
intercourse and correspondence between citizens of one belligerent
and those of the other, the engaging in traffic between them, which
were forbidden by the laws of war and by the President's
proclamation of nonintercourse. So long as the war existed, all
intercourse between them inconsistent with actual hostilities was
unlawful. But commercial intercourse and correspondence of the
citizens of the enemy's country among themselves were neither
forbidden nor interfered with so long as they did not impair or
tend to impair the supremacy of the national authority or the
rights of loyal citizens. No people could long exist without
exchanging commodities, and, of course, without buying, selling,
and contracting. And no belligerent has ever been so imperious and
arbitrary as to attempt to forbid the transaction of ordinary
business by its enemies among themselves. No principle of public
law and no consideration of public policy could be subserved by any
edict to that effect, and its enforcement, if made, would be
impossible. If, then, intercourse between the Conrads, father and
sons, they being all enemies, was not unlawful; if between them
contracts for the purchase and sale of property, in respect to
which there was no special interdict, would have been binding --
the sale in the case at bar can only be impeached, if at all, by
reason of the situation of the property within the federal lines.
And from that circumstance it could not be impeached unless the
sale, if upheld, in some way frustrated the enforcement of the
right of seizure and confiscation possessed by the United States.
It may be admitted that the right of a belligerent to confiscate
the property of enemies found within its territory cannot be
impaired by a sale of the property during the war, but it is not
perceived that on any other ground the sale could be invalidated. A
conveyance in such case would pass the title subject to be defeated
if the government should afterwards proceed for its condemnation.
And to declare this liability was the object of the provision in
the Confiscation Act enacting that "all sales, transfers, and
conveyances" of property of certain designated parties made subject
to seizure should be null void. The invalidity there declared was
limited,
Page 96 U. S. 288
and not absolute. It was only as against the United States that
the transfers of property liable to seizure were null and void.
They were not void as between private parties or against any other
party than the United States. This was so held in the case of
Corbett v. Nutt, reported in the 10th of Wallace. There, a
devise (which for the purpose of the case was treated as included
within the terms "sales, transfers, and conveyances") of property
situated in the District of Columbia, made by a resident enemy in
the State of Virginia to a person as trustee who also resided in
that state and held office under the Confederate government, was
held to pass a title good against all the world except the United
States. The seizure and confiscation of property of persons engaged
in the rebellion, and the appropriation of the proceeds to support
the army and navy, were supposed -- whether wisely or unwisely is
immaterial -- to have a tendency to ensure the speedy termination
of the rebellion, and it was to prevent the provisions enacted to
enforce the confiscation from being evaded by the parties whose
property was liable to seizure that sales, transfers, and
conveyances of it were declared invalid. As stated by the
Court,
"They were null and void as against the belligerent or sovereign
right of the United States to appropriate and use the property for
the purpose designated, but in no other respect, and not as against
any other party. Neither the object sought nor the language of the
act requires any greater extension of the terms used. The United
States were the only party who could institute the proceedings for
condemnation, the offense for which such condemnation was decreed
was against the United States, and the property condemned or its
proceeds went to their sole use. They alone could therefore be
affected by the sale."
And the Court added that any other construction would impute to
the United States a severity in their legislation entirely foreign
to their history. If the sale to the younger Conrads had been made
after the passage of the Confiscation Act, it would not have
prevented the title of the elder Conrad from vesting by the decree
of condemnation in the United States. But, having been made
previously, it was not impaired by the act.
An actual delivery of the property to the vendees at the time
was not essential to the validity of the sale, it having been
Page 96 U. S. 289
made by public act before a notary. The code of the state
declares that an obligation to deliver an object which is
particularly specified is perfect by the mere consent of the
parties, and renders the creditor the owner, and further that this
rule
"is without any exception, as respects immovables, not only
between the parties, but as to all the world, provided the contract
be clothed with the formalities required by law, that it is
bona fide, and purports to transfer the ownership of the
property."
Art. 1914. The code also declares that "the law considers the
tradition or delivery of immovables as always accompanying the
public act which transfers the property." Art. 2455;
Lallande
v. Lee, 9 Rod. (La.) 514;
Flynn v. Moore, 4 La.Ann.
400;
Ellis v. Prevost, 13 La. 235, 237. We are of opinion,
therefore, that the act of sale made on the 6th of May, 1862, was
unaffected by the subsequent confiscation proceedings, and should
have been admitted in evidence.
This case is much stronger than that of
Fairfax's Devisee v.
Hunter's Lessee, reported in the 7th of Cranch, which received
great consideration by this Court. There, a devise to an alien
enemy resident in England, made during our Revolutionary War by a
citizen of Virginia and there residing at the time, was sustained
and held to vest a title in the devisee which was good until office
found. "It is clear by the common law," said Mr. Justice Story,
speaking for the Court,
"that an alien can take lands by purchase, though not by
descent, or, in other words, he cannot take by the act of law, but
he may by the act of the party. This principle has been settled in
the Year Books, and has been uniformly recognized as sound law from
that time. Nor is there any distinction whether the purchase be by
grant or by devise. In either case, the estate vests in the alien,
not for his own benefit but for the benefit of the state, or, in
the language of the ancient law, the alien has the capacity to take
but not to hold lands, and they may be seized into the hands of the
sovereign. But until the lands are so seized, the alien has
complete dominion over the same."
And, continues the learned Justice,
"We do not find that in respect to these general rights and
disabilities there is any admitted difference between alien friends
and alien enemies. During the war, the property of alien enemies is
subject to confiscation
jure belli, and their civil
Page 96 U. S. 290
capacity to sue is suspended. But as to capacity to purchase, no
case has been cited in which it has been denied, and in
Attorney General v. Wheeden & Shales, Park.Rep. 267,
it was adjudged that a bequest to an alien enemy was good, and
after a peace might be enforced. Indeed, the common law in these
particulars seems to coincide with the
jus gentium."
If an alien enemy can, by devise or purchase from a loyal
citizen or subject, take an estate in the country of the other
belligerent and hold it until office found, there would seem to be
no solid reason for refusing a like efficacy to a conveyance from
one enemy to another of land similarly situated.
* A different
doctrine would unsettle a multitude of titles passed during the war
between residents of the insurrectionary territory temporarily
absent therefrom whilst it was dominated by the federal forces.
Such residents were deemed enemies by the mere fact of being
inhabitants of that territory, without reference to any hostile
disposition manifested or hostile acts committed by them. In
numerous instances also, transfers of property were made in loyal
states bordering on the line of actual hostilities by parties who
had left those states and joined the insurgents. This was
particularly the case in Missouri and Kentucky. No principle of
public policy would be advanced or principle of public law
sustained by holding such transfers absolutely void, instead of
being merely inoperative as against the right of the United States
to appropriate the property
jure belli; on the contrary,
such a holding would create unnecessary hardship, and therefore add
a new cruelty to the war.
It follows from the views expressed that the judgment of the
court below must be reversed and the cause remanded for a new
trial, and it is
So ordered.
*
See the able and exhaustive opinion of the Supreme
Court of Massachusetts in
Kershaw v. Kelsey, delivered by
Mr. Chief Justice Gray, 100 Mass. 561.
MR. JUSTICE CLIFFORD dissented. His opinion applies to this and
to the subsequent case of
Burbank v. Conrad. It will be
found on page
96 U. S.
293.
