1. In Louisiana, a conveyance of lands is valid between the
parties without registration, and passes the title. The only
consequence of a failure of the purchaser to place his conveyance
on the records of the parish where the lands are situated is that
he is thereby subjected to the risk of losing them if they be again
sold or hypothecated by his vendor to an innocent third party, or
if they be seized and sold by a creditor of his vendor for the
latter's debts.
2. The Registry Act was not intended to protect the United
States in the exercise of its power of confiscation from the
consequences of previous unrecorded sales by the alleged offender.
By the decree, the United States acquires for his life only the
estate which at the time of the seizure he actually possessed, not
what he may have appeared from the public records to possess, by
reason of the omission of his vendees to record the act of sale to
them, and only that estate, whatever it may be, for that period
passes by the marshal's sale and deed.
This was a suit for partition of certain real property in New
Orleans, and was brought in a district court of Louisiana. The
defendants had judgment, which was affirmed by the supreme court of
the state, and the plaintiff brought the case here on writ of
error. The facts sufficiently appear in the opinion of the
Court.
MR. JUSTICE FIELD delivered the opinion of the Court.
This is a suit for a partition of certain real property situated
in the City of New Orleans in the State of Louisiana. The plaintiff
alleges that he is the owner of an undivided half of the premises;
that the defendants are the owners of the other undivided half; and
that from the nature of the property it cannot be conveniently
divided in kind. He therefore asks a partition by licitation --
that is, by a sale of the premises and a division of the
proceeds.
The plaintiff asserts title to an undivided half by a deed of
the marshal of the United States, executed to him upon a sale under
a decree of the district court condemning and forfeiting
Page 96 U. S. 292
the property to the United States, in proceedings taken against
it as the property of Charles M. Conrad, under the Confiscation Act
of July 17, 1862.
The defendants assert title to the whole property by a sale by
public act, made to them by their father, the said Charles M.
Conrad, before the recorder and
ex officio notary public
of the Parish of St. Mary in Louisiana on the 3d of June, 1862.
This parish was then within the Confederate lines, and the Conrads,
father and sons, were engaged in the rebellion against the United
States. The act of sale was not placed on record in the City of New
Orleans until 1870. The good faith of the parties in the
transaction is not questioned, nor is the sufficiency of the
consideration. But it is contended that the parties, being public
enemies in hostile territory, were incompetent at the time to
transfer or to accept the title to real property situated within
the federal lines. And if this position should not be sustained, it
is further contended that the act of sale not having been recorded
in the City of New Orleans until after the condemnation of the
property by the district court and its sale by the marshal, the
plaintiff, as purchaser, took the title unaffected by the
transaction -- in other words, that his position is that of a third
party buying upon the faith of the title standing in the name of
the elder Conrad upon the public records.
We have recently had occasion in
Conrad v. Waples,
supra, p.
96 U. S. 279, to
consider the first of these questions, and it will be unnecessary
here to do more than refer to our opinion in that case. And the
second question requires only a brief notice. The object of
requiring a public record of instruments affecting the title to
real property is to protect third parties dealing with the vendor
by imparting notice to them of any previous sale or hypothecation
of the property and to protect the purchaser against any subsequent
attempted disposition of it. In Louisiana, the conveyance is valid
between the parties without registration, and passes the title. The
only consequence of a failure of the purchaser to place his
conveyance on the records of the parish where the property is
situated is that he is thereby subjected to the risk of losing the
property if it be again sold or hypothecated by his vendor to an
innocent third party or if it be seized and sold by a creditor of
his vendor for the latter's
Page 96 U. S. 293
debts. The second purchaser from the vendor and the bidder at
the judicial sale would in that case hold the property. The United
States never stood in the position of a second purchaser of the
property sold by the elder Conrad. They were not purchasers at any
sale of his property. They had caused his estate in the land,
whatever that was, to be seized and condemned. By the decree of
condemnation, that estate vested in them for the period of his
life. His estate for that period was then their property. The
statute declares that the property condemned "shall become the
property of the United States, and may be disposed of as the court
shall decree." It was the property of the United States, therefore,
which was sold and conveyed at the marshal's sale. The United
States acquired by the decree, for the life of the offender, only
the estate which at the time of the seizure he actually possessed,
not what he may have appeared from the public records to possess by
reason of the omission of his vendees to record the act of sale to
them, and that estate, whatever it was, for that period passed by
the marshal's sale and deed -- nothing more and nothing less. The
Registry Act was not intended to protect the United States in the
exercise of their power of confiscation from the consequences of
previous unrecorded sales of the alleged offender. It was in the
power of Congress to provide for the confiscation of the entire
property as being within the enemy's country, without limiting it
to the estate remaining in the offender; but, not having done so,
the court cannot enlarge the operation of the stringent provisions
of the statute. The plaintiff had notice of the character and legal
effect of the decree of condemnation when he purchased, and is
therefore presumed to have known that if the alleged offender
possessed no estate in the premises at the time of their seizure,
nothing passed to the United States by the decree, or to him by his
purchase.
We see no error in the ruling of the Supreme Court of the State
of Louisiana, and its judgment is
Affirmed.
MR. JUSTICE CLIFFORD dissenting.
Power was conferred upon the President, and it was made his duty
by the fifth section of the act to suppress insurrection,
Page 96 U. S. 294
to cause the seizure of all estate and property of the persons
designated in that section, and to apply and use the same and the
proceeds thereof for the support of the army. Proceedings
in
rem were authorized for the condemnation of such estates and
property, the provision being that the proceedings should conform
as nearly as may be to proceedings in admiralty or revenue cases,
and that if the property is found to belong to a person engaged in
rebellion, or who has given aid and comfort thereto, the same shall
be condemned as enemies' property, and shall become the property of
the United States. 12 Stat. 589.
Pursuant to that act, an information in proper form was filed
against the several properties in controversy in these cases, and
the record shows that the same were formally condemned as forfeited
to the United States, as appears by the decree of the district
court, fully set forth in the transcript. Due condemnation of the
several properties having been adjudged, the writ of
venditioni
exponas was issued and the same were sold, the defendant in
the first suit and the plaintiff in the second being the purchasers
of the parcels, the respective titles of which are in controversy
in these suits. Formal conveyances were made to the respective
purchasers, they respectively being the highest bidders for the
several parcels described in their respective deeds of
conveyance.
Certain parcels of the property sold as aforesaid are embraced
in
Conrad v. Waples, which was commenced in the circuit
court by the present plaintiff against the purchaser under the
marshal's sale, and certain other parcels of the property are
embraced in the second suit, which was commenced in the state court
by the grantee of those parcels under the marshal's deed, against
the defendant in error in that case.
Service was made in that case, and the defendant appeared and
set up the seizure of the several parcels as the property of
Charles M. Conrad, and the condemnation and sale of the same as
previously explained, and the conveyance of the said parcels to
him, the defendant, by the marshal as the property of the United
States. Interlocutory proceedings of various kinds followed which
it is not important to notice. All such matters having been
adjusted, the parties went to trial, and the verdict and judgment
were in favor of the defendant. Exceptions were
Page 96 U. S. 295
taken by the plaintiff, and he sued out a writ of error and
removed the cause into this Court.
Fee simple title to the premises is claimed by the plaintiff by
virtue of a conveyance from his father, Charles M. Conrad, to
himself and his brother, called in the jurisprudence of that state
an act of sale, which was executed on the 6th of May, 1862, during
the rebellion, before Joseph L. Nettles, recorder in and for the
Parish of St. Helena, which at the time was within the Confederate
lines, the estate and property conveyed being situated in New
Orleans, which at the time was in the possession of the Army of the
United States.
During the trial, the plaintiff offered that act of sale in
evidence in support of his title to the premises in controversy,
and the defendant objected to the introduction of the same upon six
grounds:
1. That the act was not a sale, but a mere giving in payment,
and that no delivery of the property was or could be made inasmuch
as the same was situated within the federal lines, and that the act
was executed within the military lines of the Confederate States,
where the parties thereto 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 in the
Parish of St. Helena, within the Confederate lines, could not be
legally recorded in
Page 96 U. S. 296
the Parish of Orleans, which at that date was within federal
military lines.
These several objections to the evidence offered were sustained
by the court, and the plaintiff excepted, which presents the
principal question in the case.
Primarily,
Burbank v. Conrad was a petition in the
Fifth District Court of the city for partition, the present
plaintiff, as petitioner, claiming one undivided half part of the
premises under the aforesaid confiscation proceedings and sale.
Process was served, and the defendants appeared and pleaded that
the sale under those proceedings was void, the supposed owner of
the premises having had, at the filing of the information, no
right, title, or interest in the property. Instead of that, that
they were the true and sole owners of the same by virtue of a
notarial act of sale executed by their father June 3, 1862, before
J. G. Parkinson, Recorder of the Parish of St. Mary, which presents
the same question as that involved in the other case, it appearing
that the place where the act of sale was executed was within the
Confederate lines.
Hearing was had and the court rendered judgment in favor of the
petitioner. Prompt appeal was taken by the defendants to the
supreme court of the state, where the parties were again heard, and
the supreme court reversed the decree of the Fifth District Court
and rendered judgment in favor of the defendants, that they have a
valid title to the property described in the petition. Judgment
having been entered in favor of the defendants, the plaintiff sued
out a writ of error and removed the cause into this Court.
Errors assigned by the plaintiff are that the supreme court of
the state erred in reversing the decree of the Fifth District Court
and in entering a decree in favor of the defendants that they had a
valid title, and that they be put in possession of the
premises.
Sufficient appears to show that the parties in each case claim
title to a certain portion of the estate and property condemned as
forfeited to the United States under the before-described
confiscation proceedings. Two of the claimants, to-wit, the
defendant in the first suit and the plaintiff in the second, set up
title as purchasers under the respective deeds of the
Page 96 U. S. 297
marshal given to them respectively as purchasers at the
confiscation sale. On the other hand, the plaintiff in the first
suit and the defendants in the second claim title as grantees of
their father, the respective conveyances bearing date during the
rebellion, but before the passage of the Confiscation Act under
which the several properties were condemned as forfeited to the
United States for the treasonable acts of the father.
Conveyances of the kind appear in the record, the one to the
plaintiff in the first suit having been executed May 6, 1862, in
the Parish of St. Helena, before the recorder of that parish,
within the Confederate lines, the plaintiff alleging that the same
was duly recorded May 31, 1862, and the defendant denying the
allegation in his answer, and the other having been executed to the
defendants in the second suit, June 3, 1862, in the Parish of St.
Mary's, before the recorder of that parish, which was also within
the Confederate lines; nor was the conveyance ever recorded until
the 8th of December, 1870, in the Parish of Orleans, where the
property is situated.
Argument to show that the proceedings to confiscate the
properties in controversy were correct in form is scarcely
necessary, as no attempt is made to impeach their formality.
Seizure of the properties in controversy was duly made under the
act of Congress referred to, and the information charged that the
owner of the properties seized, subsequently to the passage of the
act, did act as a member of the Confederate Congress, and that he
was engaged in armed rebellion against the United States, and that
by reason of the premises the properties described in the
information, and all the right, title, interest, and estate of the
owner, became and were forfeited to the United States and ought to
be condemned to their use.
Due monition issued and was served, which is notice to all the
world, and no appearance having been entered, the information or
libel was taken as confessed. Proofs were taken which fully
established the charges, and the court entered a final decree to
that effect and that the several properties be, and the same are,
hereby condemned as forfeited to the United States.
Sales were subsequently made under a
venditioni exponas
issued in due form, and the defendant in the first case and the
Page 96 U. S. 298
plaintiff in the second case became the purchasers of the
respective properties in controversy in these two suits.
Beyond all doubt, the title of the defendant in the first and
the plaintiff in the second is perfect, and must prevail unless the
claim set up by the plaintiff in the first suit and that set up by
the defendants in the second can be sustained, both of which depend
substantially upon the same state of facts.
Legal seizure of the property condemned was made on the 29th of
July, 1863, and the record shows that the information was filed on
the 7th of August following. Judgment was rendered Feb. 3, 1865,
and the sale followed under the writ of
venditioni exponas
in the regular course of proceedings in such a prosecution.
Jurists of all schools and courts of all nations agree that the
title to real estate is governed by the law of the place where it
is situated. Differences of opinion upon the subject existed at one
time, but the confusion which arose from the application of
inconsistent systems of law to such titles ultimately led courts
and jurists to narrow the law in all suits concerning immovable
property to that of the forum
rei sitae. Whart.Confl.Laws,
sec. 273;
United States v.
Crosby, 7 Cranch 115.
No estate of freehold in land can be conveyed in Massachusetts
unless it be by a deed or conveyance under the hand and seal of the
party, and to perfect the title as against strangers it is further
requisite that the deed should be acknowledged before a proper
magistrate and be recorded in the registry of deeds for the county
where the land lies.
Clark v.
Graham, 6 Wheat. 577;
Kerr v.
Moon, 9
id. 565.
Authorities to that effect are too numerous for citation; nor is
it necessary to extend the list, as the principle is now
universally acknowledged. Suffice it to say, in the language of
Judge Story, that the title to real property can only be acquired,
passed, or lost according to the
lex rei sitae, for which
proposition he refers to the expressive language of Sir William
Grant that the validity of every disposition of real estate must
depend upon the law of the country in which that real estate is
situated.
Curtis v. Hutton, 14 Ves. 541; Story, Confl.Laws
(6th ed.), sec. 424.
Courts and jurists everywhere also agree that all trading in
Page 96 U. S. 299
time of war with a public enemy, unless by permission of the
sovereign, is interdicted when war is declared or duly recognized
by the belligerent parties.
The Hoop, 1 C.Rob. 196;
Exposito v. Bowden, 7 Ell. & Bl. 779;
Griswold v.
Waddington, 15 Johns. (N.Y.) 57; 3 Phill.Int.Law 108;
White v.
Burnley, 20 How. 235.
As soon as war is commenced, all trading, negotiation,
communication, or intercourse between the citizens of the
belligerent countries must cease without direct permission of the
sovereign power. 1 Chitty, Comm.Law, 379; 1 Duer, Ins. 419;
United States v.
Grossmayer, 9 Wall. 72.
Six classes of persons are included in the fifth section of the
act, which makes it the duty of the President to cause the seizure
of all their estate and property, and to apply and use the same,
and the proceeds thereof, for the support of the army.
Due seizure is admitted, but the better opinion is that it was
not intended that the mere act of seizure should vest the property
so seized in the United States, as the seventh section provides
that, to secure the condemnation and sale of any such property
after the same is seized, proceedings
in rem shall be
instituted in the district court, and that if it shall be found
that the property belonged to a person engaged in rebellion, or who
had given aid or comfort thereto, the same shall be condemned as
enemies' property and become the property of the United States, and
may be disposed of as the court shall decree.
Bigelow v.
Forrest, 9 Wall. 350.
Cases arise, undoubtedly, where the property in such a case is
divested out of the owner, and vested in the sovereign, immediately
on the commission of the offense, as where the words of the statute
are that if a certain offense be committed, the forfeiture shall
take place, or that if the described offense is committed, the
property shall be forfeited.
United States v. 1960 Bags of
Coffee, 8 Cranch 398;
United
States v. The Brigantine Mars, 8 Cranch 416;
The Annandale, Law Rep. 2 P. & D. 218;
The
Reindeer, 2 Cliff. 68;
Robert v. Witherhead, 12 Mod.
92;
Wilkins v. Despard, 5 T.R. 112;
Certain Logs of
Mahogany, 2 Sumn. 589;
Henderson's Distilled
Spirits, 14 Wall. 44.
Unless the words of the statute are absolute, no such
consequences follow until the property is condemned, as where
the
Page 96 U. S. 300
sovereign may by the terms of the same proceed against the
property or the person who committed the wrongful act, it is held
that the title does not vest in the sovereign until the property is
condemned.
United States v.
Grundy, 3 Cranch 338.
Judgment was rendered Feb. 3, 1865, in the confiscation
proceedings, and from that time it must be admitted that the title
to the several properties was vested in the United States unless
the title set up by the plaintiff in the first case and by the
defendants in the second can be sustained.
Sect. 5 of the Act of July 13, 1861, provided that the
President, whenever the contingencies therein specified should
occur in any state or states or parts thereof, might by
proclamation declare that the inhabitants of such state, section,
or part thereof are in a state of insurrection and that thereupon
all commercial intercourse by and between the same and the citizens
thereof, and the citizens of the rest of the United States, shall
cease and be unlawful so long as such condition of hostility shall
continue. 12 Stat. 257.
Conformably to that authority, the President, on the 16th of
August in the same year, issued his proclamation, in which he
declared that the inhabitants of certain states, including the
State of Louisiana, were in a state of insurrection against the
United States and that all commercial intercourse between the same
and the inhabitants thereof, with certain exceptions not material
to be noticed in this investigation, and the citizens of other
states and other parts of the United States is unlawful, and will
remain unlawful until such insurrection shall cease or has been
suppressed.
Id., 1262.
Provision was also made by the fifth section of the said act of
Congress that all goods and chattels, wares and merchandise,
coming, after such proclamation, from such state or section into
the other parts of the United States, and all proceeding to such
state or section by land or water shall, together with the vessel
or vehicle conveying the same, or conveying persons to or from such
state or section, be forfeited.
The
Reform, 3 Wall. 617.
Public war, duly declared or recognized as such by the warmaking
power, imports a prohibition by the sovereign to the
Page 96 U. S. 301
subjects or citizens of all commercial intercourse and
correspondence with citizens or persons domiciled in the enemy
country.
Jecker v.
Montgomery, 18 How. 110;
The
Rapid, 8 Cranch 155;
Potts v. Bell, 8 T.R.
548; Maclachlan, Shipp. 473; Wheaton, Int.Law, by Lawrence, 547;
The William
Bagaley, 5 Wall. 377.
Attempt was made in argument to distinguish the first case from
the second upon the ground that the supposed notarial act of sale
of the 6th of May, under which the plaintiff in the first suit
claims title, was, on the 31st of that month, registered in the
Parish of Orleans, where the land is situated, but it will be seen
by reference to the record that the act of sale was made subsequent
to the secession of the state, and during the period when the
parish where the property is situated was temporarily within the
Confederate lines.
Enemy parties conveying or accepting conveyances of real
properties under such circumstances must be understood to do so
with the knowledge that the rightful sovereign, if he is successful
in regaining the sovereignty of the state or district, may refuse
to recognize the validity of such a transfer in a case where it
appears that the grantor, before the act of transfer was executed,
had been guilty of treasonable acts against his rightful sovereign,
and that both grantor and grantees were at the time engaged in war
against the rightful government.
United
States v. Huckabee, 16 Wall. 414.
Proof of a decisive character is exhibited in the record that
the rule of the Confederate States over the parish where the
property is situated ceased on the 2d of May, 1862, when the
national army landed there and took possession of the parish.
The Venice, 2
Wall. 258;
The Ouachita
Cotton, 6 Wall. 521.
Military possession by the Confederates followed secession, and
the insurgents continued to hold the city from the date of
secession to the time when our army landed there, or a few days
before, when the mayor of the city declared that the city was
undefended and at the mercy of the victors.
Both the vendor and vendees were engaged in open rebellion
against the United States at the time the notarial act of sale was
passed within the insurgent lines, the property at the time being
situated within the federal lines, from which it follows
Page 96 U. S. 302
that the vendor was legally incompetent to make sale and
delivery of the property to the vendees and that the vendees were
legally incompetent to accept sale and delivery from the rebel
vendor. Actual delivery of the property could not lawfully be made,
nor could the supposed act of sale be lawfully registered in the
parish where the land is situated, the proclamation of the
President providing that all commercial intercourse between the
insurrectionary state and the inhabitants thereof with the citizens
of other states and other parts of the United States is unlawful
and will remain unlawful until such insurrection shall cease or has
been suppressed. 12 Stat. 257, 1262.
Courts of justice, even with the consent of the opposite party,
will not enforce a right or contract in violation of a statute,
although not expressly declared void by the enactment. Powell,
Contr. 166; Comyns, Contr. 59;
Bank v. Owens,
2 Pet. 527;
Coppel v.
Hall, 7 Wall. 542.
In war, says Chancellor Kent, every individual of the one nation
must acknowledge every individual of the other nation as his own
enemy because the enemy of his country. It reaches to intercourse,
transfer or removal of property, to all negotiation and contracts,
to all communication, to all locomotive intercourse, to a state of
utter occlusion to any intercourse but one of open hostility, and
to any meeting but in actual combat.
Griswold v.
Waddington, 16 Johns. (N.Y.) 438;
The
Rapid, 8 Cranch 155.
All intercourse, says Story, between the subjects and citizens
of the belligerent countries is illegal unless sanctioned by the
authority of the government or in the exercise of the rights of
humanity.
The Julia, 8
Cranch 181.
If a plaintiff cannot open his case without showing that he has
broken the law, courts of justice will not assist him to recover,
whatever the equities of his case may be.
Fowler v.
Scully, 72 Pa.St. 456.
Support to the opposite theory, it is supposed, may be derived
from the case of
Kershaw v. Kelsey, 100 Mass. 561, but it
is difficult to see what foundation there is for the supposition if
the decision is confined, as it should be, to the matters involved
in the controversy. Take the facts as reported, and they are
Page 96 U. S. 303
as follows: that the defendant, a citizen of Massachusetts,
being in Mississippi in February, 1864, took a lease for one year
from the plaintiff, a citizen of Mississippi, of a cotton
plantation situated in the latter state, for a rent of $10,000,
half in cash and half to be paid out of the cotton crop, the lessor
agreeing to deliver and the lessee to receive and pay for the value
of the corn then on the plantation.
It did not appear whether the defendant went into that state
before the war or after it began; nor was there any evidence of any
intent on the part of either party to violate or evade the laws or
to oppose or injure the United States. Every presumption of that
sort is negatived, but it appeared that the defendant paid the
first installment of rent, took possession of the premises, used
the corn there, provided the plantation with supplies to the amount
of $5,000, planted and sowed it, and, in the early spring, was
driven away by rebel soldiers, and never but once afterwards
returned to the plantation.
How long the defendant had resided there prior to the contract
of lease did not appear, but the report states that the plaintiff
continued to reside on the plantation, raised a crop of cotton
there, and delivered it to the son of the defendant, by whom, in
the autumn of the same year, it was forwarded to the defendant, who
sold it and retained the profits, amounting to nearly $10,000.
Speaking of the facts, the court said in effect that the lease
was made within the rebel territory, where both parties were at the
time, and that it seems to contemplate that the lessee should
continue to reside there throughout the term; that the rent was in
part paid on the spot, and that the residue was to be paid out of
the produce of the land; that the corn the value of which is sought
to be recovered in the action was delivered and used on the
plantation; that no agreement was made that the cotton crop should
be transported, or the rent sent back, across the line between the
belligerents; that no contract or communication appears to have
been made across that line relating to the lease, to the delivery
of possession of the premises, or of the corn, or the payment of
the rent of the one or the value of the other.
These limitations, with one other which follows, should be
Page 96 U. S. 304
carefully observed, as they furnish the key to what the court
subsequently decided. None of the facts as reported are of a
character to require any modification of the laws of war as
expounded by the great jurists, to whose decisions reference has
already been made, and the court in that case very justly remarked
that the fact that the cotton was subsequently forwarded by the son
to the defendant, though it may have been unlawful, cannot affect
the validity of the lease, as the lease does not contain any such
stipulation.
Based upon the reported case, as thus very clearly explained,
the court decided that the facts did not contravene the law of
nations or the public acts of the government, even if the
plantation was within the enemies' lines, and that the plaintiff
upon the case reported is entitled to recover the unpaid rent and
the value of the corn. Many other matters are doubtless the subject
of remark in the opinion, but the propositions as stated embody
everything which the justices of the court decided in the case.
Their decision is plain, and they make two admissions -- one
direct and the other necessarily implied -- which are equally
plain:
1. That the act of forwarding the cotton to the defendant was
unlawful.
2. That if the lease had contained any agreement that the cotton
crop should be transported or the rent sent back across the line
between the belligerents, or if any contract or communication had
been made across that line relating to the lease, the delivery of
possession of the premises or of the corn, or the payment of the
rent of the one or the value of the other, the agreement or
contract would have been void, as contravening the law of nations
and the public acts of the United States.
Viewed in the light of these suggestions and the authorities
referred to, it is clear that the registration of the act of sale
of the 6th of May was unlawful and that the title in the first case
cannot be distinguished from the title in the second case, where no
registration was made in the parish where the land is situated,
until Dec. 8, 1870, nearly six years subsequent to the date of the
decree of condemnation. Nor does the registration in the first case
give any more effect in law to the title in that case than belongs
to the title in the second, as it purports
Page 96 U. S. 305
to have been made May 31, 1862, nearly a month subsequent to the
time when the army of the United States landed in the City of New
Orleans and put an end forever to the temporary and unlawful
occupation of that city by the military forces of the Confederate
States.
Suppose that such a registry, if it had been made during the
Confederate occupation, would have been valid as a transaction
between Confederates within the Confederate lines, still it is
clear that a notarial act of sale, executed before a Confederate
notary within the Confederate lines, could not be lawfully recorded
in the Parish of New Orleans at any time after the army of the
United States landed there and took permanent possession of the
parish. Beyond all question, such a registration was unlawful and a
nullity, as neither the grantor nor grantees could use the federal
mails to send the document there for registration, nor could they
travel there for that purpose in person or send an agent there to
forward the same for registration.
Dean v.
Nelson, 10 Wall. 158;
Lasere v.
Rochereau, 17 Wall. 437;
Montgomery
v. United States, 15 Wall. 395.
One of the immediate and important consequences of the
declaration of war is the absolute interruption and interdiction of
all commercial correspondence, intercourse, and dealing between the
subjects of the two countries. 1 Kent Com. (12th ed.) 66. Nothing
is better settled in legal decisions than the doctrine that war
puts an end at once to all dealing and all communication of the
citizens of one belligerent country with those of the other
belligerent country, and that it places every individual of the
respective governments, as well as the governments themselves, in a
state of hostility. 1 Kent Com. (12th ed.) 67;
Potts v.
Bell, 8 T.R. 548;
Woods v. Wilder, 43 N.Y. 168.
Judicial decisions to that effect are very numerous, and the
Supreme Court of Massachusetts admits that the law of nations, as
judicially declared, prohibits all intercourse between citizens of
the two belligerents inconsistent with the state of war, and that
the rule in that regard prohibits every act of voluntary submission
to the enemy, and every act or contract which tends to increase his
resources, and every kind of trading or commercial intercourse,
whether by transmission of money or goods, or
Page 96 U. S. 306
orders for the delivery of either, between the two countries,
directly or indirectly, or through the intervention of third
persons or partnerships. Lawrence's Wheat. 557.
Neither delivery of the subject matter nor registry of the act
of sale could lawfully be made, and whatever was unlawfully done
was a nullity, leaving the title of the property as if the unlawful
act had not been done.
Provision is made by law for the appointment of a register of
conveyances in that parish, and it is made his duty to register all
acts of transfer of immovable property passed in that city and
parish, in the order in which the acts shall be delivered to him
for that purpose, and it is provided that acts, whether they are
passed before a notary public or otherwise, shall have no effect
against third persons but from the day of being registered.
Rev.Stat. La. (1870), p. 613, sec. 3159.
Conveyances of the kind must be registered in the public
registry of the parish or district where the premises are situated.
Sess.Acts La. (1827), p. 136; Rev.Stat. La. (1870), p. 613;
Dooley v. Delaney, 6 La.Ann. 67; Code 1824, arts. 2242,
2250, 2417; Code 1870, arts. 2246 to 2266.
Sales of immovable property made under private signature do not
have effect against the creditors of the parties nor against third
persons in general only from the day such sale was registered
according to law and the actual delivery of the thing sold took
place. Art. 2442.
Registration of such a conveyance in another and different
district is not notice to third persons, subsequent purchasers, or
attaching creditors.
Pierse v. Blunt, 14 La.Ann. 345;
Carraby v. Desmarre, 7 Mart.N.S. (La.) 661;
Wells v.
Baldwin, 5
id. 146;
Smith v. His Creditors,
21 La.Ann. 241. State authorities to that effect are numerous, but
inasmuch as the question is one of decisive importance, it is
deemed advisable to refer to all the leading cases.
Lee v.
Darramon, 3 Rob. (La.) 161;
Gradenigo v. Wallett, 9
id. 14;
Crear v. Sowles, 2 La.Ann. 598;
Tulane v. Levinson, id. 787;
Tear v. Williams,
id. 869; Sess.Laws La. (1855), p. 345.
Third persons, with respect to a contract or judgment, are
defined by the Code of 1824 to include all persons who are not
parties to a judgment or contract, and the same definition is
Page 96 U. S. 307
given to the same phrase by the Code of 1870, which is more
immediately applicable to these cases. Code 1824, art. 3522, n. 32,
p. 1110; Code 1870, art. 3556, n. 32, p. 428.
Persons having no pecuniary interest in an appeal and not
aggrieved by the decree are properly denominated third persons in
respect to the appeal.
Morrison v. Trudeau, 1 Mart.N.S.
(La.) 384;
Williams v. Trepagnier, 4
id. 342;
Lafitte v. Duncan, id., 622;
Succession of Henderson
v. Cross, 2 Rob. (La.) 391.
Those not parties to a written agreement or instrument by which
their interest in the thing conveyed is sought to be affected are
properly designated as third persons in the jurisprudence of that
state.
Brosnaham v. Turner, 16 La. 433;
Wade v.
Marshall & James, 5 La.Ann. 157;
Williams v.
Hagan, 2 La. 125; Code 1824, art. 3522, n. 32;
McManus v.
Jewett, 6 La. 537;
Kittridge v. Landry, 2 Rob. (La.)
72.
When the act of sale of the 6th of May was first offered in
evidence, it was not accompanied by the certificate of registry,
and was excluded upon the grounds heretofore sufficiently
explained. All that need be added in support of that ruling is to
say that it is fully sustained by the statute law of the state and
by many decisions of the highest court of the state, to which
reference has already been made. Ruled out as it was on that
occasion, the plaintiff offered it again with the certificate of
registry annexed, and it was again excluded upon the further ground
that the registration was null and void and inadmissible in
evidence because the vendees at the time, and before and
afterwards, were sojourning in the Parish of St. Helena and were
enemies of the United States, and therefore that the registration
of the act of sale could not legally be made.
Sufficient has already been remarked to show that that ruling is
correct unless it be denied that the statute law of the state, and
the repeated decisions of the highest court of the state for nearly
seventy years, furnish the rule of decision. Since the 24th of
March, 1810, it has been law in that state that
"No notarial act concerning immovable property shall have any
effect against third persons until the same shall have been
recorded in the office of the judge of the parish where
Page 96 U. S. 308
such immovable property is situated."
3 Martin's Digest 140, sec. 7; Rev.Stat.La. (1856) 453;
Rev.Stat.La. (1870) 617.
Any discussion of the facts is unnecessary, as it is conceded
that the vendor and the vendees were, at the date of the supposed
act of sale, resident within the Confederate lines, and that they
were enemies of the United States, that the grantor was a member of
the Confederate Congress, and that the grantees were officers in
the Confederate army and were engaged in rebellion against the
lawful government, from which it follows that a lawful registry of
the property could not be made in the parish where it is situated,
without which the express statute law of the state is that the
supposed act of sale shall not have any effect against third
persons.
Nor is there any difficulty in supporting the decision of the
court upon the other ground assumed in the ruling, to-wit that the
supposed act was but the giving in payment, as understood in the
jurisprudence of that state, which is never effectual to pass the
title of property in that state, whether movable or immovable,
without delivery. It is of the very essence of the
dation en
paiement, say the supreme court of the state, that delivery
should actually be made. Neither a sale nor a
dation en
paiement can avail against an attaching creditor when there
has been no delivery.
Schultz v. Morgan, 27 La.Ann.
616.
Pothier says that a gift in payment is an act by which a debtor
gives a thing to his creditor, who is willing to receive it in the
place and in payment of a sum of money or of some other thing which
is due to him. Pothier, by Cushing, sec. 601, p. 365; 7 Merlin,
Repertoire,
verba dation en paiement, p. 55.
Giving in payment, as defined in the jurisprudence of Louisiana,
is an act by which a debtor gives a thing to the creditor who is
willing to receive it in payment of a sum which is due, and the
decision is that it differs from the ordinary contract of sale in
this, that the latter is perfect by the mere consent of the
parties, even before the delivery, while the giving in payment is
made only by delivery. Code 1824, arts. 2625, 2626. And the Code of
1870 employs the same exact words. Arts. 2655, 2656;
Durnford
v. Brooks, 3 Mart. (La.) 222;
s.c. id., 269.
Page 96 U. S. 309
Separate examination of the second case in this behalf is quite
unnecessary, as it is not pretended that the act of sale from the
father to the sons was registered in the parish where the property
is situated until nearly six years subsequent to the pretended
sale, so that if the universal rule of law is to prevail, that the
transfer of immovable property depends upon the law of the place
where it is situated, then it is clear that the supposed vendees
acquired no title to the premises.
Watkins
v. Holman, 16 Pet. 57;
Corbett v.
Nutt, 10 Wall. 464;
McGoon v.
Scales, 9
id. 23; Lawrence's Wheat. 164,
165.
Wheaton says that the law of the place where real property is
situated governs exclusively as to the tenure, the title, and the
descent of real property, and the notes of the editor fully confirm
the proposition.
War, in our jurisprudence, is not an absolute confiscation of
the property of the enemy, but simply confers the right of
confiscation. Hence it was early determined that British property
found in the United States, on land, at the commencement of
hostilities with Great Britain, could not be condemned as enemy
property without a legislative act authorizing its confiscation.
Brown v. United
States, 8 Cranch 110; Lawrence's Wheat. 530.
Discussion of that subject, however, is wholly unnecessary, as
the property in question in the cases before the Court was
confiscated under an act of Congress which, it is admitted, gave
unquestioned jurisdiction to the district court which entered the
decree of condemnation.
From the passage of the act of Congress, it became the duty of
the President to cause the seizure to be made, and it is not
questioned that the power conferred was properly exercised, nor is
it denied in argument that all the proceedings were correct, the
only defense in the one case and ground of claim in the other being
that the person named in the information as the guilty party was
not the lawful owner of the property at the time of the seizure.
Most of the grounds of that claim and defense have already been
sufficiently examined, and, it is believed, have been fully
refuted. Only one more remains for examination, and that is that
the United States are not a third party within the meaning of the
state law, and therefore that
Page 96 U. S. 310
an act of sale never registered in the parish where the property
is situated is sufficient to defeat the title of a purchaser
derived under the confiscation proceedings and the decree of
condemnation.
Such a theory finds no support in the words of the act of
Congress, nor is there any authority to sustain it other than what
is found in the opinion of the state court in the case now here for
reexamination.
Burbank v. C. A. & L. L. Conrad, 27
La.Ann. 152. Cases of the kind are never regarded as authority, for
the reason that they are, by the express words of the act of
Congress providing for their review, subject to be modified or
reversed; nor can it be admitted that there is any foundation for
such a rule, as it would render the Confiscation Act a public snare
and a delusion.
Subsequent purchasers and attaching creditors, it is admitted,
would find protection in such a case, but the argument is that
enemies of the United States engaged in war against the lawful
government, and resident in the enemy territory, may defeat the
right of the government to punish treason by secret transfers of
enemy property situated within the lines of the federal army
without its being possible for the officers of the United States to
ascertain to whom any such transfer was made.
Unlawful registration is no better than none at all, for the
reason that, being void, it does not operate as notice to any third
party, and, if so, then it follows that neither the United States
nor the grantees of the United States had any knowledge that the
title of the guilty party had been previously transferred under the
laws of the rebel states. Fraud is not imputed to the United
States, and it is as certain as truth that the purchasers of the
properties were as innocent of fraud as their grantors.
Congress intended by the Confiscation Act, when it was duly
executed, to deprive the guilty owner of the means by which he
could aid the enemy, and it left in him no estate which he could
convey for that or any other purpose.
Wallach v. Van
Riswick, 92 U. S. 202.
Where a party, domiciled at the beginning of the war in New
Orleans, subsequently went within the rebel lines and there engaged
actively in business, and while so engaged purchased
Page 96 U. S. 311
cotton which, when our army at a later period reoccupied the
city, was seized and sold and the proceeds paid into the treasury,
it was held by the unanimous decision of this Court that the
purchase of the cotton was illegal and void and that it gave the
purchaser no title whatever.
Mitchel v. United
States, 21 Wall. 350;
Desmare v. United
States, 93 U. S. 605.
Whatever interest he had in the property had been seized as
forfeited to the United States and placed, pending the suit, beyond
his reach or that of his creditor. All subsequently acquired rights
were subject to the prior claim of the United States, if perfected
by a decree of condemnation.
Pike v. Wassell, 94 U. S.
711.
Human ingenuity, however great, cannot distinguish the principle
ruled in those cases from the case before the Court, and still it
is insisted in argument that the grantees in the deed from the
guilty owner acquired a good title against the United States,
without delivery of the property and without legal registration in
the parish where the property is situated. Immovable property, says
Woolsey, in his treatise on International Law, follows the
lex
rei sitae, or place where it lies, and he adopts the rule
promulgated by foreign writers that he who wishes to gain, have, or
exercise a right to such property betakes himself for that purpose
to its place and subjects himself voluntarily to the local law
which rules where the property is situated. Woolsey, Int.Law �
71.
Foreign codes, jurists, and the decided cases, says Westlake,
agree with the common law in maintaining the exclusive claims of
the situs to the jurisdiction concerning immovables. Differences of
opinion, it is said by Burge, exist among jurists as to the rule of
decision where the contract affects the person as well as things,
but he says there is no difference among them in adopting the
lex loci rei sitae in all questions regarding the
modification or creation of estates or interests in immovable
property. 2 Burge, Com. on Col. & For.Laws, c. 9, p. 841.
Obligations to convey, if they be perfected
secundum legem
domicilii, may be binding, but the conveyances themselves of
immovable property will not be effectual unless executed according
to the requirements of the local law. In the conveyance of
immovable property or of any right affecting the same, the
Page 96 U. S. 312
grantor must follow the solemnities of the law of the place in
which the property lies and from which it is impossible to remove
it, for though he be subject with respect to his person to the
lex domicilii, that law can have no authority over
property which has its fixed seat in another political jurisdiction
and which cannot be tried but before the courts and according to
the laws where it is situated.
Two fatal defects therefore exist in the supposed title of the
sons to the properties in controversy, as shown by the most
conclusive evidence:
1. That the subject matter of the respective sales was never
delivered to the supposed grantees, as required by the
lex loci
rei sitae.
2. That neither of the supposed acts of sale was ever lawfully
registered in the parish where the property is situated; from which
it follows, in case either of the alleged defects is shown, that
the decree of condemnation vested the title to the same in the
United States.
Apply those rules to the case before the Court and it is clear
that the judgment in the first case should be affirmed, and that
the judgment in the second case should be reversed.