A marshal's deed which includes, with certain lands legally sold
under the Confiscation Act of July 17, 1862, 12 Stat. 589, a parcel
not mentioned either in the information, the monition, or the
decree of condemnation under which the sale was made passes no
title to such parcel.
This was an action brought in the Fourth District Court of the
Parish of New Orleans by Thomas J. Semmes, against Edward W.
Burbank, for the recovery of one-half of lot No. 15, fronting on
Edward Street, in the City of New Orleans, in the square bounded by
Annunciation, Benjamin, St. Thomas, and Edward Streets.
Semmes prayed that he be adjudged the lawful owner of the lot
and entitled to the possession thereof.
Burbank claimed title as the purchaser under a
venditioni
exponas directed to the marshal of the United States for the
then Eastern District of Louisiana, issued by the district court
for that district in
United States v. Six Lots of Ground,
property of Thomas J. Semmes. The suit was brought under the Act of
Congress of July 17, 1862, 12 Stat. 589. The marshal conveyed the
lot to Burbank by deed bearing date June 15, 1865. Semmes was the
owner of several lots in that square, and by the decree of
condemnation rendered in that suit his title in and to lots 14, 16,
17, and part of 18 was divested. Neither in the libel, the
monition, the decree of condemnation, nor the writ was lot 15
mentioned.
A judgment was rendered for the plaintiff, which was affirmed by
the supreme court of the state, and Burbank then sued out this writ
of error.
MR. JUSTICE CLIFFORD delivered the opinion of the Court.
Seizure of the estate, property, money, stocks, credits, and
effects of certain persons engaged in rebellion was authorized to
be made by the act of Congress to suppress insurrection,
Page 99 U. S. 139
and it was made the duty of the President to apply the proceeds
of the same when condemned to the support of the army. 12 Stat.
590.
Proceedings
in rem on the 7th of August, 1863, were
instituted in the District Court for the Eastern District of
Louisiana under the said confiscation act against six certain lots
of land, as the real property of the original plaintiff in the
present suit, which resulted, on the 5th of April, 1865, in a
decree of that court condemning the property described in the
information. On the 11th of the same month, a writ of
venditioni exponas was issued commanding the marshal to
sell the property on the day named in the writ, but the marshal did
not sell the same on that day, for the want of bidders. Unable to
comply with the order in that respect, he withdrew the property
from sale and gave a new notice, as directed by the prior order of
the court.
Two lots of land were embraced in the information and in the
decree of condemnation, which in fact were not the property of the
present plaintiff. Both of those lots belonged to an innocent third
person, and the true owner of the same in the meantime, to-wit, on
the 2d of May in the same year, filed a petition in the same court
setting up his right to the two lots and stating that they were
improperly advertised for sale by the marshal, and prayed the court
to open the decree to enable him to assert his title. Consent in
writing to that effect having been given by the district attorney,
the court granted the prayer of the petitioner and opened the
decree for the purpose of enabling the intervenor to submit his
claim to those two lots, as shown by the evidence. 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. Due correction of the decree of condemnation having
been made, the return of the marshal shows that he sold the residue
of the lots described in the information, pursuant to the second
advertisement, for the amount specified in the record, and that he
paid the money into the registry of the court.
Subsequent application was made by the present plaintiff to set
aside the default against him and for leave to file his claim
Page 99 U. S. 140
and answer. Leave to that effect was granted and, due notice to
the purchaser of the lots having been given, he appeared and filed
exceptions to the proceedings. Both parties were heard, and the
court overruled the exceptions of the purchaser, set aside the
default of the defendant, and finally rendered judgment dismissing
the information and restored the property to the original
owner.
Proper steps were taken in behalf of the United States to remove
the cause into the circuit court, where the judgment of the
district court was in all things reversed and judgment rendered
that the original judgment rendered by the district court should
stand and remain in full force and effect and that the sale made by
the marshal do stand confirmed, which decree of the circuit court
was subsequently affirmed in this court.
Semmes v. United
States, 91 U. S. 21;
United States v. Six Lots of Ground, 1 Woods 234.
None of the foregoing proceedings are now controverted by either
of the parties to the present controversy, but the plaintiff
instituted the present suit in the Fourth District Court for the
Parish of Orleans, in which he alleges that he is the sole owner
and absolute proprietor of the lot of land described in the
complaint as No. 15 on the plan therein referred to, and he avers
that the defendant, on the 17th of June, 1865, unlawfully obtruded
himself into and took possession of the said lot, with the
buildings thereon, and has ever since withheld and now withholds
possession of the same from the petitioner.
Service was made, and the defendant appeared and filed an
answer, in which he admits that he is in possession of the premises
but alleges that he is the owner and possessor of the same in good
faith, by virtue of an adjudication to him at the marshal's sale
under the before-mentioned writ of
venditioni exponas, and
he makes profert of the marshal's deed to him of the premises as
evidence of his title. Proofs were taken, hearing had, and the
court of original jurisdiction entered a decree that the plaintiff
is the lawful owner of the lot with the improvements described in
the complaint.
Conclusive proofs were introduced by the plaintiff showing that
he was the lawful owner of the lot in question prior to the
confiscation proceedings, and that he acquired the fee simple
Page 99 U. S. 141
title to the same by exchanging part of lot 13 for the same with
the former owner of the lot in question.
Beyond all doubt the title of plaintiff to the same is perfect
unless the lot was condemned and the title to the same conveyed to
the defendant by virtue of the marshal's sale under the
confiscation proceedings. Suffice it to say that the defendant
claims title to the premises upon no other ground, and in respect
to that, the subordinate court remarked that neither in the
information nor the monition or the decree of condemnation is there
any reference whatever to the lot in question or to the fractional
part thereof purchased by the complainant, from which it follows to
a demonstration that the property was never condemned as forfeited
to the United States. Nor has the defendant any other evidence of
title than what is exhibited in the deed of the marshal, and it is
clear that inasmuch as the decree of condemnation did not apply to
the lot in controversy, the marshal's sale of the same was utterly
without warrant or authority of law, and that as against the
plaintiff it can have no effect to change the ownership of the
premises.
Application for new trial was made by the defendant, which was
overruled, and he appealed to the supreme court of the state, where
the parties were again heard, and the supreme court of the state
affirmed the judgment of the subordinate court. Immediate steps
were taken by the defendant to remove the cause into this court for
reexamination.
Of the errors assigned, three only need be noticed, as the
others are deemed immaterial: 1. that the court decided that the
confiscation proceedings did not include the lot in question, upon
insufficient grounds; 2. that the property was condemned as a
whole, and not the particular lots of which it was composed; 3.
that the owner, inasmuch as he did not point out the defect of
description at the trial, is estopped to claim the property.
Semmes v. Burbank, 28 La.Ann. 694.
Propositions of like character, it seems, were presented to the
state supreme court, and it is difficult to see what better answer
can be given to them than that found in the opinion of that
court.
Half of lot 15 is the subject of the present controversy, which
fronts on Edward Street in the square bounded as described
Page 99 U. S. 142
in the petition. Title to the same is claimed by the defendant
under the decree of confiscation and the sale by the marshal under
the writ of
venditioni exponas. He admits that the
property belonged to the plaintiff prior to those proceedings, but
contends that the title was conveyed to him by the marshal's deed.
On the other hand, the plaintiff concedes that the confiscation
proceedings were regular, but avers that the property in question
was not embraced in those proceedings.
Six lots were described in the information, two of which,
sometimes described as one, did not belong to the accused party and
were in the course of the proceedings restored to the true owner.
By the decree of condemnation, the title of the plaintiff, as the
accused party, was divested of lots 14, 16, 17, and part of 18. Lot
15, which is the lot in question, was not mentioned either in the
information, the monition, or the decree of condemnation. Nor did
the
venditioni exponas authorize the sale of any other
property than that described in the information and decree of
condemnation. Nothing, therefore, in the semblance of title is
possessed by the defendant except the marshal's deed, and it is
clear that the marshal could only make a valid title to the
property described in the decree of condemnation, as that was all
that became vested in the United States, and it is equally clear
that he could not sell property not authorized by the writ placed
in his hands for execution.
Viewed in the light of these suggestions, it is clear that the
decision of the state supreme court rests upon sufficient and solid
foundations, and that it deserves to be affirmed for the reasons
which the court gave for its conclusions. Nor is it correct to
suppose that the property was condemned as a whole, as the
proposition is refuted by the information, the monition, and the
decree of condemnation. Specific lots being mentioned in the
information and the monition, the accused party had no ground to
suppose that any other portion of his real estate was embraced in
the proceeding, and of course cannot be held to have acquiesced in
its condemnation.
Certain other errors are assigned, but the Court is of opinion
that there is no error in the record.
Judgment affirmed.