
    CONES’ CASE William W. Cones v. The United States.
    
      On the Proofs.
    
    
      In October, 1862, the claimantprocures from the eustom-house at Saint Louis a permit to buy cotton in Tennessee, “ within the lines of the United States Army.” Before he avails himself of it the general commanding declares trade and travel open to Oxford, Miss., “beyond which persons not connected with the Army are prohibited from passing.” The claimant proceeds to Oxford and enters into negotiations for the purchase of cotton with persons in the neighborhood. The agreements are reduced to xoriting and signed at a plantation nine milessouth-east of Oxford, and five miles beyond the picket-line ; but the pwchase-money is to be paid on delivery in Oxford. Before delivery the cotton is captured and sent to Memphis. The commanding officer there orders that it be released to the oioners. Thereupon the claimant pays the purchase-money to the owners then in Memphis, and takes from them a receipt acknoioledging the payment “ as per contract; ” but before the cotton is actually released the commanding general orders that it be sold by the quartermaster. This is done and the proceeds are constructively in the Treasury.
    
    I. Where a eustom-house permit issued in October, 1862, under the President’s order, authorizes “partial restoration of commercial intercourse” in Tennessee, is limited to “ within the lines of the United States Army,” and the holder proceeds beyond the lines, and enters into a contract for cotton to be delivered and paid for within the lines, the transaction is illegal and void.
    II. Where cotton which has been captured by the army is ordered to be given up to the owners, and they thereupon, in 1862, being in Memphis, where it also is, sell it to the claimant, he acquires an equitable title thereto, although it is not restored, and, on the contrary, is sold by the quartermaster. Nor is the transaction illegal and void because the claim ant previously entered into an agreement, beyond the United States lines, for the purchase of the same cotton. In such a case the purchaser may bring his suit as owner within the meaning of the Abandoned or captured property Act.
    
    
      The Reporters’ statement of the case:
    The court found the following facts:
    That in pursuance of the authority vested in him by law, the President of the United States, on the 28th of February, 1862, issued the following executive order:
    
      “ Considering that the existing circumstances of the country allow a partial restoration of commercial intercourse between the inhabitants of those parts of the United States heretofore declared to be in insurrection, and the citizens of the loyal States of the Union, and exercising the authority and discretion confided to me by the act of Congress approved July 13, 1861, entitled ‘An act farther to provide for the collection of duties on imports, and for other purposes,” I hereby license and permit such commercial intercourse, in all cases within the rules and regulations which have been or may be prescribed by the Secretary of the Treasury, for the conducting and carrying on of the same on the inland waters and ways of the United States.
    “ABRAHAM LINCOLN.
    “ Washington, February 28, 1862.”
    Under the acts of Congress referred to, regulations concerning internal and coastwise commercial intercourse were promulgated by the Secretary of the Treasury, and orders from the War Department were at the same time issued. Under said regulations the petitioner received from the proper authorities of the Treasury Department licenses to purchase cotton .within the lines of the United States Army.
    On December 15,1862, trade and travel were opened to Oxford, Miss., by the military authorities of the United States. On the 17th or 18th of December, 1862, ike petitioner, at a plantation nine miles southeast of Oxford, and four miles beyond the picket-lines of the Army, entered into the following agreements, the attorney acting for the vendors being duly authorized in each case, said agreements being as follows:
    “Agreement made and entered into, this 18th day of December, 1862, by and between W. W. Cones and Mrs. D. N. Porter, by A. S. Denton, agent, witness:
    “ That said Denton, agent, has this day sold said Cones her entire crop cotton, supposed to be seventy bales, more or less, for which said Cones agrees to pay said Denton, agent, 25 cents per pound on delivery at Oxford in good order.
    “W. W. CONES,
    “By W. A. THORNBURGH.
    “A. S. DENTON,
    “ Attorney for Mrs. D. JV. Porter.”
    “Agreement made and entered into, this 18th day of Decern-ber, 1862, by and between W. W. Oones and E. E. Raglin, agent for the Price estate, by A. S. Denton, attorney, witness:
    “ That said Denton, attorney, has this day sold said Cones the entire crop of cotton on the Price plantation, say one hundred and sixteen bales ready for market, and about twenty bales in the seed, be the same more or less, for which the said Oones agrees to pay said Denton, attorney, 25 cents per pound on delivery at Oxford in good order.
    “W. W. CONES,
    “By W. A. THORNBURGH.
    “ A. S. DENTON, Attorney?
    
    “ Agreement made and entered into, this 18th day of December, 1862, by and between W. W. Oones and M. A. Oliver, by A. S. Denton, agent, witness:
    “ That said Denton, agent, has this day sold said Oones his-entire crop of cotton, supposed to be eighty bales, more or less, for which said Oones agrees to pay said Denton, agent, 25 cents per pound on delivery in good order at Oxford, fifty-one bales already baled, and tweny-niue to bale.
    “W. W. OONES,
    “By W. A. THORNBURGH.
    “A. S. DENTON,
    “ Attorney for Mrs. M. A. Oliver?
    
    The cotton was at this time upon the plantation of the several owners near Oxford. Before there was any opportunity to bring it into Oxford the United States officers in command sent out wagons to seize the cotton of certain obnoxious rebels, who were believed to be prominent in the rebel army; and, at the same time, without any special orders being given for that purpose, this property was seized, these three lots were brought into Oxford, Miss., and finally sent to Memphis. Some sixteen or eighteen hundred bales were thus seized, part of which was released at Oxford, to the owners, and the remainder sent to Memphis.
    Application was made to the military authorities at Memphis for the release of this cotton. Gen. O. S. Hamilton, the highest officer in command in the district, caused the matter to be investigated, and having satisfied himself that the cotton was wrongfully seized, and that there was no ground to justfy its detention, on the 2d of February, 1863, ordered its release there; upon which the petitioner paid to each of the vendors the price agreed upon, and received from each of them a bill of sale, as follows:
    “ MEMPHIS, Tenn., February 3, 1863.
    “ W. W. Cones bought of D. N. Porter:
    “ 64 bales cotton, 32,000 pounds, 25 cents... $8,000
    ‘‘Received payment as per contract.
    “A. S. DENTON,
    “ For D. N. Porter.”
    “ W. W. Cones bought of W. Price’s estate:
    “137 bales cotton, 68,500 pounds, 25 cents per pound.. $17,125
    “Received payment as per contract.
    “Memphis, Tenn., February 3, 1863.
    “A. S. DENTON,
    “ For W. Price’s Fstate.”
    
    “Memphis, Tenn., February 3,1863.
    “ W. W. Cones bought of M. A. Oliver:
    “51 bales cotton, 25,500 pounds, 25 cents. $6,375
    “Received payment as per contract.
    “A. S. DENTON,
    
      “For M. A. Oliver.”
    
    At this time there were at Memphis some seven hundred and seventy-two bales of cotton which had been seized in the Oxford expedition. General Hamilton being confident that at least five hundred bales could never be reclaimed, ordered the sale of that number of bales, leaving two hundred and seventy-two bales to cover the amount claimed by Mr. Cones, and any other claims that might appear to be just. From the commencement of these seizures the separate lots had not been kept distinct, but these two hundred and seventy-two bales were, by Major-General Hamilton’s order, left to represent the cotton bargained to Mr. Cones.
    On the 8th of February, after Mr. Cones had paid for the cotton, and before the order of. General Hamilton had been carried into effect by its surrender, General Grant, the superior officer of General Hamilton, appeared, and directed the quartermaster to sell all the cotton remaining on hand, and repaj to the claimants who could establish their ownership the rate of 25 cents per pound. It does not appear that the claimant ever demanded or received from the quartermaster, or any other person, the amount named in General Grant’s order. The two •hundred and seventy-two bales were accordingly sold on the 19th February, 1863. The proportionate part of this sale being duo to Mr. Cones amounted to the sum of $9^,598.40, which sum was used for the ordinary purposes of the Quartermaster’s Department, and in May, 1865, and subsequently, the amount so used was transferred from the appropriation for the Quartermaster’s Department to the “ abandoned and captured property fund” in the United States Treasury.
    The sale of the cotton by the quartermaster at Memphis was ¡nade in pursuance of an order from the commander of the department, General Grant, as follows:
    “ Bepobe Vicicsbtjbgh, Miss., February 6,1863.
    
      “ Brigadier-General O. S. Hamilton,
    “ Commanding District West Tennessee ;
    
    * # # & * *
    “ I think my order in relation to the sale of cotton a just one, and still adhere to it. If wrong, and so decided by competent authority, the quartermaster can refund the whole amount received for the cotton, deducting all proper charges. You will direct, therefore, that the sale proceed under my order.
    “U. S. GRANT,
    “ Major-General.
    
    
      11 Official copy:
    “R. S. BOWERS,
    
      “ Assistant Adjutant-General.
    
    
      Mr. Charles F. Peck for the claimant.
    
      Mr. Alexander Johnston for the defendants.
   Nott, J.,

delivered the opinion of the court:

On the 28th of February, 1862, the President issued an executive order under the Non-intercourse Act 13th July, 1861. It authorized “ a partial restoration of commercial intercourse ” between the inhabitants of States previously declared to'be in insurrection and the citizens of loyal States, under rules and regulations to be prescribed by the Secretary of the Treasury. On the 28th of August, 1862, the Secretary prescribed certain regulations concerning tills intercourse. Under these new regulations the claimant procured, in October and November, 1862, from the custom-house at Saint Louis, permits to buy cotton in Tennessee and Mississippi, “ within the lines of the United States Army.” On the 11th December, 1862, an order was issued by Major-General Grant declaring that “ on and after Monday, December 15, 1862, trade and travel will be open to Oxford, Miss., which place will constitute the southern limit until further orders, and beyond which persons not connected with the army are prohibited from passingHe also granted the claimant a pass “ to Oxford, Miss., in pursuance of Special Order No. 44,” being the order before referred to.

The claimant proceeded to Oxford, and there entered into negotiations for the purchase of cotton with persons residing in the neighborhood; but the agreements were.reduced to writing and signed at the plantation of one of the parties, nine miles southeast of Oxford, and five miles beyond the picket-line of the army. The agreements were alike, one, for instance, being for the sale of the u entire crop of cotton, supposed to be seventy bales, more or less, for which said (Jones agrees to pay 25 cents per pound on delivery at Oxford in good order.”

Before the cotton was delivered it was captured by the army and sent to Memphis. The seizure was made under a misapprehension that it belonged to certain disloyal parties. This being-ascertained to be an error, the commanding officer at Memphis ordered that the cotton be released to the owners. Thereupon the claimant paid the purchase-money to the owners, then in Memphis, and took from them a receipt acknowledging the payment, “ as per contract.” But before the cotton was actually released an order was received from General Grant directing that it be sold by the quartermaster. It was sold on the 19th of February, 1863, and the money derived from the sale was used for the ordinary purposes of the Quartermaster Department, but in 1865 was transferred to the abandoned and captured property fund.

Upon these facts two questions arise.

As to the first we think that the original agreement between the parties was illegal and void. The claimant’s permit restrained his purchases "within the lines of the United States Army;” the order of General Grant designated Oxford as the southern limit of trade and travel, and the law prohibited commercial intercourse with persons beyond those lines. The place of purchase was not within the enemy’s lines, and no treasonable or improper purpose actuated the party, but it was a place where he was prohibited from going, both by the law and the express orders of the military commander.

As to the second question which the case presents, we are of the opinion that the claimant-acquired a valid title. The transaction was within the United States lines; the original agreement was entirely at an end ; neither party had acted upon it; the claimant had not paid the purchase-money;'the vendor had not made delivery in Oxford, and the cotton had passed into possession of the Government, and was captured property. Affairs were in that condition which would enable the original owner, whose title had not been divested by capture, to sell it to any person, and he elected to sell it to the claimant, who gave for it a valuable consideration. The transaction also took place daring that interval in which the cotton had been returned, constructively, to the. vendor, though not to his actual possession. As between the parties the sale passed the title, and the specific transaction, being entirely beyond the scope of the original agreement, is not tainted with its illegality.

The judgment of the court is that the claimant recover the proceeds of two hundred and fifty-two bales of cotton, amounting in the aggregate to $92,598.40.  