
    Anthony Fernandez v. The United States.
    
      On the Proofs.
    
    
      Shortly before the capture of Savannah, a quantity of cotton is sold at about on fourth of Us market value, with an understanding that if it should be saved the vendee will pay something in addition. The additional payment is to be lef to the honor of the vendee. The intent of the parties is not to evade the lair- ■ ful capture of the cotton. The loss feared is its destruction by the Confederat authorities. .Possession, at the same time passes by the delivery of the warehouse receipt The cotton is captured and the vendee hues for the proceeds. The defendants contend that the transaction ivas in fraud of the statute.
    
    Tin- ibnnor decisions of this court holding sales of property in rebel territory made to evade impending capture void, rested on its settled doctrine that by capture the title passed and became complete and indefeasible in the United States. That doctrine the Supremo Court has 'overthrown by the recent decision in Klein's Case, (ante, p. 240.) It follows that the care which this court extended to the supposed rights of rile Government was ovroueous, and that the earlier decisions canuo now be. axrplied to any transaction which, as between the parties tbemsiilvos, would pass the title.
    .1/mr.v. Cooley d- Clarice for the claimant.
    This action was commenced by the claimant, a British subject, under the Act March 1 ‘2th, 1803, to recover the net proceeds of one hundred and eighteen bales of upland cotton, of which he was the owner, which were seized by the Union military authorities after the capture of Savannah, in December, 18(34, and which were subsequently sold in New York, and the proceeds paid into the National Treasury.
    The cotton was purchased in one lot of one Orrin Ilowes.
    An attempt is made by the defense to invalidate the sale, by proof of the declarations of the claimant that the cotton did not belong- to bim ; that he was going to make claim to it; and that 1m would make a good thing out of it. As the witnesses do not agree in their statements, and contradict each other as to the time and place whore made; as two of them show themselves to be personally hostile- to the claimant; and as the subsequent statements of the claimant, if we admit they were made, as attributed to him, cannot change the actual facts, and do not bind him. unless some one was injured thereby,, wo consider the attempt as of little weight. The sale was made before the capture of Savannah by the Union forces, when both the claimant and Howes, the vendor, were free to buy and to sell, and no one had any conflicting lien on, or title to, the cotton.
    
      Mr. Alexander Johnston for the defendants.
   Nott, J.,

delivered the opinion of the court:

This is an action brought to recover the proceeds in the Treasury of one hundred and eighteen bales of cotton captured at Savannah. The proceeds are alleged to be $31,212.40.

The sale of this cotton to the claimant took place in Savannah, on the 15th December, 1SC4. The price paid was $15,000 in Confederate money, with an understanding that if the cotton should be saved, the vendee would pay something in addition. This additional payment was to be left entirely to'the honor of the vendee. Cotton was then selling at $1.25 a pound, a price which would haATe yielded for these one hundred and eighteen bales upward of $68,000. The intent of the parties in buying and selling at less than one-fourth the market value of the cotton seems not to have been to evade its lawful capture in the-hands of a disloyal owner by the approaching army of the United States. The loss feared and expected was its destruction by the Confederate authorities ere they evacuated the city. I-Ience the agreement, that if the cotton should be lost, nothing more was to be paid; if saved, it was to be a matter of hon- or with the purchaser. Possession of the cotton at the same time passed by the delivery of the warehouse receipt.

So far as previous decisions of this court are in point, it Avas held in Gorstman's Case, (3 C. Ols. lb, p. 233,) that where the sale Avas only three days before the capture of the city, at an unusual hour for the transaction of business, and both parties aware of the impending capture, the purchase was in fraud of the act, and the transaction void. In Pollard’s Case, (4. C. Cls. It., p. 338,) where the sale Avas complete on the 12th December, it Avas held A-alid, because at the time it Avas expected that the army of Sherman would debouch about Beaufort. In Wayne's Case, (ibid.,p. 420,) Avhere the sale was on the 10th December, if aatis held A'alkl because of the honesty of the transaction, and the-absence of any intent, in fact-, to evade tbe statute or elude tlie capture.

But all of these decisions rested upon the settled doctrine of this court, that, by capture, under the Abandoned or captured ■property act, the title of the property passed and became complete and indefeasible in the United States. That doctrine the Supreme Court has overthrown by the recent decision in Klein’s Case, and, on the contrary, has held that “ the property of the original owner is in no case absolutely divestedP

It follows that if the Government acquired no rights by capture, and at the most the mere duty of holding, guarding, and disposing of a fund in which it has no legal interest, then the ealous care which this court extended to the supposed rights of the Government in property liable to capture was erroneous, and the earlier decisions do not apply to any transaction which, as between the parties themselves, would pass the title.

In this case the transaction is not disaffirmed by the contracting parties ; the consideration, though inadequate, was valid; the property passed by delivery, made through the transfer of the warehouse receipt, and we cannot say that the purchaser is not the owner.

The seizure of the cotton does not seem to be in dispute, and appears on both of the registration books.

The j udgment of the court is, that the claimant recover the proceeds in the Treasury of one hundred and eighteen bales of upland cotton, captured at Savannah, being $175.33 a bale, amounting in the aggregate to $20,68S.94.  