
    James Filor et al. v. The United States.
    
      On the Proofs.
    
    
      A citizen of Florida, in May, 1861, appoints his brother his attorney with power to sell real estate,and goes within the Confederate lines to aid the rebellion. The agent sells the property to A, B, and C, residents of Key West, within the United States lines, and claiming to be loyal citizens. They give their notes for the purchase money, which are held by the agent till the end of the war. The commanding officer at Key West orders that the property be taken possession of for military purposes. Subsequently the United States quartermaster rents it for the defendants from A, B, and C, with the Approval of the commanding officer, who “ cancels” his previous order: No rent is ever paid under the lease, nor does the Quartermaster General ever approve or disapprove the lease.
    
    I. A deed executed in time of war within theUnited States lines to citizens of the United States by the attorney of the grantor, while’the grantor is within the Confederate lines and an alien enemy, is void as a contract between enemies.
    II. A quartermaster cannot bind the defendants upon a lease of realty when the title to the property leased has been unlawfully acquired, against the public policy of the United States and in violation of the law of nations, and the circumstances are known to the quartermaster at the time of executing the lease.
    Messrs. N. P. Chjpman and Wilson for the claimants :
    On the 24th day of January, 1862, the plaintiffs leased to Lieutenant J. S. Gibbs, 1st artillery, United States army, acting quartermaster, for the use of the United States, the property known as “ Tift’s wharf and warehouse,” in the city of Key West, Florida, at the annual rent of $6,000, payable quarterly. The plaintiffs, before the lease was executed and at the time, were, and still are, the ownera of this property. They purchased it from Asa F. Tift, through his agent, Charles Tift, on the 27th day of December, 1861, for the consideration of $18,000.
    
    After the breaking out of the rebellion, Key West became a port of great importance to the United States, and the wharf property in question was of such value that the commanding officer of the United States forces determined to seize it by military authority, and issued an order informally for that purpose. This order, however, was rescinded before it was promulgated, and the contract of lease was executed, this course being deemed best both by plaintiffs and the commanding officer who represented the United States.
    No money rent has ever been paid by the United States officers under this lease — at first by reason of the scarcity of money in the quartermasters’ department at Key West, the plaintiffs having to furnish money to the quartermasters to meet their ordinary expenditures— and afterwards because it was not paid at first, and the back rents had amounted to a large sum. The lease was regularly transmitted to the Quartermaster General, and never disapproved or cancelled by him'. Upon the presentation of the claim to him payment was refused. At the time this action was brought the government retained, and still retains, possession of the property under the lease.
    Asa F. Tift had been the owner of the property over twenty years. When leaving the city for the summer, he gave to his brother, Charles' Tift, a full power of attorney, dated May 21,1861, to sell this property or any other he there owned. Agreeably to the power therein conferred, Charles Tift sold the property to plaintiffs on the 28th day of December, 1861,-by deed in due form made for a good and valuable consideration.
    There are certain substantive allegations in the petition, which we shall assume as placed beyond the province of argument by the proofs. These are the following
    1. That the plaintiffs leased to the United States government, through its proper officer, the property for which rent is claimed, and in the manner and form as alleged.
    2. That the contract stipulated for the payment of $6,0.00 per annum by the government, and that in addition to this sum being agreed upon, the proof shows it to have been not only reasonable but even below its value.
    3. That the government has been in the possession and use of the premises from the 1st day of January, 1862, to this time.
    4. That plaintiffs have kept all their covenants in the lease, and that there is no pretence to the contrary.
    5. That the plaintiffs, Filor and Curry, are before this court without the slightest taint of disloyalty, and with a cloud of witnesses attesting their allegiance to the United. States government.
    ■ As to our title — the record shows prima facie a complete and good title. The power of attorney to Charles Tift was executed in due form, and the deed given by virtue of it to the-plaintiffs bears all the internal and external evidences of genuineness, and purports to have been for a good and valuable consideration. Not only this, but Tift, the former owner, testifies to the execution of the power of attorney, and disclaims 'any and all interest in the property. Charles Tift attests the entire good faith of the sale. No others than the plaintiffs have a shadow of title, and no one but them asserts a title. So far, therefore, as tlie facts go, it seems quite clear that our title is perfect. Whether our title is void or voidable by operation of law, growing out of the conduct of our grantor, is a question which may be hereafter considered, but it has no place in a brief upon the facts, being a question of law purely.
    I." Was the deed, under which the plaintiff's claim, title void hy operation of law, hy reason of the grantor being a person then engaged in rehellion against the United States, the deed being made and executed within a loyal district of the United States, hy an attorney lawfully authorized ?
    
    Key West was not in a state of rebellion 'or insurrection. It was specially and by name excepted in the proclamations of the President declaring States and districts in insurrection. It was a loyal part of the United States, and the Constitution and laws were to be as much respected there as at any other place in the country.
    What law of war makes this deed invalid?
    1. Prohibition of commercial intercourse?
    There can be no pretence of commercial intercourse in the making or delivery of this deed between the loyal and insurrectionary districts of the country. Every act was done in the city of Key West. The owner of the property never knew of its sale until after the close of the rebellion.
    In the circuit court of the United States for Kentucky district, in the case of the United Stales v. The Vendee of Thom.as J. Clay, who went into the rebel army as an officer; when in Louisville, on parole as a prisoner of war taken by our army at Fort Donelson, made a deed to his brother-in-law, dated June 20, 1862, for money due him ; it was decided, December 2, 1863, that the deed was good, and passed the title to the purchaser. ■
    In speaking of this case the chancery court of Louisville says, in the ,case of Allen v. Russel et al:
    
    “Such deeds as this we may properly infer were not deemed void by anything that preceded, for the Congress thought it necessary to declare by the 5th and 6th sections of the act of July 17, 1862, that all sales, transfers and conveyances made thereafter by such persons should be void. Had such a conveyance been void in 1861, there would have been no occasion for this provision in 1862. If an enemy within the rebel lines orders his agent in the north to pay a debt, lawfully contracted before the war, with property or money, I am not aware of anything wrong in this according to the public law of war. Goods might be seized in passing, hut the appropriation of property or money already here is not prohibited.” (3 Am. L. Reg.)
    2. Giving aid to tjie enemy.
    The enemy never got the money, the proceeds of this sale. The notes were given to the agent, Charles Tift, and made payable to his order and deposited with bankers in Havana, subject to the joint order of himself and William Pinkney, one of the plaintiffs. Every possible precautionary measure was taken to prevent their falling into the hands of the enemy.
    3. That the property might have been confiscated for the use of the government as the property of Tift, by reason of his acts of rebellion.
    In 1865 Tift was pardoned by the President for any part he may have taken in the rebellion. The Judge Advocate General admits this would bar any proceeding for confiscation. They, the Judge Advocate and Quartermaster Generals, insist on holding possession of this property, and refusing to pay rent, for the alleged reason that the United States had a right of confiscation. They admit this right to have ceased with the pardon of Tift in 18'65, yet they still hold possession of the property and refuse to pay rent, ever since that time.
    But we say the United States had no right of confiscation of this property.
    It was real estate, immovable property; and suppose it had remained Tift’s, without any sale to the plaintiffs, then by the laws of war it could not have been confiscated. (Phillmore, vol. 3, sec. 99; Vattel, book 3, cb. 5, sec. 76 ; Wheaton, Dana’s Ed., sec. 300.)
    Chancellor Kent, (vol. 1, p. 60) holds the same doctrine, and says the case of Brown, v. The United States, 8 Cranch, 123, definitely settled the question in this country.
    There was no law at the time of this purchase and sale under which this or any such property could have been confiscated, or by which transfers or sales were prohibited.
    The only statutes in forcé at that time were that prohibiting commercial intercourse, which we have seen does not apply, and the statute of August 6, 1861, which provided for proceedings in rem, aud confiscation of property being used by and with the consent of the owner in aid and furtherance of the rebellion.
    The Solicitor for the defendants :
    In the preparation of their case, counsel for the claimants have manifested great solicitude to relieve the conveyance from A. F. Tift, through his attorney, Charles Tift, from all taint of collusion between the grantor and grantees. The witnesses, Charles Tift and James Filor, swear that it was honajiie and without collusion. But the court will look at the facts, and determine for itself whether it was a sale that could have been sustained against the creditors of A. F. Tift, or Tift himself, if he had disputed the legality of the conveyance. Charles Tift was not authorized under his power of attorney to make a sale of this description. He was not authorized to waive the payment of money, and take notes that were not payable until the rebellion was suppressed. That period might have continued for forty years, and possibly forever. He had no right, to exercise over the notes the control of an owner. They became immediately the property of A. F. Tift, or there was no valid sale. But Charles Tift swears that' there was an agreement between himself and the claimants that neither the notes nor their proceeds should be paid to, or used for the benefit of, A. F. Tift, in any way during the existence of the rebellion.
    On the 10th of May, 1861, the President of the United States issued the following proclamation:
    “ Whereas an insurrection exists in the State of Florida, by which the lives, liberty, and property of loyal citizens of the United States are endangered;
    
    “And whereas it is deemed proper that all needful measures should be taken for the protection of such citizens, and all officers of the United States in the discharge of their public duties in the State aforesaid:
    “Now, therefore, be it known that I, Abraham Lincoln, President of the United States, do hereby direct the commander of the forces of the United States on the Florida coast to permit no person to exercise any office or authority upon the islands of Key West, the Tortu-gas, and Santa Cora, which may be inconsistent with the laws and Constitution of the United States, authorizing him at the same time, if he shall find it necessary, to suspend there the writ of habeas corpus, and to remove from the vicinity of the United States fortresses all dangerous or suspected persons'.”
    Eleven days after the issuing of this proclamation, on the 21st day of May, A. F. Tift executed his power of attorney to Charles Tift, and went within the confederate lines, where he remained during the war.
    There can be no doubt that the intention was to place both the real estate and its proceeds beyond the reach ot any law of confiscation which might be enacted, or any military seizure which might be made.
    But should it be admitted that these facts did not render the conveyance void as against the United States, it was void for another reason.. It was a contract with a rebel enemy.
    
    On the 13th of July, 1861, Congress passed an act to empower the President to declare the inhabitants of any State or States to be in a state of insurrection against the United States; and upon such declaration 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.
    On the 16th of August, 1861, the President issued his proclamation, declaring “ the inhabitants of the States of Georgia, South Carolina, Virginia, North Carolina, Tennessee, Alabama, Louisiana, Texas, Arkansas, Mississippi, and Florida, in a state of insurrection against the United States ; and that all commercial intercourse between the same and the inhabitants thereof, with the exceptions aforesaid, 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.”
    The authorities have placed a construction upon the extent of the meaning of the term commercial intercourse. It extends to all contracts, all pacific dealings.
    
    
      But it will be said that A. F. Tift did not make the conveyance ; that it was made by his attorney, Charles Tift, in the city of Key West, a district within which commercial intercourse was not prohibited. The answer is that A. F. Tift was within the rebel lines, an active enemy, and qui facit per almm,facit per se.
    
   Loring, J.,

delivered the opinion of the court:

The petitioners claim of the United States ($30,000) thirty thousand dollars as rent from the first day of January, 1862, to the first day of January, 1867, upon an agreement in writing made the 24th day of January, 1862, between the United States, by Lieutenant H. Gibbs, acting assistant quartermaster, of the one part, and the petitioners of the other part, under which the United States occupied certain premises known as Tift’s wharf, in Key West, in the State of Florida, from the said 1st day of January, 1862, to the day of filing the petition.

And on the evidence the court find the facts to be—

1. That Asa F. Tift was .a citizen of Key West, in the State of Florida, and resided there from 1838 to 1861, and owned and was seized in fee of the premises known as Tift’s wharf in Key West.

2. That he was a member of the convention which passed the ordinance of secession of the State of Florida from the Union, and signed that ordinance on or about the 9th of January, 1861.

3. That on the 21st day of May, 1861, he made his letter of attorney to Charles Tift, of Key West, and thereby authorized him to sell and convey all or any part of his real and personal property “ on the island of Key West,” with the intent of leaving Key West in adherence and allegiance to the State of Florida, in her secession from the United States.

4. -That in said month of May, and after executing and delivering said letter of attorney, the said Asa Tift, in fulfilment of his purpose of joining the confederates against the United -States, left Key West, then and thereafter in the possession of the United States, and went to reside in Albany, in the State of Georgia, and resided there within the confederacy during the whole war of the rebellion; and the said facts were known to the petitioners before December 25, 1861.

5. That on the 28th day of December, 1861, the said Asa F. Tift, by his attorney, the said Charles Tift, conveyed the premises to the petitioners as tenants in common in fee simple by deed of that date, duly executed, delivered, and recorded, in consideration of the sum of $18,000 paid and received.

6. The said sum of $18,000 was paid in the negotiable notes of the respective grantees in the proportion of one-third each — $1,000 payable by'each on demand, and the residue payable in one, two, three, four, and five years, with interest at six per cent., and the said notes were retained by said Charles Tift, during the rebellion, by an agreement between him and the promisors, and were not delivered to said Asa F. Tift till after his pardon. He now holds the same uncollected in any part.

In December, 1861, the officers of the quartermasters’ department at Key West desired possession of Tift’s wharf and its appurtenances for the use of the United States, and it was needed therefor; but the petitioners were disinclined to lease it, and refused to do so, and then, and for the purpose of effecting a lease of it, Major B. H. Hill, commanding at Key West, caused to be issued an order for its seizure in the following terms :

“Order No. 3.] HeaduuaRters Troops, Key West,Fla.,
“January 13, 1862.
“ The property known as Tift’s wharf, including thosehouses, cisterns, offices, and wharf property of every kind, will be taken possession of for the use of the quartermasters’ department of the United States army, an accurate inventory of which will be made, with a view to compensation thereafter.
“By order of Major Hill:
• “Paul Roemer,
“ Lieutenant Fifth Artillery, Post Adjutant.”

And under the pressure of this order an arrangement was made to lease it on the terms mentioned in the contract, which were approved by Major Hill, who cancelled the order for the seizure of the wharf, and the lease was then executed with his sanction and approval.

7. By the said lease or agreement, dated 24th of January, 1862, the petitioners leased the premises to the United States for one year from the 1st day of January, 1862, and as much longer as might be required, for the quartermasters’ department, at an annual rent of $6,000, to be paid quarterly; and under the said agreement the officers of the quartermasters’ department entered upon and took possession of the premises, and used them in the service of the United States .from the 1st day of January, 1862, to the 1st day of January, 1867, with a full knowledge of the facts above stated, viz., that the petitioners derived their title from A. F. Tift, who had adhered in allegiance to the State of Florida in its secession from the Union, and had left Key West and joined the confederates, and was with them in open war with the United States when the deed from him to the petitioners was made and delivered.

8. That no rent has been paid under said agreement or lease, or for the use and occupation of the premises, and the lease was not approved by the Quartermaster General, and was not disapproved till 8th February, 1866.

9. On the 12th day of February, 1866, Brevet Brigadier General Seymour having succeeded to the command at Key "West, issued the following order:

“ Special Order No. 13.] Headquarters Key West, Florida.

“ The accountability for the wharf and storehouse property known as 1 Tift’s’ will be transferred from the papers of the acting assistant quartermaster at this post, to the monthly return of confiscated property, rendered by the commanding officer to department headquarters.

“ By order of Brevet Brigadier General Seymour :
“Paul Koemer,
“Lieut. Fifth U. S. Artillery, Post Adjutant.”

And in the return made by T. Seymour, captain fifth artillery, February 28, 1868, of “ confiscated property occupied by United States military authorities at Key West, Florida,” the premises were specified.

10. The said A. F. Tift received from President Johnson “a full pardon and amnesty for all offences by him (the said Tift) committed, arising from participation, director implied,in the said rebellion,” and said pardon was dated 20th July, A. D.1865.

It is contended, on the part of the United States, that the petitioners cannot maintain this action, because when the deed was made to them by A. F. Tift, he was a confederate, and an enemy to the United States, so that his deecl was void under the rule of law which prohibits contracts between enemies.

This is the rule of law as between subjects of belligerent sovereigns, but the defendant here is not a subject, but a sovereign, and there is no rule of law that prevents a sovereign from contracting with his enemy or his enemy’s grantee. On the other hand, it is common for sovereigns to contract or trade with their enemies, and to license others to do so, and the United States in that way obtained cotton of the confederates during the rebellion. And the books and our own statutes show that licenses to trade with the enemy make a branch of. the law, and they all rest on the right of a sovereign to contract with his enemy.

We think the question here is.:' Are ihe United States parties to this lease? for if they are, it is subject to the rules of law pertaining to leases ; and of these, a cardinal rule is that the lessee cannot, and the court cannot, put in issue the title .of the lessor, for his claim does not depend on his title, hut on the contract of lease.

Whether the United States are parties to the lease or not, depends on the authority of the officers at Key West, who made it, and their action within their authority, and this brings into consideration all the circumstances in which they acted, for the rules of evidence peculiar to leases operate only between the parties to them, and c'an have no application to the question whether the defendants are such party. They must be shown to be parties to the lease before the rules of evidence peculiar to leases can be applied to the case.

On the statement of facts read, it appears that when the deed of Asa F. Tift to the petitioners was made, he was a confederate, and an enemy to the United States, in open war with them, and in the laws of war the rule is absolute that all contracts and peaceful dealings with an enemy are unlawful and void. Every sovereign may enforce or relax the rigor of this rule, and modern practice has excepted from it cases that are not within its reason. Thus, where an enemy has a protection or license to remain in the territory of the sovereign, he may then make contracts for his subsistence, and deal with loyal citizens in his affairs, (3 Wash., C. C., 484; 10 Johns., 69.) So if the enemy is brought as a prisoner into the sovereign’s territory, and held there by his authority, his position is analogous to that of an enemy under a license or protection, and the same privileges are allowed him, (Clarke v. Morey, 10 Johns., 69,) and this is the case cited in the brief of the counsel for the petitioners.

So in the matter of mere title vesting in the enemy, he is allowed to acquire property under the sovereign’s laws. Thus a bequest made or a distributive share accruing to an alien enemy vests in him, and he may recover it when the war has ceased and peace has restored his status in the sovereign’s court, (Park Rep., 267, cited 7 Cranch, 620; Morey v. Clarke, 10 Johns., 69.) So dividends accruing to an alien enemy vest in him, and he may, after the war, recover them, with the interest accruing from their use during the war, (Morey v. Clarke, supra.) So an alien enemy may take title to real estate by devise, for in the case of Fairfax’s devisee v. Hunter’s lessee, 7 Cranch, 603, the court, after advisement, held that a devise made to an alien enemy, vested in him the title of the lands devised, subject, as in the case of an alien enemy, to the sovereign’s power to confiscate them.

But in all these instances the enemy is merely passive, for the bequest, the distributive share, the dividends, and the devise which dispenses with seizin require no action on his part, and involve and imply no pacific dealings between enemies ; but in the case of a deed it is not. so — that is a bargain on terms to be fixed and agreed to, as was the case here; a consideration and price is to be fixed, and a mutual understanding or assent, which is action on both sides, is to be reached, and in this the grantor and grantee are equally actors. It is, therefore, a traffic, and it offends against one of the strongest reasons of the rule which prohibits trading between enemies, because it strengthens the enemy. If such deeds as that of Asa Tift were valid in law, then in the late rebellion every rebel preparing for that or engaged in it, could have sold his lands in the loyal States, and thus have withdrawn them from the reach of our laws, and secured the proceeds for the aid of the confederacy.

In -the case in Granch, the alien enemy devisee was the party to the action, so that the only point decided was that he took title under the devise, and- the question whether he could convey by deed 'flagrante hello did not arise; and we do not carry its decision beyond the question before the court, though the language of Judge Story might reach further. In arguing the point, he enumerates the rights and disabilities of an alien enemy, and says: “Until the lands are seized, the alien has complete dominion over them, and may convey the same to a purchaser;” and then in the subsequent paragraph says: “We do not find that, in respect to these general rights and disabilities, there is any admitted difference between alien friends and enemies.” Ftoin this it might be argued that an alien enemy, as well as an alien friend;, might convey lands by deed, but the authorities cited by the learned justice do not reach to this, nor did the case present the question, and we think it is not decided by it nor comprehended in it as an exception, to the rule that contracts between enemies are void.

No case has been adduced in which a deed from an enemy in a hostile' country made flagrante hello, has been sustained, and in the theory of the common law it is a legal impossibility, for the king’s enemy cannot enter the king’s territory to give the seizin a freehold estate requires for 'its transfer, and in that theory all lands are held of the king upon some service to him, and to say of such lands that they may/ be held and granted by the king’s enemy involves a contradiction in terms, for it is to say that the king’s enemy is his feudatory.. Butapart from the common law, we think, on general principles, that the enemy of the sovereign cannot of right hold, grant, and exereise dominion/ over lands within the sovereign’s domain, subject to and transferable only by his laws.

And without reference to such considerations, we think and hold that the deed of Asa F. Tift to the petitioners was a contract between enemies prohibited by the laws of war, and that it was therefore utterly void and of no legal effect.

It was argued for the petitioners that if the’ United States might have seized and confiscated this real estate of Asa Tift, they had not done so. This is true, and it is. a fair inference that the United States did not wish to seize and confiscate this real estate, and thus divést the title of Mr. Asa Tift, and secure the property to themselves — such procedure is opposed by the modern mitigation of the laws of war ; but it does not follow that the United States were willing Mr. A. Tift should convert this real estate into money, easily concealed and withdrawn from the reach of the municipal law, and transferable to the territory and aid of the rebels; and the just conclusion is that the United States were willing Mr. A. Tift should keep his land; to be enjoyed and controlled by him when, as a loyal subject, he could return to it, and not before; and this would be the consequence of their forbearance to seize it, and the rule of law that prevents the contracts of enemies, and, therefore, the conveyance claimed here.

So it was contended for the petitioner that no part of the transaction took place within the rebel lines, and this is true, because it was conducted by Charles Tift, as the attorney of A. F. Tift, in Key West, which was in’the possession of the United States; but it was none the less a contract between enemies, and so an offence against the law of nations, and its locality was immaterial whether it was in the rebel lines or ours, or both, and the act of the attorney was the act of the principal; and the letter of attorney was avoided by the same circumstances that avoided the deed of conveyance viz: that AsaTift bad signed and made himself party to the act of secession of the State of Florida, and left the lines held by the United States, and gone into those of the enemy in adherence to them. In speaking of a contract made by an agent between alien enemies, Justice Story thus states the law. (1 Gall., 563 ; “ The Emulous:”) “ It is of no importance what the character of the agent is. The transaction must have the same legal construction as though made by the aliens themselves. Now, admitting that this sale was not colorable, but bona fide, which, however, I am not at present disposed to believe, still it was a contract made with enemies pending a known war, and therefore invalid. No principle of national or municipal law is better settled than that all contracts with an enemy, made during war, are utterly void. This principle lias grown hoary under the reverend respect of centuries.”

If the deed of A. F. Tift to the petitioners was void, the remaining question is: Did this affect the authority of the officers at Key West to make the lease? It is found in the statement of facts that they knew of the circumstances avoiding the deed to the petitioners,'and making their title invalid, and leaving the title to the property in A. F.-Tift, who was still a confederate and an enemy, whose lands were subject, by the laws of war, (if the United States chose to enforce their rigor,) to seizure and confiscation as to their rents and profits, (Wheaton, Lawrence ed., 528, citing Vattel,) and subject, also, while Mr. Tift’s treason continued, to such legislation as the United States might see fit to adopt as to rebels and their property; and we think the officers at Key West were not authorized to alter the status of the property in these respects, and subject the United States, as tenants to a title which was made invalid by circumstances known both to the officers and petitioners, when the lease was made,- and was acquired to the petitioners by the violation of law. .

And we decide as points of law—

1. That the deed from A. F. Tift to the petitioners was void, as a contract between enemies.

2. That the officers of the quartermasters’ department at Key West were not authorized to hire for the United States premises, the title to which was invalid by circumstances known to the officers at the time the lease was made, and that the United States are not parties to the lease, nor liable thereupon.

Nott, J"., concurred in the opinion read by Loring, J., but thought the case should be dismissed for want of jurisdiction, under the provisions of the act to restrict the jurisdiction of the Court of Claims, 4th July, 1864, (13 Stat. L., p. 381.)

PecK, J.,

dissenting:

I differ from my brother judges; and will very briefly state my reasons for doing so.

The United States did not assert a right to appropriate or confiscate the property leased, but deliberately waived all authority in that direction, and preferred to accept a lease of the premises.

The title of the lessors to the premises, or their right to lease them— a right which might exist without a title in fee — or the power of the government to confiscate them, which was not invoked, should not now be inquired into collaterally, because the interests to be affected by the inquiry cannot be protected as they might upon a direct proceeding for a confiscation, had one been instituted. To such a proceeding the lease might not present a barrier.

The United States took and held possession under the lease, and have had quiet occupation of the premises since, as the lessors had before and at the time of its execution, and should not now be permitted 'to dispute the title of the lessors, especially, by insisting upon a right which was voluntarily waived, and which might not be affirmed if judicially tested .upon a direct issue for that purpose. I know of no way mnder our laws by which a title can be divested by mere inaction except by lapse of time.

If this action to recover rent were to be tried as an action between individuals, which is the proper rule of proceeding, this court might not decide in a collateral way upon the title to the premises leased. The proprietary rights of' the lessors cannot be fairly adjudicated here. This court is not authorized to declare a confiscation of real property directly or indirectly.

The lease assured quiet occupation of the premises, and that has been enjoyed by the United States, and the objections raised by them to payment come too late.

The effect of the pardon granted to A. F. Tift opens a wide field for discussion which I shall avoid, as I consider the right of some of the claimants to recover well grounded without regard to the pardon.

Filor and Curry should recover, under the lease, for their proportionate interests.

Pinkney not having borne true allegiance “ at all times” to the United States, I do not think this court authorized to pronounce a judgment in his favor.  