
    WALLACH ET AL. vs. VAN RISWICK.
    In Equity.
    No. 2990.
    A person who engaged in the rebellion and whose real estate has been sold under the acts of Congress of August 6,1861, and July 17,1862, in pursuance of a judicial decree of confiscation, forfeits thereby its use during life; but such decree and sale does not work a divestiture of title, and he has afterward the right to execute a mortgage or conveyance of the same property; which, however, will only take effect on the termination of the life of the original owner.
    STATEMENT OR THE CASE.
    On the 28th of September, 1854, Charles S. Wallach and his wife, Susan L. Wallach, executed a deed to certain lots and parcels of land in the city of Washington to James M. Carlisle, trustee, to secure the payment of five thousand dollars, which said Wallach borrowed of Henry W. Lansdale. On the 12th day of July, 1862, the trustee sold parts of the land mentioned in the deed, and received therefor the sum of four thousand five hundred dollars, and entered the same as a credit on the note and said deed.
    On the 1st day of December, 1862-, John Yan Biswick, the defendant, purchased the said note, and received an assignment of said deed for the balance due and unpaid on said note, amounting to one thousand five hundred and thirty-three dollars and sixty-five cents, besides ninety-four dollars and eighty-five cents costs.
    The said Charles S. Wallach had resided in the city of Washington, District of Columbia, for many years, and had, previous to the 17th day of July, 1862, entered into the military service of the Confederate States, and was an officer in the army thereof doing duty in the State of Yirginia, and remained in said army till the termination of the armed rebellion.
    On the 12th day of May, 1863, a libel of information against the parcels of land in controversy in this suit was exhibited on behalf of the United States in this court, and on the 29th day of July, 1863, the same was condemned by the decree of the court as forfeited to the United States for and during the natural life of said Charles S. Wallach, and the same was sold by the United States marshal of this District on the 9th day of September, 1863, and the defendant became the purchaser for the sum of $2,200, and received % deed therefor from said marshal.
    On the 3d day of February, 1866, the said Charles S. Wal. lach and his wife, Susan L. Wallach, executed a paper writing, purporting to be a deed to the said parcel of land so condemned and sold by said decree, conveying the same to the defendant, John Yan Eiswick, the consideration expressed being $11,000.
    Charles S. Wallach died February 3, 1872. Complainants are the children and heirs of the deceased Charles. They bring their bill of complaint against John Yan Eiswick, who is in possession of the lot of land condemned and sold by saiil decree of this court, and seek now a decree declaring the deed of February 3,1856, to defendant, to be null and void, and directing an account of the rents' and profits since the death of their father, and they offer to pay any balance found due on the note to Lansdale, and pray for general relief.
    A demurrer was interposed by the defendant to the bill of complaint, and sustained by the justice holding the special term, and the bill was dismissed, with costs. From this decree an appeal was taken to the general term.
    The principal question presented by the record is whether the sale of the property made in pursuance of the decree of confiscation divested absolutely and completely the title out of the original owner, so that no right remained in him, either to mortgage or convey the same.
    Messrs. Pike and Johnson for complainants :
    The plaintiffs’ case rests upon the proposition that by the decree of condemnation and sale, Mr. Chas. S. Wallach was deprived of all beneficial interest in the property, and that a settlement was effected in favor of his right heirs, the effect of the limitation prescribed by the concurrent joint resolution to the forfeitures directed by tbe 5th, 6th, aud 7th sections of the act of July 17,1862, being the same as that prescribed by the clause in section 3, Article III, of the Constitution, to forfeitures on attainders for treason, and that limitation prescribed by section 3, Article III, of the Constitution being the same as that prescribed by the statute of 7 Anne, C. 22, to forfeitures on attainders for treason in England. Miller vs. United States, 11 Wall., 268 to 213; Bigelow vs. Forrest, 9 Wall., 339 to 353; McVeigh vs. United States, 11 Wall., 259 to 267; Armstrong’s Foundry, 6 Wall., p. 769; United States vs. Klein, 13 Wall., pp. 138, 142; Blackstone’s Com., book 1, pp. 29, 47, 229; Blackstone’s Com., book 2, pp. 8, 12, 44, 57, 108, 110, 111, 112, 116, 251, 252, 309, 311, 312 ; Blackstone’s Com., book 4, pp. 382, 383; Kent Com., vol. 4, pp. 12, 258, 426, 442; Preston on Est., vol. 1, *p. 255; Preston on Est., vol. 2, *pp. 298, 303, 307, 313, 343, 357, 380, 453, 455; Washburn R. P., vol. 1, pp. 14, 16, 22, 27, 28, 66, 67, 69; Dwarris on Stats., *p. 702; Fearne on C. R., pp. 310, 452 to 458; Cornish on Rem.; Williams R. P., p. 18; Butler’s Fearne, 563; Spence Eq. Jus., vol. —, pp. 21, 140; Hallam Hist. Mid. Ages, vol. 2, pp. 83, 84, 98, 99, 117; Hallam Hist. Mid. Ages, vol. 3, p. 264; Hallam Hist. Mid. Ages, supplemental notes, 140, 143; Torke Considerations on Forfeitures, pp. 8, 14, 19, 53, 54, 56, 61, 88, 90, 154, 196 to 230; Story, on the Constitution, sections 1799, 1299; Appleton vs. Crowninshield, 3 Mass., 464; Dana’s note to Wheaton’s Int’l Law, sec. 388; Hargrave’s note, 1 Coke on Litt.; Burgess vs. Wheate, 1 Eden., ch. 191; Wellion vs. Berkley, Plowd., 233, 235, 249 ; 3 B. & P., 652; Sheffield vs. Radeliffe, Hobart, 340, 212; Foster’s Crown Law, 98, 222; Gordon’s case, Foster’s Crown Law, p. 100; Taylor vs. Atkys, 1 Burrows, p. 115; Brown vs. Waite, 2 Mod., 130; Burnet’s Hist., vol, 2, pp. 836, 837; Life of Chancellor Hardwicke, (Harris,) vol. 2, pp. 68, 69; Sir Salathiel Lovel’s case, 1 Salkeld, 85; Wheatley vs. Thomas, 1 Levinz, *p. 73; Walsingham’s case, Plowd., 563, 554, 556; Colchrist vs. Bejustin, Plowd., 25, 27, 28, 29.
    The confiscation was final and conclusive as to Mr. Charles S. Wallach, no right of present or future enjoyment being left to him. Micon et al. vs. J. P. Benjamin et als., sup. ct. Louisiana, 1871; Tyler vs. Defrees, 11 Wall., 345; Benedict Admty., sections 359, 360, 364, 365, 434; Miller vs. United States, 11 Wall., 306; Attorney-General vs. Norstedt, 3 Price, 97; Coote Admty. Pr., p. 129; Parsons on Martime Law, p. 643; The Parlmyra, 12 Wheat., 1, 14; Bigelow vs. Forrest, 9 Wall., 350; Washburn R. P., vol. 1, p. 59; Preston on Est., p. 18, vol. 2; Amy Warwick, 2 Sprague, 145, 150; Prize cases, 2 Black., 671; Hayden’s case, 3 Rep., 7; Pierce vs. Hopper, Strange, 253.
    
      Thomas J. Durant and T. A. Lambert, for defendants, argued that—
    The deed of February 3,1866, was valid, having been made by and between parties able to contract about a proper subject-matter and for a valuable consideration, to wit, $11,000; and the fee-simple estate in the property therein described was by it conveyed to the defendant, the grantee.
    The act of Congress of July 17, 1862, gave to the proceedings of condemnation provided for in its 7th section an effect or operation purely in rem ; the individual owner was in no sense the object of such proceeding. The latter occupying the relation of a public enemy and having withdrawn himself from his allegiance to the Government, left the former in some sort derelict, under which circumstance it was seized upon by the United States and the usufructuary right thereto, during a period commensurate with the life of the then owner, appropriated for the support of its Army.
    This wrought a temporary incapacity of present enjoyment in the owner of the fee, but no divestiture of the fee itself.
    
    The act (except in its first four sections, with which we have naught to do) was simply a measure of belligerent policy, and in no respect a municipal regulation. (Vide Miller vs. The United States, 11 Wall., 305, 306.)
    All that the United States could take under and by virtue of proceedings under the act of July 17,1862, was a “right to the property seized, terminating with the life of the person, for whose act it had been seized.” Bigelow vs. Forrest, 9 Wallace, 350.
    That it was necessary preliminarily to the exercise by Government of its war-powers to make such enactment as that of July 17,1862. (See Brown vs. The United States, 8 Cranch., 122.)
    If the United States took the estate of Charles S. Wallach by way of use, it must have held by analogy with a holding under a conveyance operating by virtue of the statute of uses. In that event the fee must have remained in the grantor, (IV Kent, Com., 257,) who could have been none other than Charles S. Wallach. That being so, he must have had absolute disposition of the fee.
   Mr. Justice Wylie

announced—

That a majority of the court were in favor of affirming the decree appealed from, but that a written opinion had not been prepared. He would, therefore, simply announce the decision without reviewing the authorities or the elaborate and interesting-argument of counsel upon either side of the case. The court were of opinion that the deed executed by Mr. Wallach and wife on the 3d day of February, 1866, was a valid deed, and that the grantee took a good title, as against the complainants to the present bill. The decree sustaining the demurrer and dismissing the bill is, therefore, affirmed.

Mr. Justice Humphreys,

with whom Mr. Justice MacArthur concurred, read the following dissenting opinion:

When the land was libeled in this case, the deceased had and owned an estate in fee, incumbered by a mortgage for a small balance of a note. This estate was seized, and at the sale was sold. Had the decree been absolute, still the sale would have passed no more of a forfeiture than was passed in the case of Forrest and Bigelow, 9 Wallace. It is to be observed that the land in the case before us was an estate of the third class, as designated by the court in United States vs. Klein, 13 Wallace. It was confiscated by regular process, nothing remaining to be done to divest all right of the owner. The right and property in the land was changed by regular judicial proceeding and sentence, and by the execution of the sentence, and nothing was left that could be the subject of even a pardon.

The whole or all the estate which the deceased had in and to the land was seized, and was sold as being forfeited to the Government, because the owner thereof was guilty of treason in levying war against the United States and aiding in the rebellion. The resolution saved and limited the extent of the forfeiture to be in harmony with the limitation of the second clause of section 3, article 3, of the Constitution.

When power was given in section 8, article 1, to the Congress to provide for calling forth the militia to execute the laws of the Union and suppress insurrections, subsequent provisions were made to harmonize section 4, article 4, and the other two sections cited; all work together and provide for the different contingencies to arise. And as any trial of the person for treason under article 3 would be controlled by the limitation of article 3, how was this act justified? By reason of the rebellion of the owner; by which act of treason he forfeited his property, his estate, and his life. The Government saw fit not to take life after the conflict of arms had ended. There was, it is true, no attainder of treason, but the same limitation to the forfeiture was annexed as though there had been.

If any estate was left in the deceased, the ancestor, which he could dispose of, he could dispose of it by will as much as by deed. And let us see what would have been the practical effect of this power on his part. His land was confiscated because he had joined himself to the Confederate States.

Suppose that one or more of his sons had joined the armies of the Union, and for so doing he had excluded him or them from participating in his estate. This would be giving a contradictory practical effect to an act of Congress designed to deprive the party of the power of doing injury. So a threat of disinheriting, if the son took up arms for the Union, might have deprived the Government of services which it needed. The forfeiture was complete when the sale was made, so far as any power of the offender over the estate was concerned. The fact that the estate may descend to heirs who were as hostile as their ancestors is owing to the action of the Government itself, under the Constitution, and not to that of the ancestor.

The intent and meaning of the act of July 17, 1862, may be somewhat derived from recent legislation by Congress. The act of March 3, 1871, for the appointment of a board of commissioners, provides that they “shall receive, examine, and consider the justice and validity of such claims as shall be brought before them, of those citizens who remained loyal adherents to the cause and the Government of the'United States during the war, for stores or supplies taken or furnished during the rebellion for the use of the Army of the United States in States proclaimed as in insurrection against the United States, including the use or loss of vessels or boats while employed in the military service of the United States.” The claims to be allowed are strictly confined to those who prove their adherence, during the war, to the cause and the Government of the United States. The property of those obnoxious to the provisions of the act of 1862, used by the Army, is, by this act of 1871, considered as having been forfeited to the Government — and if the provisions of the act should ever be extended to embrace the whole population it may be in favor of children or heirs. But, certainly, so far as the offenders are concerned, they have no claim which would pass by assignment, or which the offender could alienate by deed or will. Now, we apprehend that it is equally as plain that the legislative power intended to make the same disposition of the property confiscated by the decree of the courts — and the act of 1871 is referred to because of recent date, and for that it relates to the subject of the use of property in the States which were in rebellion, which property was seized and appropriated .to the use of the Army of the United States. It may be instructive, in considering the extent of the act of confiscation, to refer to the case of the United States and Klein, both the opinion of the court and the dissenting reasons of Justices Miller and Bradley, although, in that case, construction was being given to the act of March 12, 1863. Incidentally, the complete divestiture of estate and ownership in property confiscated is discussed with clearness and system.

The fifth section of the act of 1862 provides for the seizure of all the estate and property, and the seventh section provides for the condemnation and sale of such property. When the property or estate of either class of offenders has been seized and proof shall have been made, upon which a decree of condemnation and sale follows, then all sales, transfers, or conveyances of any such property shall be null and void, which shall have been made within sixty days after proclamation. This was the declaration of a forfeiture of estate and property. The joint resolution, which properly is a proviso to the act, limits and restrains the forfeiture of the real estate, so that it shall not extend beyond the natural life of the offender. It is not necessary to discuss the question whether this would not have been the determination of the courts even without the proviso. Mr. Lincoln thought so, and he was a clear-minded, strong, intellectual man, with a legal training and healthy cultivation of thought which enabled him to act with almost judicial calmness amid the turbulence by which his administration was surrounded. He was constitutionally called upon to act either to sign or refuse to sign the bill, before it could become an act. This consideration is strongly persuasive to show that the whole confiscation act is to be construed in the light of the principles governing the subject in the country from which we derive our ideas of jurisprudence.

The details of confiscation and forfeiture had long ago been considered in the English courts.

Blackstone, Com., 4, 381, says: “Forfeiture is twofold; of real and personal estate. First, as to real estate: by attainder in high treason a man forfeits to the King all his lands and tenements of inheritance, whether fee-simple or fee-tail, and all his rights of entry on lands or tenements, which he had at the time of the offense committed, or at any time after, ward, to b & forever vested in the Crown; and also the profits of all lands and tenements, which he had in his own right for life or years, so long as such interest shall subsist. This forfeiture relates backward to the time of the treason committed; so as to avoid all intermediate sales and incumbrances, but not those before the fact.” It is evident that the Congress, in the enactment of the law of 1862 and the joint resolution, intended to avoid any conflict with the Constitu. tion, and that it was the intent to follow out the great rules of forfeiture as understood in England, modified, limited, and controlled by our constitutional provisions.

It is to be observed, however, that the act of 1862, operating upon the real property of the rebel, is, to some extent, in advance of the laws of England, and must be given force to by the general power which Congress has to prescribe the punishment of treason, or to suppress insurrection. Blackstone, Com., 4,387, says : “There is a remarkable difference or two between the forfeiture of lands and of goods and of chattels : 1, lands are forfeited upon attainder, and not before; goods and chattels are forfeited by conviction. Because in many of the cases where goods are forfeited there never is any attainder, which happens only where judgment of death or outlawry is given; therefore, in those cases the forfeiture must be upon conviction or not at all; and, being necessarily upon conviction in those, it is so ordered in all cases, for the law loves uniformity.”

But this apparent difference is explained when we consider that in England attainder works corruption of blood, and forfeiture extends to heirs. See dissenting opinion of Mr. Justice Miller in ex parte Garland, 4 Wallace, 387.

. So far as the civil powers of the Government are concerned, that must depend upon the Constitution, or some act of the Congress under the provisions of the Constitution. And the Congress has enacted the law of 1862, and the court has pronounced that act constitutional.

As we have before said, the courts saw proper to conclude that the act was an exercise of the war powers of the Government, excepting the first four sections.

Those war powers were derived from the Constitution, for among the enumerated powers is, “ the Congress shall have power to provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions.”

The act of 1862 declares that it is an act, among other objects, to suppress insurrection, to punish treason and rebellion. Each of which purposes the Congress had the express power to accomplish. One mode of doing this was to seize, condemn, and sell the lands of those engaged in rebellion.

The deceased, Charles S. Wallach, was engaged in the rebellion^ owned lands in the District of Columbia, which were seized, condemned, and sold, as provided for in said act; thereby the same became forfeited to the Government of the United States, and lie, the said Charles, had no more and no longer any control over, or power to dispose of the same, or to grant them, either in fee or for life, or in any other manner.

The land was condemned for the reason that its owner was in rebellion against the Government which protected him in the peaceable possession and enjoyment thereof until, by his treason, he forfeited the right thereto. And by reason of the limitation by the act of Congress, his heirs are entitled to the possession of the same, and the property thereto is in them, subject to the satisfaction of the balance, if any, of the note secured by the deed to Carlisle.

Such are the grounds of my dissent to the judgment announced in this case.  