
    Rufus Waples v. The United States.
    
      On the Proofs.
    
    
      Ihe United States district attorney, in the State of Louisiana, buys, at a marshal’s sale, real estate in New Orleans, libeled and condemned under the Confiscation Aoi as the property of C. M. Conrad. Theman-shal’s deed purports to convey the fee, and as between individuals would import a warranty of title in the grantor, by the law of Louisiana. Conrad’s son brings an action in the nature of ejectment against the claimant, setting up that the property had been conveyed to him prior to the confiscation proceedings. Pending the suit, the elder Conrad dies. Subsequently judgment, vjith nominal damages, is rendered against the claimant. The government was not a party to that suit.
    
    I. In proceedings under tlie Confiscation Act (12 Stat. L., 589, ch. 195), tlie estate sold being simply tbe estate of tbe person proceeded against, tbe marshal cannot sell more. Should bis deed assume to convey an estate in fee simple, tbe purchaser, evicted after tbe death of tbe person whose estate was confiscated, cannot bold tbe government liable on tbe marshal’s deed for tbe purchase money.
    
      II. If any covenant of warranty of title he implied by local law in a deed conveying confiscated property, the warranty will, at most, be simply of an estate for life in the persons whose estate is confiscated.
    III. It is no breach of such a covenant that a son of the former owner (whose estate was confiscated) brings an'action of ejectment setting up title in himself acquired before confiscation, so long as the purchaser be not evicted during the continuance of the life estate.
    XV. The government is not bound by a judgment of ejectment against its grantee in an action where it was not a party and where it was not notified to defend.
    V. If the government be liable upon an implied covenant of warranty in the case of a sale of confiscated property, where the grantee has enjoyed possession through the entire period of the life estate conveyed, it will be for actual damages suffered; the grantee on those facts cannot recover bach the purchase money.
    VI. If the purchaser of a life estate seeks to recover back the purchase money upon the ground that the estate did not exist at the time of sale, he must establish that fact. It is insufficient for him to show that he was evicted by a stranger.
    The Reporters' statement of the case:
    The following áre the facts of this case as found by the court:
    I. On the 7th of August, 1862, Eufus Waples, the claimant, then United States attorney for the eastern district of Louisiana, filed in the district court of said district an information of which the following is a copy, omitting the description of lands to which this case has no reference:
    “ INFORMATION.
    
      u Filed Aug. 7, 1862.
    “In the Suit of the United States ~¡ vs‘ I Wn 7653 Ten Lots of Ground, property of f Charles M. Conrad. j
    “To the honorable Edward EL Durell, judge of the district court of the United States for the eastern district of Louisiana:
    “The libel of information of Eufus Waples, attorney of the United States of America for the eastern district of Louisiana, who prosecutes for the said United States in this behalf, and being here present in court in his own proper person, in the name and behalf of the said United States of America, against tbe estate, property, money, stocks, credits, and effects hereinafter described, and against all persons intervening for their interest therein, in a case of seizure and forfeiture, alleges, propounds, and declares as follows:
    “1. That James Graham, esq., marshal of the United States for the said district, under written authority given him by the said attorney, in compliance with instructions issued by the Attorney-General of the United States to the district attorneys thereof, and by virtue of an act of Congress approved on the 17th day of July, in the year of our Lord 1862, entitled ‘An act to suppress insurrection, to punish treason and rebellion, to seize and confiscate the property of rebels, and for other purposes,’ heretofore, that is to say,’ on the twenty-ninth day of July, in the year of our Lord one thousand eight hundred and sixty-three, seized as forfeited to the said United States, at New Orleans, within said district and within the jurisdiction of this court—
    “Two lots of ground, situate in suburb St. Mary, between St. Joseph and Delord streets, designated by the Nos. 7 & 8 on a plan by G. F. Zimpel, 8th April, 1835, deposited in the office of W. G. Cristy. Said lots adjoin each other and measure, each: No. 7 measures 24 feet front on Gamp street by 316 febt 10 inches and 5 lines deep between parallel lines. Lot No. 8 has a like and equal front on Camp street by 127 feet 10 inches deep between parallel lines, English measure, together with the buildings and improvements thereon.
    “A certain lot of ground, with the four-story brick store thereon, situate in the first district of said city, in the square bounded by Camp, Gravier, St. Charles, and Poydras streets, designated by the No. 47 on a plan by T. Thompson, 7th May, 1842, deposited in the office of H. B. Cenas, which lot of ground measures 23 feet front on Camp street by a depth of 20 feet between parallel lines.
    * * * * « *
    “All and singular the lot of ground, together with the three-story brick dwelling-house, the three-story brick buildings and convenient stable erected thereon, situate on the western side of Oarondalet street, between Hevia and Poydras streets, in the suburb St. Mary, designated as lot No. 3 on a plan by O. F. Zimpel, surveyor, dated 10th December, 1833, deposited as plan No. 1 in the book of plans óf J. Massy, notary; said lot measures 23 feet 8.J inches front on Oarondalet street by 23 feet 9 inches and 2 lines, more or less, in the rear; by a depth of 147 feet 11 inches, more or less, on the boundary line of lot No. 2, and 149 feet 10J inches, more or less, on the boundary line of lot No. 4. The place between the stable and yard is reserved by the said act as an alley, to be appropriated forever to the common use of this and the five adjoining tenements designated on said plan.
    
      
      “2. That the person who owns the said property, Charles M. Conrad, of New Orleans, La., is, and was on the 17th day of July, 1862, and previously thereto had been, the owner thereof.
    “3. That certain States, forming a part of the territory and constituting a part of the United States of America, and specifically enumerated by the President of the United States in his proclamation duly issued, and bearing date of the first day of July, A. D. eighteen hundred and sixty-two, are now engaged, and were at the time said proclamation was issued engaged, and have since continued to be engaged, in armed rebellion against the lawful authority of the United States.
    “4. That the act of Congress of the United States, approved the seventeenth day of July, in the year of our Lord one thousand eight hundred and sixty-two, entitled An act to suppress insurrection, to punish treason and rebellion, to seize and confiscate the property of rebels, and for other purposes,’ provision was made for the seizure and confiscation of the property of-persons engaged in armed rebellion against the lawful authority of the United States and of other persons, as therein set forth.
    
      115. That the said Charles M. Conrad, the person whose property is herein seized, subsequent to said seventeenth day of July, in the year of our Lord one thousand eight hundred and sixty-two, did act as an officer of the army or navy of the rebels in arms against the Government of the United States, or as a member of Congress, or as judge of a court, or as a cabinet officer, or as a foreign minister, or as a commissioner, or as a consul of the so-called Confederate States of America; or that, while owning property in a loyal State or Territory of the United States, or of the District of Columbia, he did give aid and comfort to the rebellion against the United States, and did assist such rebellion.
    
      u 6. That the said Charles M. Conrad, the person who owns the said property, subsequent to said seventeenth day of July, in the year of our Lord one thousand eight hundred and sixty-two, did act as governor of a State, or as a member of a convention or legislature, or as a judge of a court of one of the so-called Confederate States of America, to wit, the State of Louisiana; or did hold an office in the so-called Confederate States of America after having held an office of trust or profit in the United States; or did hold an office or agency under the government of the so-called Confederate States of America, or under one of the States thereof, said office being national, State, or municipal in its name and character, which said office or agency he accepted after the date of the pretended ordinance of secession of the State of Louisiana; that he did take an oath of allegiance to, or to support the constitution of, the so-called Confederate States.
    “ 7. That the said Charles M. Conrad, the person who owns the said property, subsequently to said seventeenth day of July, in tbe year of onr Lord one thousand eight hundred and sixty-two, within a State or Territory of the United States, was engaged in armed rebellion against the Government of the United States, and did not, within sixty days after public warning and proclamation duly given and made by the President of the United States, on the twenty-fifth day of July, in the year of our Lord eighteen hundred and sixty-two, cease to aid, countenance, and abet such rebellion and return to his allegiance to the United States.
    “8. That the said Charles M. Conrad, person who owns the said property, subsequently to said seventeenth day of July, in the year of our Lord one thousand eight hundred and sixty-two, within a State or Territory of the United States, was engaged in aiding and abetting an armed rebellion against the Government of the United States, and did not, within sixty days after public warning and proclamation duly given and made on the twenty-fifth day of July, in the year of our Lord eighteen hundred and sixty-two, by the President of the United States, cease to aid, countenance, and abet such rebellion and return to his allegiance to the United States.
    “ 9. That by reason of the premises the property herein described, and all the right, title, interest, and estate of the said person or persons whose property is described herein, became and was forfeited to the United States, and ought to be condemned to their use.
    “Wherefore, the said attorney, in the name and behalf of the United States of America, prays that process of monition may issue against the said property and the owner and owners thereof, and against all persons interested or claiming an interest therein,, warning them at some early day, to be therein named, to appear- and answer this libel of information; and that order of publication may be made in the usual form; and that the court may grant such further and other relief as to law and justice may appertain and that this court is competent to give in the premises; and that after due proceedings had the said property may be condemned and forfeited to the United States of America; and he prays for general relief.
    “Rueus Waples,
    “ U. S. District Attorney for the Eastern
    
    “ District of LouisianaP
    
    II. Upon said information the following proceedings were had in said court:
    “OKDEK OE PUBLICATION.
    
      “Issued Atiy. 8th, 1863.
    “Whereas [here follows description of property] and all the right, title, and interest of the said Charles M. Oonrad therein, bas been seized by tbe marshal of tbe United States for the-eastern district of Louisiana, by virtue of an act of Congress approved on tbe 17 day of July, in tbe year of our Lord 1802,. entitled ‘ An act to suppress insurrection, to punisb treason and rebellion, to seize and confiscate tbe property of rebels, and for other purposes’; and whereas the United States attorney for tbe eastern district of Louisiana did, on tbe 7th day of August,. A. D. 1863, file a libel of information in this court, praying the-condemnation of said property and real estate under tbe act aforesaid, and that process of monition issue against the owner and owners of said property and real estate and all persons interested or claiming an interest therein, warning them at some early day to appear and answer said information:
    “It is therefore, on this 8th day of August, in tbe year of our Lord 1863, ordered that notice be given to tbe owner and owners-of said property and real estate, and all persons interested or claiming any interest therein, to ajjpear and answer this information on tbe 31st day of August, and show cause, if any they have, why said ^property and real estate, and tbe right,, title, and interest therein of the said Charles M. Conrad, should, not be condemned and sold according to law, and that notice' be given by posting a copy of this order upon the front door of the court-house of' the district, and by publication in the Bra newspaper twice a week previous to said 31st day of August, A. D. the first to be on or before 11th inst.
    “New Orleans, August 8th, 1853.
    “E. H. Durell, Judge?
    
    “The President of the United States of America to the marshal of the eastern district Louisiana, or to his lawful deputy, greeting:
    “You are hereby commanded forthwith to seize, and into your possession take, the- property, a full description whereof is hereto annexed as a part of this writ, together with all the improvements, buildings, privileges, and other hereditaments thereunto belonging, as well as all the right, title, and interest of Charles M. Conrad therein, now libeled by the United States for the causes set forth in the libel now pending in district court of the United States for the eastern district of Louisiana; that you do cite and admonish the owner or owners, and all and every other person or persons having or pretending to have any right, title, or interest in or to the same, to be and appear before a district court of the United States for the district aforesaid, to be holden at the city of New Orleans, on or before the third Monday from the service hereof, to show cause, if any they have or can, why the said property, &c., should not be condemned and sold agreeably to the prayer of libellant; and how you have executed this warrant that you make return according to law.
    “Witness the honorable Edward H. Durell, judge of the said court, at New Orleans this 8th day August, 1865, and the 88th year of Independence of the United States.
    [l. s.l “Alfred Shaw, Cleric,
    “By K. Lowe, Dept. Cleric.”
    MARSHAL’S RETURN.
    “Received August 8th, 1863, and in obedience to the within warrant seized and took into my posession the within-described property, posted copies of the libel of information, this warrant, and the order of the judge, on the door of the court-house, and published monition in the Era, a daily newspaper printed and published in the city of New Orleans, on the 11, 15, 19, 22, 25, 29 August, 1863.
    “ James Graham, U. S. Marshal,
    
    “II. Lowe, Dept. Cleric.”
    “DEE AULT.
    “ Fxtraets from the minutes of Sept, lsi, 1863.
    “ The delay allowed by law having expired, and no claim or defense having been filed, after due monition and proclamation, on motion of the dist. att’y it is ordered that all persons interested in the property seized herein be pronounced in contumacy and default, and the libel adjudged and taken pro confesso.”
    “ORDER TAXING- DISTRICT ATT’Y’S EEE.
    
      “Fxtraet from minutes of 28 June, 1364.
    “ Ordered that $1,520 be taxed as the fees due Rufus Waples, U. S. dist. att’y, for services rendered in this case up to date.
    “June 27, ’64.”
    “CAUSE EIXED EOR TRIAL.
    “ Extract from minutes of 30th Jan., 1865.
    “On motion of R. Waples, esq., U. S. attorney, ordered that the above entitled and numbered case be assigned for trial at the hour of 11 a. m., on Friday, 3d February, 1865, and that all of the parties interested be notified thereof.”
    “NOTE OE EVIDENCE.
    
      Filed February 3d, 1865.
    “Libellants offered in evidence the warrant, monition, and marshal’s return, and the evidence of John A. Newell and J. E. Wallace, taken before U. S. Commissioner Claiborne, 19th April, ’64; that of R. R. Barron, taken 18th May, ’64; that of Rob. Dalton and Harmon Doane, taken 19tb Jan’y, ’65; and that of Ales. White and Joseph Howell, taken 25th Jan’y, ’65, all before the same commissioner.”
    ‘‘HEAPING- AND DEGREE.
    
      “From the judgment docket.
    
    “This cause came up .for trial. District attorney for libel-lants.
    “And the monition issued in this case having been heretofore returned, the usual proclamation having been made, the default of all persons entered, and the law and the evidence duly considered, it is thereupon, on motion of E. Waples, esq., H. S. attorney, ordered, sentenced, and decreed by the court now here, and his honor, the district judge, by virtue of the power and authority in him vested, doth hereby order, sentence, and decree that the ten lots of ground, with the buildings and improvements thereon, the property of Charles M. Conrad, a full description whereof is contained in the libel on file, be, and the same are hereby, condemned as forfeited to the United States. •
    “And it is further ordered and decreed that the clerk of this court issue a writ of venditioni exponas to the marshal of the district, returnable on 15 March, 1865, and that upon the return thereof the proceeds be distributed according to law, the legal rights of the intervenor to theproceeds being reservedfor further action.
    “Judgment rendered February 3d, 1865. Judgment signed February 8th, 1865.
    “E. H. Durell, Judge.”
    
    “venditioni exponas.
    
      “Issued February V)th, ’65.
    “United States district court, eastern district of Louisiana.
    “The President of the United States of America to the marshal of the eastern district of Louisiana, or either of his deputies, greeting:
    “Whereas, at a district court of the United States holden at New Orleans, for and within said district, on the third day of February, A. D. 1865, ten lots of ground, with all the buildings and improvements thereon, the property of Charles M. Conrad, fully described in the libel of information on file, were, after proclamation and due proceedings had, decreed forfeit and ordered to be sold at public auction: These are, therefore, to command you to sell to the highest bidder, at public auction, at Merchants and Auctioneers’ Exchange, 18 Eoyal st., within said district, on the 22d day of March, 1865, at 12 o’clock .in., the said property, first giving thirty days’ notice at least of the time and place of sale by advertising the same in the True Delta, one of the newspapers printed at New Orleans, and by proclamation in the usual form on the day of sale; the money arising from the sale to be paid into the registry of the said court, to be disposed of as the law in this case directs.
    “And make due return thereof, with your doings herein.
    “Witness the honorable Edward H. Durell, at New Orleans, this 10th day of February, A. D. 1865, and 89th year of Independence of the United States of America.
    [l. s.] “W. S. Benedict, Dep. Clerk.”
    
    “marshal’s return.
    “ New Orleans, March 30th, 1865.
    “ Persuant to this precept, I have caused the property within named to be sold by public auction, and to the highest bidder, at Merchants and Auctioneers’ Exchange, 18 Boyal street, on the day, hour, and place therein directed, having given thirty days’ prerdous notice of the time and place and manner of the sale in the True Delta, one of the newspapers printed in the city of New Orleans, and by the crier on the day of sale, and at such sale the purchasers were, as under—
    Bufus Waples, 2 lots on Camp, between St. Joseph & Delord streets. 6650 00
    “ “ 1 lot on Camp st., and 4-story brick store. 5,200 00
    “ “ 1 lot fronting on New Levee & Fulton strets, & improvements .. 1, 300 00
    [ * * * lots sold to other parties]. 3,075 00
    Total amount of sales. 10,225 00
    “Beference is made to the certificate of the recorder of mort-' gages of the parish of Orleans, hereto annexed.
    “ Whereby the net sales amounted to ten thousand two hundred and twenty-five-dollars cents, which I pay over to Chas. Claiborne, esq., the clerk of the court aforesaid, to be disposed of as the court directs.
    “A. Baudouin, Dep. Marshal.”
    
    “Beceived from Cuthbert Bullitt, United States marshal, ten thousand two hundred and twenty-five dollars cents, being (as he saith) the proceeds of the foregoing sale; the moneys to be disposed of as the court directs, and for which I have signed duplicate receipts.
    “Chas. Claiborne, Clerk.
    
    “New Orleans, March 30th, 1865.”
    
      DECREE OE DISTRIBUTION.
    13i7t April, I860.
    The marshal having returned into court the writ of ven-ditioni exponas, showing that the libelled property sold for.... $10,225
    it is ordered] adjudged, and decreed that after deducting the costs heretofore taxed and allowed, amounting to-.. 4,526 01
    the balance of..... 5,698 99
    be paid into the Treasury of the United States, according to law.
    The items of the costs taxed and allowed, referred to in the foregoing decree of distribution, were as follows :
    District attorney .. $229 50
    Fees of clerk, commissioner, marshal, and register... 677 83
    United States direct tax... 103 56
    Clerk and sheriff’s fees.. 8 50
    City and State taxes 1861, ’62, ’63, ’64 .. 3, 508 62
    Total... 4, 566 01
    III. The claimant paid the amounts of his several bids at which the property was sold to him, and the marshal made, executed, and delivered to him three deeds, of one of which the following is a copy :
    “copy oe Deed.
    “UNited States oe America,
    “ Eastern District o/Louisana, City of New Orleans :
    
    “Whereas I, Outhbert Bullett, marshal of the United States for the eastern district of Louisana, under and by virtue of a writ of venditioni exponas to me directed by the honorable the district court of the United States for the district aforesaid, in the suit entitled The United States versus Ten Lots of Ground, the property of Charles M. Conrad, No. 7653,of the docket of said court, did expose at public sale according to law, and after all the previous legal requisites had been fulfilled and complied with, and after having given full thirty days’ notice of said sale in the True Delta, one of the daily newspapers printed and published in the city of New Orleans, viz, on the 15th, 22d February, 8th, 15th, and 22d March, 1865,
    “The following described property, viz:
    “A certain lot of ground, with a four-story brick store thereon, situated in tbe first district of said city, in tbe square bounded by Camp, Gravier, St. Charles, and Poydras streets, designated by tbe No. 47 on a plan by T. Thompson, 7th May, 1842, deposited in tbe office of H. B. Cenas, which lot of ground measures 23 feet front on Camp street, by a depth of 90 feet between parallel lines,
    “On Wednesday, the 22d day of March, 1865, in the year one thousand eight hundred and sixty-five, at the hour of twelve o’clock, meridian, at the Merchants and Auctioneers’ Exchange, No. 18 Boyal street, between Canal and Customhouse sts., when, after making due proclamation of said sale and duly crying the said one lot of ground and appurtenances, the same were adjudicated to Bufus Waples, being the last and highest bidder thereon, for the price and sum of fifty-two hundred ($5,200) dollars in cash at the time of adjudication, which said sum I hereby acknowledge to have received in ready current money of the United States of America.
    “And it appears from a duly certified copy from the records in the office of the recorder of mortgages for the parish of Orleans, which certificate is annexed to the venditioni exponas under the authority of which the above-described property has been sold, that there are none other than the following mortgages recorded against the above-described property, viz: B. P. 1, fos. 370 & 391. The privileges in favor of the board of commissioners of the first and second draining districts on the property within their respective limits. B. 51, fo. 299. The one by him granted in favor of E. A. Canon, judge of the 2d district court, as per act before H. B. Cenas, notary, dated 8th and executed 10 April, 1847, above-described property to secure — 1, The reimbursement of the portion accruing to his minor children, Charles A., M. A., & Laurence Lewis Conrad, out of the price at which the real estate belonging to the com-mity between him and his deceased wife, & which was adjudicated to them, amounting to $7,062.50; and, 2, To secure the faithful performance of his duties as tutor of said minors:
    “Now, therefore, know all men by these presents, that I, the U. S. marshal aforesaid, in consideration of the premises and by virtue of the laws in such case made and provided, and under the authority of the acts of Congress of 6th August, 1861, the 17th July, 1862, and the 3d March, 1863, in relation to confiscation, do hereby sell, transfer, assign, and set over, unto the said Bufus Waples, as aforesaid, his heirs, administrators, executors, and assigns, all and singular the above-described property, with all the buildings and improvements thereon, rights, ways, privileges, hereditaments, and appurtenances to the same belonging and in any wise appertaining.
    “To have and to hold the above-described property, with all the buildings and improvements thereon, rights, ways, &c., &c., as aforesaid, unto the said Bufus Waples, his heirs and assigns as aforesaid, to Ms and tbeir proper use, benefit, and beboof, forever.
    “In testimony whereof, I grant these presents, under my signature as TJ. S. marshal aforesaid, in the said city of New Orleans, on this 29th day of March, in the year of our Lord one thousand eight hundred and sixty-five, and of the Independence of the United States of America the eighty-ninth.
    “ClTTHBERT BULLETT,
    
      U. 8. Marshal.
    
    [Bevenue stamp.]
    “Executed in presence of — •
    “A. BOISBLANC.
    “J. J. Preis.”
    The other two deeds are of like tenor, except in the descriptions of the real estate and the consideration expressed, which conform to the terms of sale. Copies of said deeds are annexed to the petition.
    IV. After said sales, Charles M. Conrad aforesaid, by writ of error from the circuit court of the United States to the said district court, obtained a review of the proceedings. Under this writ of error the circuit court ordered that the judgment of the district court be set aside and the information dismissed, but that the net proceeds of the property sold under the judgment be paid to Charles M. Conrad, and that the sale to claimant stand confirmed; the money paid by the claimant Waples being still in the registry 'of the court.
    From this judgment.of the circuit court the United States and Charles M. Conrad had recourse to the Supreme Court of the United States by cross-writs of error; and by that court on the 4th of May, 1874, the judgment of the circuit court was reversed, and the cause remanded with instructions to affirm the judgment of the district court. Reported under the name of the Confiscation Cases (20 Wall., 92 -117, and 1 Woods K., 221.)
    The following mandate was received and filed in said case in said district court July 29,1874:
    “ United States oe America, ss :
    
    “The President of the United States to the honorable the judges of the district court of the United States for the district of Louisiana, greeting:
    “Whereas lately, in the district court of the United States for the district of Louisiana, before you, in a cause between the United States and Ten Lots of Ground, tbe property of Charles M. Conrad, the judgment of the said district court was in the following words:
    “‘This cause came up for trial, district attorney for libel-lants, and the monition issued in this case having been heretofore returned, the usual proclamation having been made, the default of all persons entered, and the law and the evidence duly considered, it is thereupon, on motion of E. Waples, esq., U. S. attorney, ordered, sentenced, and decreed by the court now here, and his honor the district judge, by virtue of the power and authority in him vested, doth hereby order, sentence, and decree that the ten lots of ground, with the buildings and improvements thereon, the property of Charles M. Conrad, a full description whereof is contained in the libel on file, be, and the same are hereby condemned as forfeited to the United States.
    “ ‘ And it is further ordered and decreed that the clerk of this court issue a writ of venditioni exponas to the marshal of the district, returnable on 15th March, 1865, and that, upon the return thereof, the proceeds be distributed according to law, the legal rights of the intervenor to the proceeds being reserved for further action.
    “‘Judgment rendered February 3d, 1865.
    “‘Judgment signed February 8th, 1865.’
    “As by the inspection of the transcript of the record of the said district court, which was brought into the circuit court of the United States for the fifth circuit, holding sessions in and for the district of Louisiana, by virtue of a writ of error, agreeably to the act of Congress in such case made and provided, fully and at large appears:
    “ And whereas in the present term of April, in the year of our Lord one thousand eight hundred and seventy-four, the said cause came on to be heard before the said circuit court on the said transcript of the record, and was argued by counsel, on consideration whereof the judgment of the said circuit courtis in the following words, viz:
    “‘Considering the mandate of the Supreme Court of the United States on file in this cause, in conformity therewith it is ordered, adjudged, and decreed that the judgment rendered by the district court of the United States for this district on the 3d of February, 1865, be and the same is hereby affirmed, with costs, and that a mandate do issue to said court.’
    “You, therefore, are hereby commanded that such further proceedings be had in such cause as, according to right and justice and the laws of the United States, ought to be had, the said writ notwithstanding.
    “Witness the honorable Morrison E. Waite, Chief Justice of the Supreme Court of the United States, the 29th July, in the year of our Lord one thousand eight hundred and seventy - four.
    [seal.] “F. B. ViNOT, Dep. Olerlc.
    
    
      Y. On tbe 26th of June, 1874, Lawrence Lewis Conrad, son of said Charles M. Conrad, brought his petitory action (ejectment) in the circuit court of the United States for the eastern district of Louisiana against said Waples and others, by petition, of which the following is a copy, as far as is material in this case:
    “ United States oe America:
    “Circuit court of the United States, fifth circuit and district of Louisiana.
    Lawrence Lewis Conrad ) vs. > No. 7250. Bttetjs Waples et al. )
    “ To the honorable the judges of the circuit court of the United States sitting in and for the fifth judicial circuit and district of Louisiana:
    “The petition of Lawrence Lewis Conrad, who is a citizen of the State of Maryland, and who resides in the city of Baltimore, in that State, respectfully shows:
    “That on and before the Cth day of May, 1862, Charles M. Conrad, the father of your petitioner, was the sole and lawful owner, by good and valid title, of the folio wing-described’lots and parcels of grounds, with the improvements thereon, situated in the city of New Orleans, to wit:
    “First. A certain lot of ground, together with the four-story brick store thereon, situated in the first district of New Orleans, in the square bounded by Camp, G-ravier, St. Charles, and Poydras streets, and designated by the number ‘ forty-seven,’ on a plan of the same and of other lots drawn by W. Thornton Thompson, surveyor, May 7th, 1842, and deposited for reference among the records of H. B. Cenas, late notary public in said city, and now designated by the number ‘forty-seven’ Camp street. Said lot measures twenty-three (23) feet front on Camp street by a depth of ninety feet between parallel lines, English measure, and was acquired by said C. M. Conrad from W. O. Micon, assignee of John Bichardson, by act before IT. B. Cenas, late notary public, on or about June 28th, 1842.
    “ Second. A certain lot of ground, together with the three-story brick dwelling-house, three-story brick building, and convenient stable thereon, situated in the city of New Orleans, on the western side of Carondelet street, between ITevia (now Lafayette) and Poydras streets, in the suburb St. Mary (now the first district), designated as lot number three (3) on a plan drawn by Charles F. Zimpel, deputy city surveyor, December 10th, 1833, and deposited as plan No. 1, inbook of plans of Jules Mossy, notary public. Said lot measures twenty-three feet eight and one-half inches front on Carondelet street by twenty-three feet nine inches and two lines, more or less, in the rear, by a depth of one hundred and forty-seven feet eleven inches, more or less, on the boundary line of lot No. 2, and of one hundred and forty-nine (149) feet ten and one-half inches, more or less, on the boundary line of lot No. 4, the place between the stable and the yard being reserved as an alley to be appropriated forever to the common use of this and the five adjoining lots designated on said plan, being the same lots acquired by the said O. M. Conrad from the succession of Samuel Livermore, by act of Jules Mossy, notary public, on or about 28th February, 1834.
    “Third. Two certain lots of ground, together with the buildings and improvements thereon, situated in New Orleans, in the suburb St. Mary (now the first district), on Camp street, between St. Joseph and Delord streets, designated by the numbers seven and eight on a plan drawn by Charles F. Zimpel, deputy surveyor-general, April 8th, 1835, and annexed to an act before William Christy, notary public, April 23d, 1835. Said lots adjoin each other. No. seven measures twenty-four feet fronton Camp street by one hundred and sixteen feet ten inches and five lines in depth between parallel lines. No. eight has a like and equal front on Camp street, by one hundred and twenty-seven feet two inches and five lines in depth between parallel lines, English measure, being the same two lots of ground which the said C. M. Conrad acquired from H. C. Cammach by act before A. Mazureau, notary public, June 5th, 1837. '
    * # * * # ' # #
    “Your petitioner farther avers that on or about 6th May, 1862, by authentic act, executed before Joseph L. Nettles, recorder of the parish of St. Helena, and ex-officio notary public, a settlement was made between your petitioner and Charles Angelo Conrad, his brother, who had then both attained majority, and their father, said Charles M. Conrad, whereby their said father, for and in consideration of said debts and sums of money due by him to them, did sell, transfer, and convey and deliver to him and his said brother, in common, certain lots of ground and all the buildings and improvements thereon, described in said act, situated in said city of New Orleans, among which were each and all of the lots and properties heretofore described in this petition, and which are now claimed by petitioner in this cause, as will hereafter appear. Said act was duly recorded in the office of the register of conveyances in the said city, on or about the 31st day of May, 1862 $ all of which will more fully appear by a copy of said act and the certificate of registry annexed thereto, which are hereto annexed as parts hereof.
    “Your petitioner farther avers that at the time said act was executed each and every party thereto was a citizen of Louisiana and resided in the city of New Orleans, but they were all temporarily sojourning in the parish of St. Helena, in said State, where said act was executed. Tour petitioner farther avers that both prior to the execution of said act and subsequently to the 17th day of July, 1862, he and his brother were, and continued to be, engaged in rebellion against the United States in several of the Confederate States, as officers of the army of the Confederate States of America.
    “But your petitioner avers that both he and his said brother have been granted full pardon and amnesty by Andrew Johnson, President of the United States, by his several proclamations of pardon and amnesty, particularly by two proclamations issued respectively on July 4th and December 28th, 1868.
    “But your petitioner avers that one Rufus Waples, who is a citizen of the State of Louisiana, and resides in said State, on or about the 22d March, 1865, under color of certain legal proceedings against C. M. Conrad, instituted and conducted by him, said Waples, took possession of the said heretofore-described lots of ground and the improvements thereof, well knowing that he had no right or title to the same, and that the same and each and every part thereof belonged to your petitioner and his said brother, and, notwithstanding all this, and that your petitioner (after he had become sole owner of said lots, as will appear hereafter), on or about February 25th, 1870, instituted a suit against him in this honorable court to recover said lots of ground (which, however, was discontinued, your petitioner being not ready for trial), the said Waples has continued ever since said 22d March, 1865, and still continues in possession of said property, and each and every part thereof, and pretends to be the owner thereof, and has always refused to surrender said properties, or any part thereof, to your petitioner and his said brother, when they owned the same in common, and has refused to surrender the same, or any part thereof, to your petitioner, and still refuses since your petitioner became sole owner of the same, altho’ said Waples has often been amicably requested. And your petitioner avers that said Waples is a possessor of said lots and improvements in bad faith, and is a mere usurper, and has been a possessor, thereof, in bad faith, and a usurper ever since 22d March, 1865. '
    “ And your petitioner farther avers that since the said 22d March, 1865, the said Waples has leased the said lots and improvements at various times to various persons, and has collected and received the rents, issues, and profits of the whole thereof, amounting to more than sixty thousand dollars ($60,000.00) to his own use.
    “Your petitioner farther avers that by an act passed in the city of Tew Orleans, before Adolph Mazareau, notary public, on or about 24th February, 1870, duly recorded on or about the 25th day of February, 1870, the said Charles Angelo Conrad did grant, transfer, and convey to your petitioner all the said Charles A. Conrad’s undivided one-half right, title, and interest in and to tbe said afore-described lots of ground, with the improvements thereon, and each of them, by which said act, and the aforesaid act of Cth May, 1862, from said C. M. Conrad, your petitioner became, and is now? the sole, true, and lawful owner of the whole of said lots and improvements and each and every part thereof. And said Charles A. Conrad, by the said act of 24th February, 1870, did further grant and transfer to your petitioner all his rights and claims against the said Rufus Waples for the rents, issues, and profits of said lots and improvements since the said 22d March, 1865, all of which will more fully appear by reference to a copy of said act and certificate of registry thereof, and hereto annexed as part hereof.
    “And your petitioner farther avers that said Waples has always refused to account to your petitioner and his said brother, when they were owners in commonty of said properties, and has refused, and continues to refuse, to account to your petitioner, as sole owner thereof, for the rents, issues, and profits so received by said Waples, or which, with proper management, ought to have been received, or for any part thereof,, as he was bound to do as possessor in bad faith.
    # # * # & # *
    ' “And your petitioner avers that he has ground to apprehend that the defendant Bufus Waples and the other defendants herein, may make use of their possession of the real property herein claimed by your petitioner, to dilapidate or to waste the-fruits or revenues produced by such property, or to convert the same to their own use.
    “Wherefore your petitioner prays that said Bufus Waples- and said Hibernia National Bank, and said Mrs. G. A. Thompson, widow, and said Kellett and Sincer and John Kellett and Lewis Sincer, composing said firm, and said Patrick Leonard and said James Cox, may each and all of them be duly cited to appear and answer this petition; and that, the annexed bond and affidavit being considered, a writ of sequestration may be issued herein according to law, commanding the marshal of the United States to take into his possession and to keep each and all of the hereinbefore named and described pieces of property and improvements thereon until after the final decision of the suit.
    “And your petitioner farther prays that after all due proceedings had; your petitioner be decreed to be the true and lawful owner of the whole of said lots and pieces of property, with the improvements thereon, heretofore in this petition fully described, and that he have judgment for and recover the same against said Waples and the other defendants herein; and that the said Waples and the other defendants herein be ordered forthwith to surrender and restore the same to your i>etitioner ; and that your petitioner have further judgment against said Waples, as possessor of said properties in bad faith, for the sum of sixty thousand dollars, the rents and profits of said properties already accrued since the 22d day of March, 1865, and for such farther sum as may be by him due to your petitioner for the rents and profits thereof, at the rate of six thousand dollars ($6,000) per annum, during such period as said Waples may continue in possession of said property, from and after the filing of this suit.
    
      *******
    
    “And your petitioner prays that he have farther judgment against such of the above-named parties as do not disclaim title as aforesaid, as possessors in bad faith, for the rents and profits of the property possessed and occupied by them, respectively, during the period of their respective possessions and occupancy thereof, and for such farther sum as may be due to your petitioner on account of said possession, from an drafter the filing of this petition until final judgment herein.
    “And your petitioner farther prays that he be decreed to be entitled to, and have judgment for, all rents and profits of said properties which shall accrue from and after filing of this suit, whether the same be collected or received by the defendants herein, or any of them, or by the marshal of the United States, or other officer under the writ of sequestration issued in this suit, or other order or process of this court. He prays for costs and for general relief, and as in duty bound, &c., &c.
    “ O. M. Conrad & Son,
    
      Att’y for Petitioner.”
    
    On the 26th of May, 1873, there was a verdict and judgment for the defendant, Rufus Waples, whereupon Lawrence L. Conrad obtained a writ of error from the supreme to the circuit court, and March 25, 1878, the Supreme Court of the United States reversed this judgment, and ordered a new trial. (See Gonrad v. Waples, 96 U. S.. R., 279.)
    Upon the new trial so ordered the following proceedings were had:
    “ORDER DISCHARGING- CERTAIN DEPENDANTS.
    
      “From the minutes, April term, 1878.
    “ New Orleans, Wednesday, May 22d, 1878.
    “ A.11 the defendants in this case, save and except Rufus Waples, having disclaimed title to the property in controversy in this cause, and having disclosed the name of their lessor respectively, it is ordered that said defendants be, and they are hereby, discharged from this suit, save and except said Waples, and that said Waples be and remain the sole defendant herein.
    
      “ NOTE OP EVIDENCE.
    
      “Filed May 22d, 1878.
    “ Plaintiff offered act of sale from O. M. Conrad to O. A. and L. L. Conrad, of 6tb May, 1862, before J. L. Nettles, recorder, parish of St. Helena, and the costs of its recordation.
    “Also exchange of property between C. A. Conrad andL, L. Conrad, 24 Febr’y, 1870, act before A. Mazureau, and cost of recordation.
    “VERDICT.
    “ May 22d, 1878.
    “ This cause came on for trial. L. L. Conrad in pa. pa. J. E. Beckwith, for defendant. When the following jurors were called and sworn to try the issue.
    #*##**#
    “And the jury being complete, the court appointed J. Wm. Davis foreman and the trial proceeded, and after hearing the pleadings and the evidence and the instructions of the court, the cause was submitted to the jury, who thereupon delivered the following verdict, to wit:
    ‘“We, the jury, find á verdict in this case for the plaintiff and against the defendant, Eufus Waples, for all the property and improvements described in the pl’ff’s petition herein, and we find and assess one cent damages in favor of plaintiff and against said defendant for rents and profits.
    “ ‘May 22, 1878.
    ‘“J. WM. Davis, Foreman.’
    “ Whereupon it was ordered that verdict be recorded.
    “ JUDGMENT.
    “April term, 1878.
    “New Orleans, Wednesday, May 22d, Í878.
    “ By reason of the verdict of the jury herein, and in accordance therewith, it is ordered, adjudged, and decreed that the plaintiff, Lawrence Lewis Conrad, be recognized as the true and lawful owner of the following-described lots and pieces of property, with the improvements thereon, to wit:
    “ 1st. A certain lot of ground, together with the four-story brick store thereon, situated in the first district of New Orleans in the square bounded by Camp, Gravier, St. Charles, and Poy-dras streets, and designated by the number forty-seven on a plan of the same, and of the other lots, drawn by W. Thornton Thompson, surveyor, May 7th, 1842, and deposited for reference among the records of H. B. Cenas, late notary public in said city, and now designated by tbe number 47 Camp street. Said lot measures twenty-three (23) feet front on Camp street by a depth of ninety feet between parallel lines, English measure, and was acquired by O. M. Conrad from W. C. Micon, assignee of John Richardson, by act before H. B Cenas, late notary public, on or about June 28th, 1842.
    “2d. A certain lot of ground, together with the three-story brick dwelling-house, the three-story brick buildings and convenient stable thereon, situated in the city of New Orleans, on the western side of Oarondelet street, between Hevia (now Lafayette) and Poydras street, in the suburb St. Mary (now the first district), designated as lot number three (3) on a plan drawn by Charles F. Zimpel, deputy city surveyor, December 10th, 1833, and deposited as plan No. 1, in book of plans of Jules Mossy, notary public. Said lot measures twenty-thre e feet eight and one-half inches front on Oarondelet street by twenty-three feet nine inches and two lines, more or less, in the rear, by a depth of one hundred and forty-seven feet eleven inches, more or less, on the boundary line of lot No. 2, and of one hundred and forty-nine (149) feet ten and one-half inches, more or less, on the boundary line of lot No. 4, the place between the stable and yard being reserved as an alley to be appropriated forever to the common use of this and the five adjoining lots designated on said plan, being the same acquired by C. M. Conrad from the succession of Samuel Livermore, by act before Jules Mossy, notary public, on or about 28th February, 1834.
    “3d. Two certain lots of ground, together with the buildings and improvement thereon, situated in New Orleans in the suburb St. Mary (now the first district), on Camp street, between St. Joseph and Delord Camp st., designated by the numbers seven and eight on a plan drawn by Charles F. Zimpel, deputy surveyor-general, April 8th, 1835, and annexed to an act before William Christy, notary public, April 23d, 1835; said lots adjoin each other. No. seven measures twenty-four feet front on Camp street by one hundred and sixteen feet ten inches and five lines in depth between parallel lines; No. eight having like and equal front on Camp street by one hundred and twenty-seven feet ten inches and five lines in depth between parallel lines, English measure, being the same two lots of ground which C. M. Conrad acquired from H. C. Cammack by act before A. Mazu-reau, notary public, June 5th, 1837. (Certified copies of said notarial acts of conveyance of all of the above-described property to C. M. Conrad on file.)
    “ It is further ordered, adjudged, and decreed that the defendant, Rufus Waples, do forthwith surrender all said property above described into the hands of the said Lawrence Lewis Conrad, and that he be put in possession thereof.
    “And it is further ordered, adjudged, and decreed that said plaintiff do recover of the said defendant, Rufus Waples, the sum. of one cent as damages for rents and profits and all costs of suit.
    “Judgment rendered May 22d, 1878.
    “Judgment signed May 27th, 1878.
    “Edward 0.- Billings, Judge.”
    
    VI. The claimant entered into possession of said real estate upon the execution of deeds thereof to him, dated March29,1865, and set forth in finding III, and remained in possession of the same until he was ousted, in pursuance of the judgment of May 22,1878, set forth in finding V.
    Said Charles M. Conrad died in February, 1878.
    
      Mr. Thomas J. Durant and Mr. J. Madison Day for the claimant:
    Defendants undertook by proceedings in confiscation, under Act YUh July, 1862 (12 Stat. L., 589), to create an absolute estate and interest in themselves in ten lots of ground, and, supposing they had succeeded in doing so, they undertook to sell and convey four of said lots through the agency of the United States district court in Louisiana to plaintiff in fee-simple absolute, and with a covenant of warranty in the deed.
    But it has turned out that defendants were mistaken in supposing that they had by their proceedings acquired the four lots of ground which they undertook to sell and convey to plaintiff.
    The government had nothing whatever to sell and convey, as its proceedings were null and void and wholly insufficient to create or invest it with any interest whatsoever. The estate and interest then intended to be sold, and for which the purchaser was induced to pay his money, did not exist, and, as a matter of course, the government neither parted with any right or interest whatsoever, nor did or could the purchaser acquire or take anything by his purchase. Plaintiff is, therefore, on the plainest principles of common right and justice, entitled to recover his money. Not a case to which the rule of caveat emptor or any other maxim of the common law can be applied for several reasons.
    There is no common law of the United States. (Wheaton v. Peters, 8 Pet., 658.) Oaveat emptor, then, as it may exist in England and in some of the different States, is not applicable to Federal sale in Louisiana, where no such rule is recognized or enforced.
    
      Caveat emptor has, then, no application to Federal sale in Louisiana, when there is no such principle in any Federal law. For laws of a foreign state or country can have no extra territorial force beyond the boundaries of such state or country. (Story’s Conf. L., §§ 32, 33, 76; 13 Pet., 519, 589 ; 5 Mart. (La.) N. S., 569, 596, 597, 598.)
    And different States of the Union, except for purposes of the union, are foreign states to each other. (BueJmer v. Finley, 2 Pet., 586, 590; 9 .Pick., 112, 130.)
    And citizens of one state or country are not supposed to know the laws of any other state or country. (9 Pick., 130; 1 J. R., 385; 14 Mass., 455; 1 Shep., 45; 5 De G., M. & G., 278.)
    The laws of each state and country must, therefore, necessarily govern all transactions which take place in the same, as the validity and interpretation of contracts is governed by the laws of the state or place where made. (8 Pet., 368, 372 ; 4 Mart. (La.) N. S., 192,193; 5 ib., 569,595, 597; 2 Hagg. Const., 61; 13 Mass., 23; 23 Eng. L. and Eq., 288; 13 Pet., 378, 379.)
    The inevitable conclusion, then, is that caveat emptor, as it may exist in England and in some of the different States, cannot be applied or attach to a sale by the United States in Louisiana, when that rule has never been adopted either by the United States or the State of Louisiana. '
    For if any other rule or principle besides what is embodied in the laws of the United States be applicable, it must be the Louisiana law alone, and not the law of any foreign state or country, as the Federal Government recognizes in all its departments the laws of each State as constituting rules of decision in the same, except where the Constitution, treaties, and statutes of the United States otherwise expressly provide. (6 Pet., 291; 13 ib., 45; 7 How., 1; 11 ib., 297; 12 ib., 361; 21 ib., 1; 22 ib., 352; Eev. Stat., § 72L.)
    And by the laws of Louisiana there is an implied warranty in all sales, judicial as well as conventional, the law imposing and attaching a warranty as a legal consequence to all sales without any stipulation to that effect. (5 La. Ann., 314; 10 ib., 137,189; 13 ib., 381; 9 ib., 297.)
    And “the rule in equity,” also, “is clear and well established, requiring a perfect title to be made unless the contrary has been agreed.” (Hall v. Hobart, 16 Me., 164.)
    But not only does the rule in equity and the law of Louisiana require a good title to be made, but tbe confiscation act itself (12 Stat. L., 591, § 7.) And all the proceedings and sale were on the basis that the thing, property, itself, was designed and intended to be conveyed and pass to the purchaser.
    The sale was not intended to be like an ordinary judicial sale in those States or England, where the common-law rule of caveat emptor is, recognized and applied, but it was an extraordinary statutory sale of an adjudicated title and interest in and to specific property, and which had, in the language of the statute, become the property of the United States.
    When the government sold the property it sold it as its own, and did not sell it as property in which anybody else had or could have any interest or concern. (Semines v. United States, 1 Otto, 26; Confiscation Cases, 20 Wall., 112,113.)
    But government, as it now apimars, had nothing to sell and convey, by reason of the confiscation proceedings being null and void.
    The sale, therefore, was the sale of a non-existing right or thing, and where that is the case the sale is null and void, as the minds of the parties cannot be said to meet and assent to a contract in relation to a non-existing right or thing. Hitchcoclc v. Ciddings, 4 Price, 135; Allen v. Hammond, 11 Pet., 63, 71, 72; Conturie v. Hastie, 5 House Lords Ca., 673, 681; 2 Cush., 80, 86; 9 Allen, 492, 499; 7 Gill & J., 407 ; 20 Pick., 139.)
    And it is well settled that money paid for a title or thing which had no existence at time of contract can be recovered back, even though there was no warranty in conveyance. (Gardiner v. Mayor, &c., 26 Barb., 423 ; 4 Selden, 331; 4 Price, 135; 7 Exch., 208; 20 Pick., 141; 11 Pet., 63.)
    Established doctrine now is, “That a vendor undertakes that he is the owner of that which he assumes to sell.” (1 Met. (Ky.) B., 192,193; 4 Seld., 331; 17 Com. Bench, N. S., 721; 26 Barb., 423, and numerous cases therein cited.)
    For “ a vendor is bound to know that he actually has that which he professes to sell.” (Allen v. Hammond, 11 Pet., 72.)
    But another conclusive reason which entitles plaintiff to recover his money is the express covenant of warranty in the deed. Deed says: “ To have and to hold the above-described property,” &c., “ unto tbe said Eufus Waples, bis beirs,” &c., “to bis and their proper use, benefit, and beboof forever.” This was absolute warranty, as no particular form of words necessary to constitute a warranty. (Newcomb v. Presly, 8 Met., 410 ; Cbitt. on Cont., 643, lltb ed.; 11 Howe, 322, 323, 325.)
    And if warranty made by mistake and without authority, government has adopted and ratified tbe warranty by accepting tbe purchase price. (Brown v. United States, 6 O. Cls. B., 171, 197, 199; 8 How., 157; 31 N. Y., 619; 115 Mass., 310 ; 2 C. Cls. B., 476.)
    Tbe government is not only estopped to deny warranty by acceptance and receipt of price, but is also bound because tbe court bad a general discretion and authority under tbe act (12 Stat., L., 591, §§ 7, 8) to direct such deeds to be executed and delivered as should vest a good and valid title in purchaser. {McKee v. United States, 12 C. Cls. B., 527, 528; 9 ib., 187, 196.)
    And validity of tbe act does not depend upon its being a wise exercise of discretion, but upon the fact that party bad a right to exercise bis discretion. (Law Bep., 12 Chan. Div., 150.)
    And it has also been held for a long time, and in many cases, ■that money paid under a void judgment or execution may be recovered back on tbe ground of a failure or want of consideration. (Newdigate v. Davy, 1 Ld. Baym., 742; Chapman v. City of Broolclyn, 40 N. Y., 372; Me Corren v. Avery, 37 Mich., 121,122; Norton v. Boole Co., 13 Wis., 684,686, 687; Henderson v. Overton, 2 Yerg., 394; Sands v. Kynham, 27 Gratt., 291, 304; Bari v. Blcksford, 6 Allen, 549, 550.)
    Purchaser, as far as respects bis rights to recover bis money back, is not chargeable with knowledge or notice of a want of jurisdiction, or of defects in judicial proceedings, which will avoid tbe sale, because it is the duty of plaintiff or party selling to see tbe sufficiency of the authority for selling. (13 Wis., 686,687; 37 Mich., 121,122; 7 Baxter (Tenn.) B., 333; 55 Miss., 337 ; 26 Barb., 423, and foregoing authorities.)
    
      Bigelow v. Forrest (9 Wall., 339), and other cases cited by defendants, were cases where knowledge as to legal effect of proceedings was imputed to purchaser in favor of third parties, and whose rights were sought to be barred by the proceedings and decree. As to third parties, a purchaser must show a valid judgment and sale under same, in order to bar the claim of tbe true owner. But tbis rule and principle bas no application as to right of purchaser to recover bis money back from plaintiff in void proceedings. Yoid proceedings confer no rights, and are no protection to any one.
    All parties concerned in executing void judicial proceedings are bable to be treated as trespassers. [Albe v. Ward, 8 Mass.,, 85.)
    Plaintiff is entitled to recovery under any law, as defendants alone instrumental in causing tbe seizure, condemnation, and sale of tbe property.
    Tbe irresistible current of authority is that where plaintiff in execution is in any way instrumental in causing tbe seizure and sale of property which does not belong to tbe defendant, but to a stranger who recovers it from tbe purchaser, tbe purchaser can recover bis money back from tbe plaintiff in execution, “ upon tbe principle,” as stated by tbe courts, “ that be bas parted with bis money, through tbe agency of tbe plaintiff, for a consideration which bas failed.” (Sanders v. Hamilton, 3 Dana, 550; Bartholomew v. Warner, 32 Conn., 98; Brumell v. Hurt, 3 J. J. Mar., 709; Hanna v. Ou/y, 3 Bush, 93 •, Wolford v. Phelps, 2 J. J. Mar., 35; HacMey’e Bx’rs v. Swigert, 5 B. Mon., 88.)
    
      Mr. Assistant Attorney-General Simons (with whom was Mr. John S. Blair) for tbe defendants:
    Tbe death of Charles M. Conrad before tbe possession of Waples was disturbed is sufficient defense to tbis action. In Bigelow v. Forrest, 9 Wall., 339, tbe Supreme Court held that under tbe act of Congress tbe court bad no power to order a sale which should confer upon tbe purchaser rights outlasting tbe life of tbe defendant, and that purchasers were bound to know tbe legal effect of the decree, knowledge of which must be attributed to them. See, also, Bay v. Micou, 18 Wall., 156.
    But leaving out of view tbe death of Charles M. Conrad, and meeting tbe claimant on bis own ground, be bas no right of recovery. Tbe evidence does not show whether thirteen years’ peaceable possession was worth more or less than tbe $7,400 paid by him, but certainly it cannot be said, as in tbe Brmd Case (5 O. Ols. B., 312, 317), “it turns out he took nothing by bis purchase.”
    Brand’s Case differs still further in tbe fact that tbe purchaser there was deceived and misled by the provost-marshal (in excess of his authority) filling the blanks for date, amount, and payee. The bonds became fair on their face, and as Brand purchased in ignorance of this filling in, and of the conditions under which the bonds were placed in the hands of the provost-marshal, an implied warranty resulted that the papers were what they purported to be.
    Here the purchaser had actual, not merely constructive, notice of all the proceedings in the district court which preceded the sale, and on which it was based. He was bound to know the legal effect of the sale (Bigelow v. Forrest), which effect was not to divest any interest, except that of Charles M. Conrad. (Conrad v. Waples, 96 U. S. R., 279; Claims of Mareuard etal., 20 Wall., 114; Day v. Mioou, 18 Wall., 156.)
    Waples, like Burbank (96 H. S. R., 293), “had notice of the character and legal effect of the decree of condemnation when he purchased, and is, therefore, presumed to have known that if the alleged offender possessed no estate in the premises at the time of their seizure nothing passed to the United States by the decree or to him by his purchase.” “The United States acquired by the decree for the life of the offender only the estate which at the time of the seizure he actually possessed * * * and that estate, whatever it was, for that period, passed by the marshal’s sale and deed; nothing more and nothing less.”
    The marshal did not warrant the title, the court did not warrant it, and there is nothing in the act of July 17,1862, authorizing any officer to do more than transfer the title of the United States, leaving to the purchasers the privilege of estimating the value of the title and of bidding accordingly. In the case of the Monte Allegre (9 Wheat., 616, p. 648), the court says: “ In all judicial sales the rule caveat emptor must apply.”
    In Pueheit v. The United States (Devereux’s Digest, p. 103), this court disposed of a case very similar to the present one by holding that the marshal “ could do no more than convey to the purchaser such right and interest in the land as the United States possessed, and the payment thereon by the purchaser is to be considered as having been made in consideration of the conveyance to him of the right and interest of the United States in the premises, such as they may have been, and not in consideration that they would convey a good title to the land.”
   Richardson, J.,

delivered the opinion of the court:

This action is brought to recover seven thousand four hundred dollars paid by the claimant, as he alleges in his petition:

“For real estate sold to him by said defendant (the United States) at judicial sales and deeded to him, his heirs and assigns forever, but which real estate has since been adjudged not to have belonged to said vendor at the time of the sale and the giving of said title deeds, and the petitioner has thus been deprived of said real estate.”

He avers in his petition—

“That in the contracts of sale by which the petitioner had, in good faith, bought said properties and paid therefor, the United States impliedly contracted to repay to the petitioner the price which said United States received, in case the title to said properties should not prove valid and the petitioner should be evicted by reason of said vendor’s want of right and title to convey said lands to the purchaser, and that therefore the sum of $7,400 is justly due and owing by said United States to the petitioner.”

The findings show that the claimant purchased at public auction, under a judicial decree of the district court of the eastern district of Louisiana, the title to certain real estate which had been seized as the property of Charles M. Conrad, and condemned as forfeited to the United States under the Confiscation Act July 17, 1862 (12 Stat L., p. 589, ch. 195), and the joint resolution of the same date, No. 65 (12 Stat. L., 627), giving a legislative construction to its language; that he paid the consideration, and that^the marshal executed and delivered to him deeds of the property.

The first question that arises is, What was the title which the claimant bargained for and which the marshal undertook to convey to him 1

The claimant alleges that it was the absolute fee-simple of the real estate to him and his heirs and assigns forever. To support that allegation he relies upon the language in each of the marshal’s deeds, which, after reference to the previous proceedings of the court, &c., is as follows:

“Now, therefore, know all men by these presents that I, the U. S. marshal aforesaid, in consideration of the premises and by virtue of the laws in such case made and provided, and under the authority of the acts of Congress of 6th August, 1861, tbe 17tb July, 1862, and tbe 3d March, 1863, in relation to confiscation, do hereby sell, transfer, assign, and set over unto the said Eufus Waples as aforesaid, his heirs, administrators, and assigns, all and singular the above-described property, with all the buildings and improvements thereon, rights, ways, privileges, hereditaments, and appurtenances to the same belonging and in anywise appertaining. To have and to hold the above-described property, with all the buildings and improvements thereon, rights, ways, &c., &c., as aforesaid, unto the said Eufus Waples, his heirs and assigns as aforesaid, to his and their proper use, benefit, and behoof forever.”

He also relies upon some language in the information for forfeiture and in the subsequent proceedings of the court, which he construes as referring to a fee-simple estate in the property as the thing to which all the proceedings from beginning to the end relate.

Notwithstanding that language it is clear enough, taking the whole record together, in connection with the repeated decisions of the Supreme Court, that it was the estate of Charles M. Conrad only which the United States proceeded against for acts done by him in violation of the confiscation act.

That it was not necessarily for the whole fee of the property which was seized and condemned is established by the decision of the Supreme Court in Day v. Micou (18 Wall., 156). There the court held in a like case that those who hold other interests in the land were not bound to come in and asserttheir claims. Their interests did not pass to the purchaser at the sale, and they remain unaffected by the decree of condemnation and sale thereunder.

The information did not apply to the property independently of ownership. It applied to the title and estate of the offender, whatever that might appear to be. Its force and effect could not be enlarged by the loose and unguarded language incorporated into the subsequent orders, decrees, and deeds. The court had no power to condemn anything more than the estate of Charles M. Conrad, and the marshal had no authority to offer for sale, to bargain, or to convey any other estate.

Nor was it the whole fee-simple of Charles M. Conrad’s estate in the property of which the statute authorized the condemnation, forfeiture, and sale. In the language of the Supreme Court, construing the statute, it was only “ a right to the property seized, terminating with the life estate of the person for whose act it had been seized,” that could be confiscated and sold.

In the case of Bigelow v. Forrest (9 Wall., 350), the construction of the Confiscation Act is thus authoritatively established. The court say:

“The fifth section of the Confiscation Act of July 17, 1862, enacted that it should be the duty of the President of the United States to cause the seizure of all the estate and property, moneys, stocks, credit, and effects of certain persons described in six classes, and to apply and use the same, and the proceeds thereof, for the support of the Army. To one or more of these classes, French Forrest [whose estate had been seized], belonged. * * * Concurrently with the passage of this act, Congress also adopted a joint resolution explanatory of it, whereby it was resolved that no punishment or proceedings under the act should be so construed as to work a forfeiture of the real estate of the offender beyond his natural life. It is a well-known fact in our political history that the resolution was adopted in consequence of doubts which the President entertained respecting the power of Congress to prescribe a forfeiture of longer duration than the life of the offender. Be this as it may, the act and the resolution are to be construed together, and they admit of no doubt that all which could, under the law, become the property of the United States, or could be sold by virtue of a decree of condemnation and order of sale, was a right of property seized, terminating with the life of the person for whose act it had been seized. It follows, then, that the estate acquired by the purchaser at the marshal’s sale expired on the 24th day of November, 1866, when French Forrest died. * * *
“ The proceeding was required by the act of Congress to be in rem, and the decree condemned, not the estate of French Forrest, but, using its own words, “the real property mentioned and described in the libel.” The marshal was ordered to sell the said property, the boundaries of which were given in the title to the decree. Had the purchasers looked at that decree (and knowledge of it must be attributed to them) they would have seen that it was a decree of confiscation of the land, and they were bound to know its legal effect.”

The principles of law thus laid down have been reaffirmed in Day v. Micou (18 Wall., 146), in Exparte Lange (18 Wall., 163), in the Confiscation Cases (20 Wall., 92-116), in Conrad v. Waples (96 U. S.R., 279), and in Burbank v. Conrad (96 U. S. R., 291).

It will be noticed that in Bigelow v. Forrest the court held the purchaser to constructive notice that the sale of the real estate by the marshal was a sale under a decree of confiscation, and they also beld that the purchaser was bound to know the legal effect of the decree, limiting the sale and conveyance to an estate for the life of the offender only. So in Burbank v. Conrad (96 U. S. R., 298), the court said:

“The plaintiff had notice of the character and legal effect of the decree of condemnation when he purchased, and is therefore presumed to have known that if the alleged offender possessed no estate in the premises at the time of seizure nothing passed to the United States by the decree or to him by his purchase.”

The present case is stronger. The claimant is not left to constructive notice alone. The findings show conclusively that he had actual personal knowledge of every step in the proceedings. He was the United States district attorney who drew up, signed, and filed in the court the information for forfeiture. On his motion a default was entered against persons who had not made an appearance. On his motion, also, the case was set down for hearing, and he appeared for the libellants in the trial.

Moreover, the deeds themselves, which were given to him by the marshal, set forth explicitly that the sales were under and by virtue of the Confiscation Act; and that circumstance constitutes actual written notice of the fact to him and to all persons who should claim under those deeds.

Thus the claimant’s allegation that he bargained for and bought, and that the United States sold or intended to sell to him a fee-simple estate in the property, is not sustained by the findings of fact. On the contrary, it appears that he bought only an estate in the property for and during the natural life of Charles M. Conrad.

The learned counsel for the claimant made an exhaustive argument, supported by all the authorities on the subject, to show, by the common law as practiced in the several States, and especially by the law of Louisana, where these sales took place, that in the sale of real estate there arises an implied warranty of title, failing which the purchaser may recover back the purchase money paid by him.

We are not prepared to hold that such a warranty on the part of the United States is implied in a sale of real estate by vir - tue of a judicial decree under the Confiscation Act. We do not deem it necessary to review the decisions on the subject of warranty or to express any opinion upon this point, because, according to our view, if there were any warranty implied in this case it was at most a warranty of an estate for tbe life of Charles M. Conrad, and nothing more.

Unless, then, the claimant has shown that he was deprived of the possession, use, and enjoyment of the estate during the lifetime of Charles M. Conrad, or has otherwise suffered damages, there is no breach of warranty, even if it is implied and exists on the part of the United States, as was contended.

To support the allegation in his petition, that he has been deprived of his estate by an adjudication that it did not belong to his vendors at the time of sale, he produces and proves the record of proceedings in an action of ejectment brought against him in the circuit court, fifth circuit and district of Louisana, by Lawrence L. Conrad, son of Charles M. Conrad, who claimed to be sole owner of the land under a deed alleged to have been made, executed, and delivered to him by his father May 6, 1862, for a valuable consideration then passing between them. The plaintiff in that action also claimed of the defendant the sum of sixty thousand dollars for past rents and profits and six thousand dollars a year for rents and profits so long thereafter as said Waples should continue in possession of the premises.

When that case came on for trial in the circuit court in May, 1875, the plaintiff offered in evidence the deed from his father referred to in his petition, to which several objections were offered by the defendant, growing out of the connection of the parties with the rebellion at the time of the execution of the deed. The court sustained the objections, ruled the deed to be inadmissible, and judgment was given for the defendant.

Upon a writ of error the Supreme Court reversed the judgment of the circuit court March 25, 1878, and remanded the case for a new trial. (Conrad v. Waples, 96 U. S. R., 279.)

It is evident that this decision of the Supreme Court did not necessarily dispose of all objections to the title of the younger Conrad, which might be made successfully or unsuccessfully, when the deed should be admitted in evidence upon a new trial. The defendant in that action and the United States, if their rights and interest were to be affected, might still make any other objections and demand that they should be judicially determined.

The findings disclose, by the records of courts which were put in by the present claimant, the remarkable facts that, notwithstanding the deed to his son in 1862, the elder Conrad claimed title to tbe property until 1874; that after the sale of the estate under the decree of confiscation in the district court, he brought a writ of error in the circuit court to set aside the decree; that having been unsuccessful there, the case was taken to the Supreme Court on review, and by that court of last resort the decree of the circuit court was set aside and that of the district court was affirmed, thus establishing the validity of the forfeiture as against him and against whatever estate he had in the property. This final judgment of the Supreme Court was rendered May 4, 1874.

It was not until the 26th of the next month, June, 1874, after the efforts of the elder Conrad to avoid the decree of confiscation had been exhausted, that the younger Conrad instituted his action of ejectment, claiming a fee-simple title in himself to all the property under the deed of 1862. The plaintiff’s petition in that action was signed by “C. M. Conrad & Son,” as attorneys.

Dp to that time it does not appear that the younger Conrad had ever claimed the property under his deed.

After the order of the Supreme Court granting a new trial, the ease came to a final hearing in the circuit court May 22,1878. The elder Conrad had been dead three months. The estate for the life of Conrad, which had been conveyed to the defendant in that action, Mr. Waples, the present claimant, had come to an end; and he then had no right to hold possession of the property any longer under the conveyances made to him .by the marshal. He had, therefore, no further interest in resisting the claim of the younger Conrad to the estates, and there was no party to the case who had any pretense of title to the property at that time as against the demandant therein. The only interest which the present claimant had in making any further defense was to protect himself from judgment for damages for mesne profits. In that he was successful. The judgment of the court was in favor of the demandant for the property, with nominal damages only against the defendant.

The Dnited States were not parties to that action; were not notified of its pendency, and were not cited in to defend the title of the present claimant.

They could not have been compelled to become parties, since the Dnited States cannot be made defendants to actions except in this court, but they might have voluntarily defended the suit, and they certainly were entitled to notice and an opportunity to defend if the suit was to fix any fact as against them.

But if the United States were bound by such a judgment thus obtained, they would still be liable under their supposed warranty only to the extent to which the claimant shows that he was injured by the judgment.

The findings show that he suffered nothing by the judgment. He was not ousted of the possession, use, and enjoyment of the property until three months after his estate therein had terminated, and no damages for rents and profits during the time of his occupancy have been awarded against him. If it be claimed that he might be still liable for rents and profits in an independent action, we apprehend that, as between the younger Conrad and Waples, the entire claim for mesne profits has been adjudicated by the verdict of the jury and the judgment of court for nominal damages. That claim was put in issue and tried in the action of ejectment.

The counsel for the claimant, while pressing the case upon the ground of an implied covenant of warranty peculiar to the law of Louisiana, have also rested it upon a more general principle. They have argued that it was money paid in mutual mistake of fact for something which both parties supposed to exist, but which really did not exist, and that their client may sue for and recover back the purchase money so paid as money held to his use by the defendants.

Whether the case does come within the principle established by the Supreme Court in Allen v. Hammond (11 Peters, 63), where it is held that if a life estate in land be sold, and at the time of the sale the estate is terminated by the death of the person in whom the right vested, a court of equity would rescind the purchase, and whether it comes within the decision of the Supreme Court of New York in Gardiner v. The Mayor (26 Barb., 423) it is not necessary for us to determine.

If this case could be maintained upon the principles of those cases and others like them; if a person who purchased a life estate (as this claimant must be held to have done), and who was put in possession thereof by the vendor, and who continued in possession during the continuance of the life estate, though subjected to litigation concerning his title — if he can come into court and recover back the whole of the purchase money on the ground that he paid it in mutual mistake of fact, and that the defendant, in equity and good conscience, ought not to retain it (upon which point we express no opinion), it is, nevertheless, manifest that such a claimant must establish at the very threshold of his case the fact that the life estate did not exist.

It is likewise manifest that this fundamental fact is one upon which the defendants have the right to join issue, and that there can be no issue in the case which they will have a greater interest in contesting and disproving.

No such right has been accorded to the defendants by the claimant in the present case; for he relies upon a judgment recovered by a third person against himself as being obligatory upon the defendants here.

We do not so regard it, and are of the opinion that the judgment does not establish the alleged fact of there being at the time of the sale no estate or interest in the property vested in Charles M. Conrad.

To recapitulate. The claimant’s case, stated concisely, is this: The defendants bargained, sold, and conveyed to the claimant an estate in certain lands, which, in legal effect, was an estate for the life of Charles M. Conrad. The claimant entered into immediate possession of the property, and held, used, and enjoyed it for thirteen years, and until the term of the estate sold to him terminated by the death of the said Conrad and for three months beyond that time. Nine years after the claimant took possession of the estate the son of said Conrad brought an action against. the claimant to recover possession of the property on the ground of prior title, and in that action, after the termination of the claimant’s estate, he recovered judgment for possession and for nominal damages.

If, upon these facts, it be held that a fatal defect existed in the title of the estate conveyed to the claimant, he has not shown that he has suffered injury thereby beyond the judgment against him for nominal damages, and that is damnum absque injuria, for which he is not entitled to a judgment in this court.

The judgment of the court is that the claimant’s petition be dismissed.  