
    MRS. MERIWETHER’S CASE.
    Elizabeth A. Meriwether and Minor, her Husband, v. The United States.
    
      On the. Proofs.
    
    
      A husband conveys to his wife real property in Tennessee. It is in the possession of his tenants, holding under previous leases. After the capture of Memphis in 1862, the Quartermaster Department seizes the property as abondoned, collects the rents, and pays them into the Treasury. The wife brings suit to recover them. Her husband joins as co-claimant.
    
    I. Tlio whole "body of the common law on the subject of the domestic relation, and especially of baron and feme, is the primary law of Tennessee.
    II. Though there he no statute in Tennessee authorizing the wife to hold a separate estate and to sue and he sued in regard to it as a feme sole, yet in equity there she may take property, real or personal, with or without the intervention of a trustee, and directly Horn her husband as from a third person.
    III. It was the purpose of the Abandoned or captured property Act (12 Stat. L., 820) to bring before the court the person entitled to the fund; and a person entitled to the fund or a portion of the fund is a proper claimant under the statute, whether his title be legal or equitable.
    
      IV. In a suit under tlie Abandoned or captured property Act (12 Stat. L., 820) tlie technical rule of tlie common law will not defeat tlie equitable title of a feme-covert to captured property tlie proceeds whereof are in tlie Treasury. If she was entitled in equity to hold the property, slio may recover the fund derived from it, and he deemed the owner within the true intent of the statute.
    V. When a wife has a right to property which she can assert in a court of equity, and with its assistance maintain possession against all the world, she must be regarded in an action at law, where her title is collaterally brought in question, as the legal owner. .
    
      The Reporters’ statement of tbe case:
    The following facts were found by tlie court:
    I. On the 10th March, 1862, the claimant, Minor Meriwether, was seized and in possession by his tenants of the property mentioned and described in the petition. On that day he executed an instrument in writing, or deed-poll, to the claimant, Elizabeth A. Meriwether, then his wife, living with him in coverture. The property described in the petition is a portion of that described in the deed. Neither livery of seizin of the property conveyed nor delivery of the deed is shown, except so far as the same may be implied by his acknowledgment of the deed and his delivering it for registration to the register of the county of Shelby. The deed, and likewise the proof of acknowledgment and certificate of registration, were in the following words:
    
      u Being desirous to provide for the comfortable support of my wife and children, and the liberal education of the latter, I hereby give and convey to my wife, Lizzie Avery Meriwether, all the following-described property, viz: One lot of ground, containing 4^- acres, more or less, lying east of Memphis, adjoining the lot upon which W. B. Waldron now resides, known as lot Noi 6 of the Harvey subdivision of a part of the Bice grant, being the same which I purchased of A. Fike and Elizabeth Fike on 24 October, 1853, and more particularly described in their deed to me, recorded in the register’s office of Shelby County, Tennessee, in book 15, pages 94 & 95, on 7th November, 1853one lot of ground, containing _4^% acres, more or less, on Kerr avenue, south of Memphis, known as lot No. 2 of Stewart and Latham subdivision, being the same which I purchased of Louis Selby, on 27 April, 1860, and more particularly described in his deed to me, recorded in the register’s office of Shelby County, in book 41, part 2d, page 550, on 7th May, 1860; one lot of ground fronting 69 feet on Jefferson street, Memphis; on’ fronting 74 feet on Second street, known as part of lot 258 on the plan of the city of Memphis, being the same which I purchased of I. P. Oaratliers, on the 9th April, 1859, and more particularly described in his deed to me, recorded in the register’s office of Shelby County, in book 37, pages 492 & 493, on the 10th May, 1859 ; my half interest in one lot of ground fronting 39| feet on Jefferson street, and fronting 74 feet on Second alley, known as part of lot 258 on the plan of the city of Memphis, being the same purchased by A. M. Clayton and myself of Charles Jones, on 13 December, 1859, and more particularly described in Jones’ deed to us, recorded in the register’s office of Shelby County, in book 40, part first, pages 380 & 381, 'oil 21st December, 1859 ; one lot of ground on the north side of Union street, Memphis, Avkich I purchased of S. H. Lamb, Estell Lamb, and Win. T. Avery, trustee, on the 10th March, 1857, being more particularly described in their deed to me, recorded in the register’s office of Shelby County, in book 28, pages 101, 102, & 103, on 25th March, 1857; one lot of ground on Union street, Memphis, which I purchased of Wm. Farris on 23rd March, 1857, being-more particularly described in his deed to me, recorded in the register's office of Shelby County, in book 28, pages 181, 182, & 183, on 2d April, 1857; one lot of ground, being a part of old Union street, Memphis, which I purchased of S. H. Lamb on the 10th March, 1857, and more particularly described in a deed made by the mayor aldermen of Memphis to S. H. Lamb on 24th July, 1855, and recorded in the register’s office of Selby County, in book 23, page 123, on 27th February, 1856. All the above-described seveu pieces of ground are in Shelby County, Tennessee. I also give and hereby convey to my wife, Lizzie Avery Meriwether, the following-named negroes, viz : One negro man named Henson, light-black color, aged about 20 years; one negro woman named Louise, light-black color, aged about 18 years; one negro woman named Eose, black color, aged about 20 years; one negro child of woman Eose, aged about four months. All the above-described land and negroes I give to my wife, Lizzie Avery Meriwether, with the power to sell and convey, devise, bequeath, or otherwise dispose of the property according to her own judgment and discretion in the same unrestricted maimer that I myself could do. But I require as a condition of this gift that my wife shall pay at its maturity my note given to my brother, Owen Meriwether, for sixty-two hundred dollars ($6,200), due> 3d July, 1865, with six per cent, interest per annum from 3d July, 1860. And if 1113- wife should die intestate, then all this properly, with its increase or its proceeds and reinvestments, if she shall have disposed of it, shall revert to me; or, if I am dead, it shall descend to our children ; and if they be dead also, leaving no child or children, then 1113' brothers shall inherit it.
    
      "Witness m3' hand this 10th March, 1862.
    “ MINOE MEE1WETHEE. [seal.]
    
      " Witnesses:
    “S. H. LAMB.
    “Estella Lamb.
    
      “ State of Tennessee,
    “ County of Shelby:
    
    “ Personally appeared before me, John P. Trezevant, clerk of the county court of Shelby County aforesaid, S. H. Lamb and Estelle Lamb, subscribing witnesses to the within and hereto-attached deed, who, being’ first sworn, deposed and said that they are acquainted with Minor Meriwether, the bargainer, and that he acknowledged the same in their presence to be his act and deed upon or about the day it bears date.
    “ Witness my hand at office this 11th day of March, 1802.
    “ JOHN P. TREZEVANT, Olerlc.
    
    “State of Tennessee,
    “ Shelby Gounty:
    
    “ This deed was filed in my office for registration on the 11th day of March, 1862, at 9;]- o’clock a. m., and so noted in notebook No. 5, page 63, and was duly recorded on the 20th day of the same month.
    “IRA W. KINO, Register.”
    II. Shortly after the capture of Memphis, in 1862, the military forces seized and took possession of the premises described in the petition. Oapt. A. R. Eddy, an officer of the Quartermaster’s Department, collected between the 1st September, 1863, and the 30th September, 1861, from the tenants remaining in partial occupancy, under previous leases from the claimant, Minor Meri-wether, rents amounting to $2,166.71. Subsequently, W. W. Orme, a supervising special-agent of the Treasury Department, likewise collected rents amounting to $1,329.55. All of the rents so collected, amounting in the aggregate to $3,496.26, have been paid] into the Treasury and passed to the credit of the abandoned or captured property fund.
    (And the court, at the claimant’s request, found the followdng additional fact:)
    ^ III. That, prior to the date of the deed of Minor Meriwether to his wife Elizabeth A. Meriwether, he had made a lease of part of his property on Union street, in Memphis, to William Jack, for one year from 1st November, 1861, and which lease had expired airterior to the date; thence rents accrued which were paid into the Treasury; that subsequent to the seizure of the property by United States authorities, he, William Jack, paid rent, on the same property for one year- from and after August I, 1862, x>aying the rent to a quartermaster of the United States, amounting to $240, but which it does not appear were paid into tbe Treasury, and all the other property described in the deed was either occupied by United States agents or officers, or by them rented out to others by the officers of the United States.
    
      2b\ H. H. Willard and Mr. F. P. Stanton for the claimants.
    
      2ír. W. H. Bradley (with whom was the Assistant Attorney-General) for the defendants :
    The claimant cannot recover, having failed to prove ownership of said property.
    1. The Supreme Court of Tennessee, in 1812, declared the whole body of the common law on the subject of the domestic relations, and especially in the relation of “ liaron and feme,” to be in force in that State, except as modified by statute. (MeGorry v. King, 3 Hump., 267.) It does not appear that this doctrine has since been overruled.
    The position taken by the claimant, that the Federal courts adopt the local law, as ascertained by the decisions of the State courts, when those decisions are based on the statutes of the State or form a part of the unwritten law of the State, is not questioned. But the defendants contend that where there is no governing statute, and the unwritten law of the State is not fully settled by a series of adjudications, and the rights of parties are to be determined by the application of common-law and equity rules affecting real property, the Federal com'ts are not bound by the decisions of the State tribunals. (Neves v. Scott et al., 13 How., 268 j Chicago Oity v. Robbins, 2 Black, 418.)
    There is no statute of the State of Tennessee authorizing the husband to convey property directly to the wife; nor have the courts of Tennessee ever held a direct conveyance of real property from husband to wife to be valid within that State. They have held a voluntary conveyance of real property from husband to wife good in equity, where a trustee intervened, as in Martin v. Oliver (9 Hump., 561), but have never gone so far as ot sustain a direct conveyance.
    In Powell v. Powell (9 Hump., 477), relied on by the claimant, the sole question presented by the facts for the determination of the court was as to the validity of a direct conveyance of certain slaves for a valuable consideration from husband to wife. By the laws of Tennessee slaves are declared to be personal property. So Goodrich v. Bryant (5 Sneed, 325), Bayless v. Mean (1 Cold., 96), and Karris v. Union Bank of Tennessee (1 Cold., 152), also cited by the claimant, do not bear upon the case, the subject-matter in litigation being personal and not real property. Furthermore, in Bayless v. Elcan the property was transferred to Bayless to hold in trust for the separate use of his wife, and so in Harris v. The Union Bank a sum of money was paid to the husband to be invested in a negro slave to be the separate and absolute property of the wife.
    The law governing transfers of real property between husband and wife not having been settled either by statute or the local courts of Tennessee, the case in point must be determined by the application of the common-law rules affecting the marital relation.
    The deed under which the claimant attempts to prove title being a conveyance made directly between husband and wife, is void at law. (2 Kent’s Com., 129; Clancy’s Rights of Women, ch. 1.) Nor is it good in equity without the intervention of a trustee or a valuable consideration. A voluntary conveyance void at law will not be enforced in equity. (Brice v. Brice, 8 Eng. L. & E., 271; 44 Beav., 598; Meios v. Mews, 21 Eng. L. & E., 556; 15 Beav., 529; Fowler v. Trefain, 16 Ohio, 493; Fllison v. JGlli-son, 1 Lead. Cas. in Eq., 192.)
   Nott, J.,

delivered the opinion of the court:

This is a suit under the Abandoned or captured property Act. The defendants are trustees of a fund in the Treasury derived from certain realty in the city of Memphis. The beneficiary under the act is the person who has a “right of the proceeds ” (§ 3). The claimants are husband and wife, but the wife sets uj> a title to the proceeds, and the husband, vdio merely joins in the suit pursuant to a rule of the court, concedes that she is the person in whom is the right. Undoubtedly, one or the other of these claimants should recover, and undoubtedly a judgment against either claimant would bar him or her from hereafter setting up ?my claim upon the fund; but the defendants insist that the husband, who seeks nothing by the suit, is in fact the true beneficiary under the statute, and that the wife, wrho asserts a title from him, has no legal right to the fund.

The point upon which the legal question of the case turns is a deed of conveyance made in 1862, whereby the husband conveyed directly to tbe wife, in her own right, the real property from which the fund in suit was subsequently derived. The property was then in the actual occupancy of tenants holding under previous leases from the husband, and there is no evidence (other than the presumption, arising' from the delivery of the deed) to show that the wife acquired actual possession before the seizure of the property by the military forces of the United States. Her right to recover rests, therefore, entirely upon her deed.

The courts of Tennessee early declared “the tohole body of the common lato on the subject of the domestic relations, and especially in the relation of baron and femme,” to be the primary law of that State (McCrary v. King, 3 Hump., 267), and no statute has been found whipli authorizes a direct conveyance from husband to wife. Considered as a question of law, we fully agree in the soundness of every position taken by the learned counsel for the defendants in his written argument $ such a deed would be void at the common law; there is no governing statute, and the unwritten law of the State has not been settled by such a series of adjudications as would bind the Federal courts.

But the courts of Tennessee, nevertheless, have gone to the utmost limit in upholding in equity conveyances made to the Avife. On the one hand, there is no statute authorizing her to hold a separate estate and to sue or be sued in regard to it as a feme sole; on the other hand, it may be taken as the unwritten law of the State that in equity she may take property, real or personal, with or without the intervention of a trustee, and directly from her husband as from a third person. We are satisfied, after an examination of the Tennessee decisions, that this is one of those anomalous instances in common-law jurisprudence where the success of the party depends upon the nature of the tribunal in which she happens to be; in other words, that the deed here would be held by the courts of Tennessee to be Aroid at law and valid in equity.

If the husband had come into court as the trustee at law of the wife, averring that the legal title to the property AAras in himself, but that she Avas in equity entitled to these proceeds, and had sought as such trustee to recover to her use, there would have been little doubt, we think, of his right to have judgment. If he had come into court seeking to recover to his own use, ancl the defendants had set up this deed to defeat his claim, it is probable that ive should have held that he was not the person having a right to the fund within the meaning- of the-statute. If judgment, nevertheless, had been rendered in his favor, it is well-nigh certain that a court of equity in Tennessee would have interposed on the application of the wife and have enjoined him from disposing of the fund and compelled him to pay it over to her. The resulting questions are whether such circuity of action is absolutely necessary, and whether this court, in the disposition of this fund, cannot decree the fund to the person having the right?

It was the purpose of the Abandoned or captured property Act to bring- before the court the person entitled to the fund. The statute not only exacted of the claimant proof that he was the owner of the captured property, but also of his “right to the proceeds.” The General Amnesty Proclamation, 25th December, 1868, practically relieved most if not all claimants from making proof of loyalty, but the statute, nevertheless, must be interpreted as at the time when it was enacted. Thus interpreted, it is universally conceded that the intent was that this fund in the Treasury should not go to persons guilty of having given aid or comfort to the rebellion. It is equally clear that if a loyal person, having a legal but not an equitable title to the captured property, could have maintained a suit and recovered a judgment, but could then have been compelled by a court of equity in Tennessee to pay the money over to a disloyal person having the equitable title, the primary purpose of the statute, in declaring the Government a trustee for only loyal owners, would have been evaded.

Accordingly, it was held by this court in Stoddart’s Case (6 C Cls. R., 340) that where property belonging to a trust estate was captured, the trustees who brought suit for the proceeds need not make proof of their own loyalty, for their legal estate is but a device of the law to protect the rights of others, but must make proof as to the nature and interests of the trust estate and as to the loyalty of the beneficiaries entitled to the proceeds. This conclusion of the court was based upon the well-known rule that in equity it is the cestui que trust, and not the trustee, who is to be regarded as the owner.

It is truei that that decision was rendered before .the pardon and amnesty cases were decided by the Supreme Court, and more especially before tlie ease of Carroll (7 C. Cls. R., 255), where it was held that “ the ownership to be proved is that which existed at the time of capture,” and that the loyalty to be proved is that of the administratrix, in whom the title then was, and not that of the decedent, who by his death had transmitted that title before capture. It is also true that the Supreme Court there alludes to the fact that an administrator claims only in a representative capacity, and refers to the abstract reasonableness of investigating the loyalty of the creditors and dis-tributees of such an estate, who, in-fact, will receive the proceeds, adding, however, that “such an investigation might be endless,” “ and could not have been contemplated by the legislature.” But in the more recent case of Villalonga (10 C. Cls. R., 22), where a factor in possession at the time of capture, with a lien for his advances, sought to recover the whole of the proceeds to the use of himself and his principal, the Supreme Ooiut followed the reasoning of this court in Stoddart’s Case, and said:

“Plainly, it was the intention of Congress, manifested in the statute, that no person should bo permitted to recover out of the Treasury any of tlie proceeds of sale of-the property captured or abandoned except those who had given no aid or comfort to the rebellion. But if a factor, who lias made advances, no matter how small, may recover tlie entire proceeds of a consignment made to him — not only what he has advanced, but the share of his principal — the intention of the law may be wholly defeated. He may have received consignments from persons most active in promoting the rebellion and he may have advanced only one dollar on each bale of cotton consigned. If, now, he can recover the entire net proceeds of the sale of such cotton paid into the Treasury, his consignors through him, using him as a cover, escape entirely from the operation of the provision of the statute that no one should have a standing in the Court of Claims who has given aid and comfort to the rebellion. A construction of the law which admits of such a consequence cannot be correct. The intention of Congress is not thus to be evaded.”

In other woi’ds, the Supreme Court, in Villalonga’s Case, regarded the person who was entitled to the fund, or to a portion of the fund, as a proper claimant under the statute, and treated it as immaterial that his title to the captured property was but an equitable title grounded on a factor’s lien for his advances, with possession of the goods for his security. The case was remanded to this court with instructions to ascertain the extent of the factor’s interest in the proceeds and render judgment accordingly ¿ and it seems clear, from the opinion of the court, that the special property of the factor and the general property of the consignor constituted each person an owner in the thing captured within the true intent of the statute; the factor (having the higher equity) to the full extent of his interest in the fund and the consignor to the residue.

■ Analogous cases also lead to the conclusion that when a wife has a right t¡o property which she can assert in a court of equity, and, with the assistance of such a court, can maintain possession against all the world, she must be regarded, in an action at law where her title is collaterally brought in question, as the legal owner; and it is immaterial whether her title was legal or equitable, so long as it secured to her the jus Msponendi — the right to dispose of or enjoy the property. A single illustration will suffice:

A conveyance of certain slaves was made by a husband’ to his wife in the District of Columbia, where the common law then prevailed, for a consideration which would have been deemed meritorious by a court of equity. The wife gave to the slaves a deed of manumission, and then died. After her death the husband seized them, and they brought an action to establish their freedom. On the trial, the husband requested the court to instruct the jury that the direct conveyance of the slaves from husband to wife without the intervention of a trustee was void, and that the wife was incapable of contracting directly with her husband in regard to them. In substance, the request was that the court charge the jury that as the wife could not take the legal title direct from her husband, therefore she did not become the owner of the slaves j just as it is here contended that because the wife could not take the legal title direct from her husband, therefore she did not become the owner of the captured property. The case was reviewed by the Supreme Court upon a bill of exceptions, and there the inability of the wife to contract or to take any interest from her husband without the intervention of a trustee was argued upon the restraints imposed upon women by the common law during coverture.” But the Supreme Court refused (in its own language)11 to take so narrow a view of the case.” 11 Every feature of the agreement,” said the court, “ is an appeal to have it tested by those principles of equity which have been applied to maintain a separate interest in women acquired from tbeir husbands during coverture, ’whether the same were made by the intervention of trustees or not, when the transfer was fairly made upon a meritorious or valuable consideration.” And the court held that the transfer “ passed the property as fully to the wife as if the husband had conveyed it to a third person,”' and that “ in regard to that property” she whs “to be considered as a feme soleP (Wallingsford v. Allen, 10 Peters, 583.)

Between this case and the one "how before us no definite distinction can be drawn. The wife’s title was acquired when the common law prevailed; it was taken directly from the husband without the intervention of a trustee; the validity of her deed of manumission depended upon her being the owner of the slaves; her title to them was strictly an equitable one, and it was held sufficient to constitute her the owner as effectually as if she had been a feme sole. Therefore, upon both reason and authority, we feel warranted in holding that the technical rule of the common law should not defeat the equitable title of a feme covert in captoed property the proceeds whereof are in the Treasury; and that she who was entitled in equity to hold the property is entitled in this court to recover the fund derived from it, and must be deemed the “ owner ” within the true intent of the statute.

The judgment of the court is that the claimant, Elizabeth A. Meriwether, recover of the defendants the sum of $3,496.26, and that the petition of the claimant, Minor Meriwether, be dismissed.  