
    CHARLES ALLEN DUNNINGTON ET AL. v. THE UNITED STATES.
    [No. 15783.
    Decided May 6, 1889.]
    
      On the Proofs.
    
    In 1863 realty in Washington is confiscated and sold. In 1872 it is taken for public use and the money paid into court. In 1873 the money is paid by order of the court to the person in possession under the confiscation proceedings. In 1887 the person whose estate was confiscated dies. His heirs no w seek to recover the appraised value of the property when taken for public use in 1872.
    I.The Aot 8th May, 1872 (17 Stat. L., 83), for the enlargement of the Capitol Grounds, was a special law, made by the Government for its own convenience, and did not necessarily discharge the constitutional obligation to make just compensation for private property taken for public use.
    II.For the Government to place compensation where the rightful owners may never be able to claim it, and where they cannot until it has passed beyond their reach, is not a fulfillment of the constitutional obligation.
    III. An order of the Supreme Court of the District of Columbia that money paid into court as compensation for private property taken for public use be paid to a third person does not bind the owner unless he was made a party, nor release the Government.
    IV. The Government in legal contemplation knew of confiscated property subsequently taken for public use, during the life of the ancestor, that there was an outstanding inchoate right in his heirs.
    V.The right of the heirs to confiscated property taken for public use during the life of the ancestor does not exist until his death; then they can affirm the condemnation proceedings and seek the appraised value of the property,
    VI. The jurisdiction of the court extends to a case where private property was taken for public use under legal proceedings, and the Government failed to make just compensation therefor to the rightful owner.
    VII. Where private property was taken for public use, and money appropriated to pay for it failed to reach the owner by a misdirection on the part of the Government for which the owner was not responsible, the facts constitute an implied contract, whereof the court has jurisdiction.
    
      
      The Beporters’ statement.of the case.
    The following are the facts as found by the court:
    I. Charles W. C. Dunnington, the ancestor of the claimants, was, on April 2, 1852, and subsequently up to June 29,1863, seized or well entitled in fee-simple of and to the lot No. 3, in square No. '688, on the plats of the squares and lots of the city of Wasliingtou; with the improvements, buildings, rights, privileges, appurtenances, and hereditaments, containing 5,572 square feet. Said Dunnington, the ancestor, died August 14, 1887, leaving as his sole heirs the claimants in this case, as set out in their petition.
    II. May 12, 1863, proceedings in rem, under the Confiscation Act of July 17,1862, and joint resolution of the same date (12 Stat. L., 589 and 627), were begun by the defendants in the ’ Supreme Court of the District of Columbia to confiscate said lotas the property of Dunnington, who was in rebellion against the United States. Under these proceedings the lot was duly condemned as enemy property and exposed to public sale, at which A. R. Shepherd became the purchaser and entered into possession.
    III. Under the Act of May 8,1872 (17 Stat.L., 83), proceedings were commenced in the Supreme Court of the District of Columbia, at the instance of the defendants, for the acquisition of land to enlarge the grounds around the Capitol, in which contemplated enlargement said lot No. 3 was included. June 11, 1872, the Secretary of the Interior informed the court that he was unable to obtain the titles to said lands by mutual agreement with the owners. Thereupon the court appointed commissioners “to make a just and equitable appraisement of the cash value of the several interests of each and every owner of the real estate and improvements necessary to be taken for public use, and make return to said court.” October 16, 1872, said commissioners filed their report, in which the cash value of said lot No. 3 is appraised at $1.50 a square foot, and the improvements thereon at $1,500. They also report that said lot contained 5,572 square feet, thus making the whole value of lot and improvements $9,858. On the same day said appraisement was approved and adopted by the court and the same was reported to the Secretary of the Interior.
    
      March 15, 1873, the court made the following order:
    
      11 Whereas it appears to the court that the owner or owners of each of said lots and parts of lots have failed and neglected to demand of the Secretary of the Interior the said appraised cash values of said lots aud parts of lots, respectively, for fifteen days after the appraisement thereof by this court, it is therefore ordered that leave be, and is hereby, granted to said relator to deposit the said appraised values of said lots and parts of lots in this court, to the credit of the owners thereof, respectively, subject to be drawn therefrom only upon an order of this court for payment to the parties entitled; and it is further ordered that upon the depositing of the money by the relator as hereinbefore provided, and notice thereof filed with the clerk of this court, possession of the property for which such deposit is made may be taken by the United States.”
    IY. March 31, 1873, in pursuance of the above order, a certificate of deposit for the amount of said appraisement was filed with the court by the Secretary of the Interior. Thereupon the defendants took possession of said lot, and the same is now embraced in the ornamental grounds about the Capitol.
    Y. April 3, 1873, upon the petition of the heirs of Martin King, deceased, the appraised value of said lot and improvements, amounting to $9,858, was, by order of the court, paid to William F. Mattingly, attorney of record for said heirs. Said King was the vendee, through several intermediate conveyances, of said A. E. Shepherd.
    YI. The cash value of said lot No. 3 on August 14,1887, was, at the rate of $2 a square foot, $11,144; improvements, $1,500, making together $12,644.
    
      Mr. George A. King (with whom was Mr. Charles W. Hornor) for the claimants:
    First. The construction put upon the United States Confiscation Act and amendment (12 Stat., 589, 627) led necessarily to the enunciation of the doctrine that whilst the proceedings were all in rem and not under the sovereign power, but under belligerent rights against a public enemy, the entire property of the rebel was confiscated, and he had, from the date of the judgment of confiscation, no right, title, or interest of any kind in the property. Even if the rebel went to the sale following on condemnation and bought and paid for the property, he acquired no title whatever. By the condemnation proceedings the property vested in the United States or the purchaser of the life estate, which life estate was all that could possibly be sold by the marshal in executing the writ of venditioni exponas,
    
    
      (Wallach v. Van Ristoich, 92 U. S. It., 202; French v. Wade, 102 U. S. B., 132. See, also, 11 Wall., 268; 11 ib., 259; 11 ib., 331; 15 ib., 590; 15 ib., 196; 9 ib., 103; 16 ib. 414; 9 ib., 339; 18 'ib., 156; 18 ib., 106; 20 ib., 92, 114, 115, 475 ; 91 U. S. B., 21, 474; 93 U. S. B., 274; 94 U. S. B.r711; 95 U. S. B., 149; 96 = U. S. B., 279; 98 U. S. B., 291; 99 U. S. B., 138; 108 U. S. B., 6; 110 U. S. B., 630; 111 U. S. B., 125; .113 U. S. B., 293.)
    From these authorities it is also clear that the fee simple or the pure ownership existing in petitioners’ ancestor was, during his life, not only divested out of him, but vested somewhere else, and that somewhere else has been determined, conditionally, to be either in the purchaser of the life estate or the United States. But it is manifest the United States could not sell under its venditioni exponas more than the life estate of the rebel; and as the whole property had been condemned and vested in the United States, there is no doubt the fee vested jpro tempore in them, to hold as a trustee for the heirs of the disloyal owner, and to be delivered by the United States to them upon his death.
    It is, therefore, not a matter of controversy that, up to the expropriation proceedings, the United States held the fee of the locus in quo, aad Shepherd and his assigns the life estate; and if at any time prior to the passage of the expropriation act the petitioners’ ancestor had died, eo instanti the right to the fee would have vested in his heirs. Le mort saisit le vif
    
    Second. Has the expropriation act affected in any way the rights of the heirs of their ancestor 1
    
    This is evidently matter of defense to the United States. They were our trustees, and from the date of the confiscation decree the holders for our benefit of the fee to our property. They should have delivered the fee without incumbrance of any kind to the petitioners on the day of our ancestors’ death, August 14,1887. Ever since that date they have been in default and in illegal possession of petitioners’ property.
    Under our first point it is established that whilst by the decree in the confiscation proceedings the whole ownership, interest, and fee held by our ancestor passed to the United States, nothing but his life estate could be sold by them. It is a legal impossibility that any juridical person other than the United States could have more than a life estate. Therefore, when, under their right of eminent domain, the United States instituted proceedings to make a locus publieus out of lot 3, in square 688, they held the fee in trust for petitioners, and their vendees and assigns held the life estate.
    Now, under their eminent domain proceedings, the United States treated these vendees and assigns apparently as full owners of the property, forgetful, perhaps, of their obligations as trustees; or, perhaps — which seems to us more probable — laboring under some misapjjrehensions, then universally prevalentin regard to the effect of the confiscation proceedings —paid the full appraisement and value of the property in full ownership to the holders of only the life estate title. But, under any and all circumstances, this payment affected not in any way the rights of petitioners. Their rights, it is true, were and became vested rights by the decree of confiscation. It had been sol-emny determined by this court, and over and over again, as the authorities hereinbefore cited show, that the confiscation act and its supplement could not and did not work corruption of blood or forfeiture, except during the life of the person offending; and hence the rights of the heirs to the property became perfect, certain, definite, fixed, private, absolute, notwithstanding they were vested and acquired rights in expectancy. It can not and will not be claimed that, by any act of theirs, they have parted with their property. Id quod nostrum, est,sine facto nostro, ad alium transferri non potest. Of course they were not bound to come into the expropriation proceedings. They had then no enforceable right against the United States. They were no proper parties. Nothing could be paid to them as long as their ancestor lived, and he had absolutely been divested of all possible interest by the decree of confiscation.
    But, besides this, the holder of the life estate was entitled to take and hold the full price of the full property, for the, simple reason that no appraisement can be made of a life estate with anything likelegal certainty, and the law does not even attempt it. The slightest reflection will show this. But even if this were practicable, with all the tables of mortality before the court and jury, there is a far easier and wiser method of solving the matter, and which, it is believed, is universally followed in such cases. The whole price is paid to the life-estate man, and he gives good and solvent security to have the same forthcoming . on the expiration of the life estate and ready for delivery to those entitled. (Sparhawlc v. Noble, 20 N. H., 317; True v. Freeman, 64 Me., 573. See, also, Lalleau Expropriation pour caused’ utilité publique, Brussells, 1855, p. 246, sec. 891 et seq.
    
    Third. Petitioners’ rights accrued and fell due and payable August 14,1887. On that date and subsequently the value of the lot, together with the value of the improvements, as proved, amounted, together, to $12,644. We were entitled to the property in kind as it existed on the day of the decree of confiscation. By the fault of the United States they disabled themselves from performance of delivery. The measure of damages is clearly the value of the property on the day the right accrued to the petitioners to demand its delivery, to wit, August 14, 1887. If there has been any increase in the value of the property petitioners are clearly entitled to it. The United States could not by possibility act legally in exercising their right of eminent domain whilst they were the' actual trustees, of petitioners. They could not be buyers and sellers at the same time. The position that they could act in this way seems entirely irreconcilable with the plainest principles of justice.
    Fourth. On the well-recognized presumption of law, that all improved property produces rents, revenues, and profits, we are entitleuto interest. (SeeBawle Gov. for Title, p. 300 and notes.)
    
      Mr. Heber J. May (with whom was Mr. Assistant Attorney-General Howard) for the defendants:
    ■ The material question that is presented for discussion arises under the proceedings of the Supreme Court of the District of Columbia in the enforcement of the Act of May 8, 1872 (17 Stat. L., 83).
    By reference to the records of the court it will be observed that the sections of the statute in regard to the confiscation, of the property described in claimants’ petition were strictly followed and complied with.
    The Secretary of the Interior could not effect a purchase of the Dunnington property because the deeds required in section 7 could not have been executed. This is apparent. The Secretary was therefore unable to obtain title to the property, and he invoked the power of the court under section 8. The court appointed appraisers, and the property was duly appraised under the rules, regulations, and mode prescribed by the court in accordance with the said section. The regularity of theproceedings of thecourt does notappear to be in question.
    Every requirement of the statute was complied with, and the United States, under the order of the court, took possession of the land. The money was deposited by order of the court for ■distribution to the owners or those entitled to receive it.
    We contend, therefore, that upon the deposit of the money, followed by the possession of the property, the United States became invested with the title, and that the distribution of the money deposited was a matter absolutely within the power and jurisdiction of the court, and with which the United States had nothing to do. If the court erred in the distribution of the funds, the United States is not responsible for it. Nor can this court review the proceedings of the Supreme Court of the District of Columbia for the purpose of correcting its errors, if any were made, in such distribution. If the appraised value of the .property has been erroneously distributed that controversy should have been judicially determined elsewhere than by petition in this court. The United States acquired a title to the land by law, and paid for it as directed, and there the matter ended.
    We do not think this is a claim within the jurisdiction of the court under section 1059 of the Eevised Statutes. In fact, the ■suit is brought under the Tuclcer Aet (24 Stat. L., 505). But the reason for claiming that jurisdiction exists under this actis not stated. There is really no distinctive reason for any such ■contention.
    The confiscation proceedings appear to have been complete. They were entirely distinct from the condemnation proceedings. In the first instance the property was sold subject to the prospective interests of the heirs of Dunnington. In the second instance the United States, by exercising the right of eminent domain, acquired title to the land and paid for it according to law, and placed the money where it could be obtained by the •owners upon an order of court having jurisdiction of the parties and the fund deposited. If the claimants had no day in court, that fact must be attributed to their own laches, for which the United States is not responsible. As a matter of fact, none of the owners of the condemned property had a day in court. The proceedings were in rem.
    
    
      Tbe liability of tbe Government to compensate tbe owner of tbe property for it ended with the deposit of the money in court. No new liability has been incurred. It is impossible to see bow tbe claimants can recover in this case. Their remedy is elsewhere, and not against the Government.
   Scofield, J.

delivered the opinion of the court:

Charles W. C. Dunnington, the ancestor of the claimants, was, on June 29, 1863, and for many years before, the owner, in fee-simple, of lot No. 3 of square 688 in Washington, D. C.

May 12,1863, proceedings in rein under the Confiscation Act ■of July 17, 1862, and joint resolution of the same date (12 Stat., 589 and 627) were begun by the defendants in the Supreme Court of the District of Columbia to confiscate said lot as the property of Dunnington, who was in rebellion against the United States. Under these proceedings the lot was duly condemned as enemy property and exposed to public sale, at which A. E. Shepherd became the purchaser and entered into possession.

Under the Act of May 8, 1872 (17 Stat., 83), enacted for,the purpose of enlarging the Capitol Grounds, this lot was condemned, at the instance of the defendants, by proceedings in said court, and taken for public use. By the further proceed- . ings in court the lot was appraised at $9,858, which turn was paid into court by the defendants, as provided in the act. Thereupon the defendants took possession of the lot, and it is now embraced in the ornamental grounds about the Capitol.

April 3, 1873, by order of the court, the purchase money so deposited was paid to the heirs of Martin King, deceased, who, by several intermediate conveyances, had succeeded to the title of Shepherd.

August 14,1887, the ancestor, Dunnington, died, leaving as heirs the present claimants.

‘It is conceded by counsel for the defendants that, under the construction put upon the Confiscation Acts by the Supreme Court, the estate acquired by Shepherd terminated at the death of Dunnington, and that the fee then devolved upon the claimants, or at least would have so devolved if the land.had not already been taken by the defendants through the proceedings in court and appropriated to public use. It is also conceded that the claimants have not, in fact, received any compensation therefor.

This suit is brought to recover the “just compensation” which the Constitution requires should be made to the owners of private property when t alien for public use.

It will scarcely be denied that justice requires that the land should be surrendered or its appraised value paid, to the claimants. In this suit they seek only “just compensation,” the recovery and payment of which, as the court understands it, confirms in the defendants the possession and title now claimed by them. Two objections are interposed to such recovery:

First. It is said the defendants have already discharged their constitutional obligation by depositing the compensation claimed with the court of the District, and that the order of the court directing the same to be paid to parties other than the claimants is an adjudication of ownership conclusive upon all parties claiming title.

The place and manner of deposit were designated in a special law, made by the defendants for their own convenience. The Constitution required the defendants to make “just compensation” to owners. It makes no difference to such owners through what channels or by what agency the compensation may be sent, provided it finally reaches the right party. Placing the compensation where the rightful owners may never be able to claim it, and where, as in this case, they could by no possibility hear of it until it had passed beyond their reach, is not a fulfillment of the constitutional obligation.

So far as the order of court is concerned it ought to be a satisfactory answer to say that the claimants were not parties to" it. If Dnnnington had died prior to these proceedings they might have been parties, to, and concluded by, them. As it was, they were neither summoned nor heard, and it was impossible that they should be, because at that time they had no legal existence. The court, even, was not advised, so far as the record shows, that any such claim existed or might ever arise. But, in legal contemplation, the defendants knew of it, for they were the originators of and parties to the confiscation proceedings, whereby the title of Dunuington was divested and hung up somewhere, possibly in the defendants as trustees, until by bis death it should devolve upon whoever should then be found to be bis heirs. (Wallach v. Van Riswick, 92 U. S. R., 202; Shields v. Schiff,, 124 U. S. R., 351.)

We are unable to see how, under such circumstances, the claimants’ right to compen'sation could be defeated, either by the deposit in the court or by any disposition of it which the court may have made. When they came into their title they had a right, by affirming so much of the condemnation proceedings as vests title in the defendants, to claim the appraised value.

The second objection is to the jurisdiction of the court. ■ That jurisdiction, by section 1069 of the Revised Statutes, extends to “ all claims founded upon any law of Congress or upon any regulation of an Executive Department, or upon any contract, express or implied. In the facts of this case all these elements of j urisdiction are to some extent combined. The defendants took private property for public use, and the Constitution enjoins them to make “just compensation.” The very taking imposes upon the defendants a duty from which alone a promise to do the only thing thatjustifi.es the taking may be implied. But there was also a law of Congress which undertook to discharge that duty. It directed that compensation should be made and prescribed a mode of ascertaining the. amount of it. It went further, and made an appropriation to meet it, and directed the Secretary of the Interior to pay it over. The amount was ascertained, the money drawn from the Treasury, and only failed of finally reaching the claimants by a misdirection in the transmission of it. For this misdirection the claimants were not, but the defendants were, responsible. These facts combined not only constitute an implied promise, but may be regarded as a continuing offer of settlement which the claimants accepted at the first possible opportunity. They attest at once both the liability of the defendants and the jurisdiction of the court.

This conclusion is sustained by more than one decision of the Supreme Court. The opinion of that court in the case of The United States v. The Great Falls Manufacturing Company (112 U. S. R., 645), appears to be fairly stated in the head-notes, which we quote as follows :

“ Where property to which the United States asserts no title is taken by their officers or agents, pursuant to an act of Congress, as private property for the public use, the Government is under an implied obligation to make just compensation to the owner.
11 Such an implication being consistent with the constitutional duty of the Government, as well as with common justice,, the owner’s claim for compensation is one arising out of implied contract, within the meaning of the statute defining the jurisdiction of the Court of Claims, although there may have been no formal proceedings for the condemnation of the property to public use.
“ The owner may waive any objection he might be entitled to make based upon the want of such formal proceedings, and, electing to regard the action of the Government as a taking under its sovereign right of eminent domain, may demand just, compensation for the property.”

This case is cited with approval in Hollister v. Benedict Manufacturing Company (113 U. S. R., 67.)

In the Great Falls Manufacturing Company v. The Attorney-General (124 U. S. R., 581) the question is again discussed and the same principles enunciated. '

Judgment will be entered for the claimants in the sum of $9,858.  