
    TAYLOE’S CASE. The executors of B. Ogle Tayloe v. The United States.
    
      On the Proofs.
    
    
      A resident of Washington, and loyal citizen, is the owner of a cotton plantation in ■ Alabama. We has a son residing there, but the plantation is in charge and in possession of an overseer, who continues to manage it (luring the war, without communication with the oivner. He has authority to buy necessaries for the plantation, and sell smplus productions and stock, but not cotton, which always has been sold by the owner. In 1862, by instructions from the son, the overseer sells 150 bales of cotton to the Confederate States cotton agent, and receives in payment Confederate bonds. The cotton is never delivered ; the bonds are given by the agent to the son. At the close of the war, when the facts of the sale are communicated to the owner, he disapproves of the transaction. Tie defendants seize and sell the cotton, and after this the oivner dies. The son is one of the executors, who brings this suit, and his disloyalty is shown. The will of the owner shoios that the son has no title to any part of his personal estate, but that in its division this claim is allotted to the widow, being executrix of the testator.
    
    I. The overseer of a plantation in Alabama, having a general power before tbe war from the owner (a loyal citizen residing in Washington) to sell all products except cotton, has no implied authority, during the war, to sell cotton to the rebel government. And whore the owner, on learning at the close of hostilities of such a sale, promptly repudiates the transaction, and the cotton is afterward seized and sold and the proceeds paid into the Treasury, ho may recover under the Abandoned or captured property act. (12 Stat. L., p. 820.)
    II. Where property is oapturod before the death of a loyal owner, the executors of his estate may recover under the Abandoned or captured property aet, (12 Stat. L., p. 820,) though ono of them was guilty of giving aid and comfort to the rebellion. The rule laid down in Aubert’sCase, (30. Cls. K., p. 84,) that the only questions for the court to determine are the title and loyalty of the testator, and that the loyalty of neither the executors nor the distributees can be put in issue, re-affirmed.
    
    
      Messrs. Carlisle and. McPherson for the claimants :
    This is a claim under the act of March 12,1863, for the proceeds of cotton seized and sold as property captured by the Army engaged in suppressing the rebellion.
    The seizure of this cotton was made at two different times and places, and in two different lots. The first lot was seized in June, 1865, at Areola, Alabama; the second lot was seized at Mobile, in February, 1866.
    
      The evidence shows that B. O. Tayloe was a citizen, of the District of Columbia, and a resident here nearly all his life. He owned a plantation in Alabama, which was managed by his overseer, B>. A. Morgan. His son, E. T. Tayloe, owned a plantation also in Alabama, and resided there. Morgan had made crops of cotton in 1861 and 1862, of which he had stored seventy-two bales in the warehouse of A. Hatch, at Areola, to the order of B. O. Tayloe; the rest of this cotton, some two hundred bales, was on the plantation. All was the property of B. O. Tayloe.
    In this state of things, in 1863, Edward T. Tayloe thought proper to subscribe 150 bales of cotton to the confederate cotton loan, and at his request, Morgan, as his agent, gave a bill of sale to the Confederate cotton agent for 150 bales of B. O. Tayloe?s cotton, a part being in Hatch’s store at Areola, and a part on the plantation, promising to deliver them at Areola or Demopolis, to the order of the Confederate secretary of the treasury.
    In June, 1865, all the cotton in Hatch’s warehouse at Areola was seized by the Treasury agents, and among it were found 73 bales of B. O. Tayloe’s property.
    In February, 1866, Morgan shipped to Mobile 378 bales of cotton, the accumulation of crops made on the plantation, and out of this the Treasury agent, in June, 1866, seized 77 bales, not pretending that this cotton was that which had been sold to the Confederate agent, but enforcing against B. O. Tayloe, for the benefit of the United States, the obligation which E. T. Tayloe had entered into with the Confederate States.
    Of the 77 bales last seized, 19 were given to some person as informant, 8 were awarded to some persons in payment for claims, and 50 were sold in New York.
    Of the 73 bales taken at Areola, 57 were also sold in New York, and the residue are not accounted for, but supposed to have been given to the informant.
    The first question in the case is, whether the pretended sale to the Confederate States divested B. O. Tayloe of his property in the cotton, or whether he continued owner at the time of the seizure.
    A second question is whether, supposing some cotton to have been sold and never delivered, theTreasury agent can take other cotion of the claimant in lieu of it.
    The evidence is clear that all the cotton in controversy was B. O. Tayloe’s property at one time, and the question resolves itself into an iuquiry as to tbe effect of the acts which are claimed to have passed the property.
    The subscription was made by Morgan in the name of Edward T.. Tayloe, without any mention of B. O. Tayloe, and Edward T. Tayloe was to receive, and did receive, the consideration to bis own use.
    As to the cotton at Areola, the Confederacy had express notice that the cotton belonged to B. O. Tayloe, and that neither of the parties engaged in the sale pretended to act for him or for his benefit. The cotton was subject to his order, and neither Morgan nor E. T. Tayloe had either actual possession or right of possession. So far as their right to sell was concerned, they might as well have undertaken to sell his property in Washington.
    With regard to the 78 bales on the plantation, the case is equally clear. Morgan, as he testifies, never had authority from B. O. Tayloe to sell a single pound of cotton. Every one dealing with an agent is bound to inquire into his authority, and the burden of proof is on the purchaser claiming under a sale made by an agent, to prove the authority of that agent to sell. In this case, not only had the agent no authority, but he did not profess to have any, nor did he pretend to sell B. O. Tayloe’s right in the property, but only E. T. Tayloe’s right. He sold, not as B. O. Tayloe’s agent, but as E. T. Tayloe’s agent.
    There is' not a particle of evidence to show that the cotton taken at Mobile was the cotton which had been sold to the confederacy. The proof is that some cotton was sold and some cotton was seized, and unless this, court shall hold that the Government has a right by summary process to seize any of Mr. Tayloe’s property, real or personal, in Alabama or in Washington, to make good Morgan’s subscription, this seizure made at Mobile cannot be sustained.
    The loyalty of Mr. Tayloe is proved.
    The recovery being, in this proceeding, limited to the amount, of net proceeds of the cotton, the court cannot give judgment for more than $11,379 31, and we ask judgment for that amount as the proceeds of the 107 bales which reached New York, reserving the claim for value of the 43 bales disposed of by the Treasury Department for some other mode of redress.
    
      
      Mr. B. 8. Hale, special counsel of tbe Treasury, for tbe defendants.
   Casey, Cb. J.,

delivered tbe opinion of tbe court:

Tbe claimants’ testator was a loyal citizen of tbe District of Columbia, and wbo, during tbe entire period of tbe rebellion, resided in tbe city of Washington. He was before and during tbe war of tbe rebellion tbe owner of a cotton plantation in tbe State of Alabama. He also bad a son residing- there of tbe name of Edward Tbornton Tayloe. B. Ogle Tayloe’s plantation in Alabama was in charge and possession of an overseer, and be continued to manage it during the war without communication with tbe owner in any way. He bad authority to buy necessaries for tbe plantation, and sell such surplus productions or stock as were not needed, except cotton, which was sold by Mr. Tayloe himself or as he directed; and sometimes since the war by Edward Thornton Tayloe, his son.

In 1862, by instructions from Edward Thornton Tayloe, the overseer Morgan sold one hundred, and fifty bales of cotton belonging to B. O. Tayloe to tbe Confederate States cotton agent. He received in payment for it eight per cent, confederate bonds, which Morgan banded over to Edward Thornton Tayloe. It was not shown what the latter did with the bonds. Immediately after the suppression of the rebellion, when the fact of the sale was communicated to B. Ogle Tayloe, he disaffirmed tbe act 'of his agent and disapproved of the transaction. Seventy-two of these one hundred and fifty bales of this cotton so sold was stored at Areola, and remained there at tbe close of the rebellion. And fifty-seven of these bales were seized by the United States and shipped to New York and sold, and the net proceeds, amounting to $9,948 92, were paid into the Treasury. Another lot of cotton, consisting of fifty bales, which the claimants’ testator had sent to Mobile to be shipped on bis account, was seized by a Treasury agent and sold, and tbe net proceeds of which amounted to $1,430 39, and, together with tbe proceeds of the other lot, making an aggregate of $11,379 31.

The loyalty and adherence of B. Ogle Tayloe to the United States is fully proved by .such witnesses as General Schriver, Admiral Shubrick, and Judge Olin, wbo were bis associates and intimate acquaintances during tbe entire period of tbe rebellion. His ownership is proved and not disputed, and it is clearly shown that the proceeds, to the amount named, are in the Treasury of the United States.

The counsel for the United States resists a recovery in this case— ,

1. Because Edward Thornton Tayloe, one of the executors who brings this suit, ivas disloyal to the United States and cannot maintain this action.

2. That there can be no recovery for the 57 bales which had been sold to the Confederate cotton agent.

Mr. Tayloe died since the seizure and sale of the cotton.

The proof showed that Edward T. Tayloe resided in the insur-rectionary territory during the entire rebellion, and in sentiment,and act was disloyal to the United-States.

The will of Mr. Tayloe shows that E. T. Tayloe is not entitled to any part of his personal estate, and that, in a division of such estate, this claim has been allotted to the widow and executrix of the testator.

In the case of Helen Atiberffs Administrator, (3 C. Cls. R., p. 84,) we decided that the title and loyalty of the owner were only in issue; and that where he died before suit, or while it was pending, we could not inquire into the loyalty of the distributees. So in Mim’s Case, (4 C. Cls. R., p. 521,) we held that the loyalty of .the distributees was not in issue; that the administrator sued merely in a representative capacity. It is like the case of outlawry in England. There the outlawry does not prevent the party from suing as executor. These decisions rule this case so far as the objection goes toE. T. Tayloe maintaining this suit as executor on account of his disloyalty.

And we do not find anything in the proofs to satisfy us .that either Morgan, the overseer, or the son, had any agency, or power or right, to dispose of the testator’s property to the Confederate government in any way. So far as the- evidence shows, it was without any authority from him, either express or implied, that the sale was made. And, so soon as informed of it, he promptly disapproved and disaffirmed the act.

W e render a judgment for claimants for the sum of $11,379 31.  