text:
The Secretary v. McGarrahan/Opinion of the Court

Land grants purchased of Mexican grantees or their assigns, in good faith and for a valuable consideration, where such grants have subsequently been rejected or where the lands so purchased have been excluded from the final survey of the grant, may be purchased of the United States by such prior purchasers, after the same are surveyed under existing laws, at the minimum price established by law, in cases where there is no valid adverse private right or title; and where such prior purchasers have used, improved, and continued in the actual possession of the premises according to the tenor of their original purchase, they first making proof of those facts as required in the seventh section of the act to quiet the title to such grants, under regulations to be prescribed by the Commissioner of the General Land Office, as provided in the same section of that act.

Annexed to that right, however, are three other conditions, one of which it becomes important to notice. They are in the form of provisos, and the one to be noticed is that the right to purchase, as given in the body of the section, 'shall not extend to lands containing mines of gold, silver, copper, or cinnabar.'

By the record it appears that the relator, on the fifth of October, 1858, addressed a communication to O. H. Browning, Secretary of the Interior, in which he represented that he, the relator, on the twenty-second of December, 1857, purchased of Vincente P. Gomez the rancho situated in California and known as Panoche Grande, and that the claim to the same had since been rejected by the decree of the supreme Court reversing the decree of the District Court confirming the claim, and prayed that he, by virtue of the provision contained in the seventh section of that act, might be allowed to purchase the same of the United States, supporting his alleged right to do so by the following representations:

The the land embraced in the claim was a Mexican grant; that he purchased it of the original donee in good faith and for a valuable consideration; that the land, since the claim was rejected, has been regularly surveyed under existing laws; that there is no valid adverse private right or title to the same, and that he has continued in the actual possession of the tract since the claim was rejected, as required by law; but he did not allege that the land did not contain mines of gold, silver, copper, or cinnabar, nor did he offer any other proof of the facts set forth than what is contained in the exhibits annexed to the communication.

Prior to the date of that paper, to wit, on the fourteenth of August preceding, the Secretary of the Interior addressed an official letter upon the subject to the Commissioner of the General Land Office, in which he adverted to the fact that a bill was pending in the Senate relating to the claim, and stated that in his judgment it would be highly improper for the department to do anything to affect the title to the land until Congress should dispose of the claim. Pursuant to that view he, at the same time, directed the commissioner to instruct the local officers to suspend action in all such cases until they should receive further orders. Correspondence ensued between the secretary and the counsel of the relator, but the secretary, on the twenty-eighth of November following, informed the counsel that he adhered to the views expressed in the directions which he gave to the Commissioner of the General Land Office.

Dissatisfied with the decision of the secretary, the relator, on the third of December, of the same year, presented a petition to the Supreme Court of this district, in which he prayed that a mandamus might issue directing 'O. H. Browning, Secretary of the Interior,' to issue or cause to be issued a patent for the land described in the petition, and for such other or further relief as may seem meet and proper. Service was duly made, and on the eighth of the same month a rule was issued commanding the secretary to show cause, on the third Monday of January following, why the writ of mandamus should not be issued as prayed in the petition. He appeared, as commanded, and pleaded that the court had no jurisdiction to grant the writ, for the following reasons: (1.) Because the subject-matter of the petition is purely of executive cognizance, resting in the judgment and discretion of executive officers in the ordinary discharge of their official duties. (2.) Because the subject-matter is one in which judgment and discretion are to be exercised. (3.) Because the issuing of patents for lands is, by the act of Congress, the duty of the President.

On the fifth of February following the parties filed a stipulation in the case, agreeing that the cause 'be submitted to the court upon briefs and arguments, and that the said court may render its judgment in vacation as of the present term and of the day of such submission.' Submitted, as aforesaid, the case was held under advisement until the eighth of July following, when the court, two justices signing the decree, determined that the prayer of the petition be granted, and that a writ of mandamus issue, directed to the said O. H. Browning, Secretary of the Interior, or to his successor in office, commanding him, upon payment of the sum therein specified, to issue or cause to be issued to the relator a patent from the United States of the tract of land described in his petition.

Four months before that judgment was rendered, the Secretary of the Interior, who was the party respondent in the litigation, resigned his office, and J. D. Cox, the present Secretary of the Interior, had not only been appointed his successor, but was in the regular discharge of all its duties.

Although none of these facts are disputed, still the record shows that the writ of mandamus was addressed to the predecessor of the present incumbent, or his successor in office, and that the writ, on the eighth of July in the same year, was served on the present secretary, who was not named in the writ, was never a party to the suit, and never had any notice of the proceedings. Judgment having been rendered without notice to the present secretary, and without a hearing on his part, or any opportunity to be heard, he sued out a writ of error and removed the cause into this court.

Founded, as the proceeding in this case is, upon a claim to land which has been three times under examination in this court before the present writ of error was sued out, it is deemed necessary and proper to advert to the views expressed by the court on those occasions in respect to the validity of the claim and the means adopted to procure its confirmation. Reference to the docket entries will show that the case was first presented here at the December Term, 1858, by the claimant, as an appeal not prosecuted; and it also appears that a copy of the record having been produced by him, and the certificate of the clerk that the appeal had been duly prayed and allowed, the case on his motion was docketed and dismissed, in conformity to the ninth rule of the court, for want of prosecution. Such a proceeding when bon a fide has the effect to vacate the appeal and leave the decree of the subordinate court in full force, and the docket entries also show that the mandate was issued in pursuance of that order, and that it was subsequently delivered to the assignee of the claimant.

Nothing further was done in the cause during that term, but at the succeeding term the Attorney-General filed a motion to rescind the decree of the preceding term dismissing the case, and to revoke the mandate, alleging for cause that the decree and mandate had both been procured by misrepresentations and fraud. Affidavits were filed by the Attorney-General showing that the cause was still pending in the District Court, that no appeal had been granted, that the cause, when the claimant made his motion to docket and dismiss it, was not legally before this court. Pending that motion three motions for mandamus were filed by the claimant: First, to compel the District Court to file the mandate and to execute their decree. Second, to compel the District Court to dismiss the application of the United States to open the decree and grant a new trial. Third, to compel the Surveyor-General to survey the land confirmed to the claimant by the decree of the District Court.

Both parties were heard, and the court overruled the several motions filed by the claimant, but granted the motion of the Attorney-General, upon the ground that the allegations of the motion were fully proved.

Attempts were subsequently made by the claimant to enjoin the clerk and district attorney from furnishing a certified copy of the record to enable the United States to appeal, but the injunction was refused, and the appeal was perfected and duly entered here; and the next step of the claimant was to file a motion to dismiss the appeal, alleging that the court had no jurisdiction of the case, but the court unanimously overruled the motion for the reasons expressed in the opinion.

Subsequently the cause was heard upon the merits, and the court held that the claim was invalid and fraudulent, and reversed the decree of the District Court, and remanded the cause, with directions to dismiss the petition.

Unless, therefore, the claim of the petitioner is brought within the terms of the act of Congress referred to in his petition he has no right whatever to a patent for the land in controversy.

Suppose everything which he alleges in his petition is true, still it does not bring his case within the act of Congress, as the petition does not allege that the land does not contain mines of gold, silver, copper, or cinnabar; and the record furnishes evidence tending strongly to the conclusion that such an averment, if made, could not be supported, as the statement of the land commissioner is that the land embraced in the claim does contain 'valuable quicksilver mines.'

Mere allegation, however, is not sufficient, but the condition is that the claimant shall make proof of the facts required under regulations to be provided by the Commissioner of the General Land Office. His application to be allowed to purchase the land was made to the Secretary of the Interior, and he was as much bound to prove that the land did not contain mines of the description mentioned as he was to show that his purchase of the donee of the tract was made in good faith and for a valuable consideration, as he was not entitled to a patent if the lands contained mines of gold, silver, copper, or cinnabar, any more than if he had made the purchase in bad faith and without consideration.

Argument to show that he did not bring his case within that condition is unnecessary, as the point is clear to a demonstration. He did allege that he purchased the lands in question of the donee in good faith and for a valuable consideration, but he offered no proof of the alleged fact, except what may be inferred from the deed annexed to the petition, bearing date December 22d, 1857, and which purports to have been executed by the original claimant.

Special reference is made in the petition to the deed of release given by the occupants of the land to the relator as supporting the allegation of good faith, but it is entitled to very little weight, if any, as it bears date six years subsequent to the alleged purchase of the grant.

Evidence was exhibited in the case tending to show that the lands were surveyed subsequent to the decree of the court rejecting the claim, but it is not proved that the present claimant thereafter continued in the actual possession of the land, nor that it was free from any adverse private right or title. Such allegations are set forth in the petition, but the record contains no proof to support the first allegation, and nothing to support the second, except what is derived from the statement of the Commissioner of the General Land Office, that no report of any individual adverse interests was found on the files of his office. Tested solely by the merits, therefore, it is quite clear that the application of the relator could not have been properly granted, as the proofs before the department were not sufficient to warrant a decision in his favor.

Adjudged invalid and fraudulent, as the claim had been by the unanimous decision of this court, it was quite proper that the secretary should require satisfactory proof that the case as presented came within the terms of the act of Congress relied on before consenting to give the claimant the benefit of its provision; and when it appeared that he petition addressed to him was deficient in allegation, and that the proofs were insufficient in all particulars, except, perhaps, one, he was entirely justified in rejecting the application.

Evidently the case, if examined upon the merits, was not made out by the claimant, but the more decisive objection to the judgment of the court below is that the case, from its very nature, is one which was exclusively within the jurisdiction of the executive officers of the government, because it was one requiring proofs, hearing, and decision, and involved the exercise of judicial judgment and discretion, and consequently was not one where the action of the Department of the Interior is subject to re-examination by the Supreme Court of this district.

Since the decision of this court in the case of McIntire v. Wood, it has been regarded as the settled law of the court that the Circuit Courts of the United States in the several States do not possess the power to issue writs of mandamus, except in cases in which it may be necessary to the exercise of their jurisdiction.

Authority to that effect might doubtless be given to those courts by an act of Congress; but the insuperable difficulty at present is, that neither the Judiciary Act nor any other act of Congress has conferred upon them any such power. Antecedent to the decision of this court in the case of Kendall v. The United States, grave doubts were entertained whether any court established by an act of Congress possessed any such jurisdiction; but the majority of this court came to the conclusion in that case, that the Circuit Court of this district might issue the writ of mandamus to an executive officer residing here, commanding him to perform a ministerial act required of him by law, and it is not denied that the court below possesses all the power in that behalf which the Circuit Court of the district possessed at that time. Subsequent decisions of this court have affirmed the same principle; but in all of the subsequent cases the principle is strictly limited to the enforcement of mere ministerial acts not involving the necessity of taking proofs, and it has never been extended to cases where controverted matters were to be judicially heard and decided by the officer to whom the writ is required to be addressed.

Though mandamus may sometimes lie against an executive officer to compel him to perform a mere ministerial act required of him by law, yet such an officer, to whom public duties are confided by law, is not subject to the control of the courts in the exercise of the judgment and discretion which the law reposes in him as part of his official functions.

Discussion of the principle, however, seems to be unnecessary, as all of the cases appear to affirm the same rule, that the writ cannot issue where discretion and judgment are to be exercised by the officer, and only in cases where the act required to be done is merely ministerial, and where the relator is without any other adequate remedy.

Even if it could be shown that the court below possessed the power to issue the writ in such a case, still it is clear that the judgment in this case would be erroneous, as the case upon the merits was not submitted to the court under the stipulation. Undoubtedly the appearance of the respondent was general, but he pleaded only to the jurisdiction of the court, and it appears that the question of jurisdiction was the only point argued and submitted for decision. But the court decided the whole case without proofs, and without any further hearing. Taking the record as it is exhibited, such certainly is the clear inference from it, and it is not suggested that it does not correctly represent what occurred. Assuming the record to be correct, comment upon the proceeding is unnecessary, as in the view of this court, it is clearly erroneous.

Several other objections are also taken to the proceedings by the Attorney-General, which are equally decisive that the judgment of the court below must be reversed, one or two of which will be briefly noticed.

Service was made upon O. H. Browning, Secretary of the Interior; but the fact is conceded, or not denied, that he had resigned and gone out of office four months before the decision of the court was announced. When he resigned, of course the suit abated, but the court gave judgment against him as if he were still in office, and decreed that the writ of mandamus should be directed to him and to his successor in the office. Complaint may well be made by that party that he no longer possesses the power to execute the commands of the writ, and the present secretary may well complain that he is adjudged to be in default though he never refused to allow the relator to purchase the land, and that the judgment was rendered against him without notice and without any opportunity to be heard.

Notice to the defendant, actual or constructive, is essential to the jurisdiction of all courts, and the better opinion is, that a judgment rendered without notice may be shown to be void, when brought collaterally before the court as evidence.

Patents for land are required to be signed by the President in person, or in his name by a secretary under his direction, and they are to be countersigned by the Recorder of the General Land Office.

Such patents cannot be issued and delivered to any party without the signature of the President, and no proceeding to compel either the Commissioner of the General Land Office or the Secretary of the Interior to issue such a patent can be sustained while that provision of law remains unrepealed.

Congress may so provide, and in that event it would be the duty of the secretary to carry the provision into effect; but the act of Congress referred to in the petition as the source of prower in this case gives the Secretary of the Interior no authority upon the subject. On the contrary, the express provision is, that the regulations for executing the law shall be provided by the Commissioner of the General Land Office, and the better opinion is, that the application to be allowed to purchase the land embraced in such rejected claim should be made to the Commissioner, and not to the Secretary of the Interior, as the right to purchase of the United States will never yest until the land is surveyed under existing laws.

It appears by the record in this case that a survey of some kind was presented to the secretary, but whether it was one made under existing laws or not is not sufficiently shown.

Viewed in any light, the Secretary of the Interior has no original cognizance of applications of this description. He may, perhaps, as the head of the department, exercise an appellate and supervisory power over the doings of the Commissioner, but the original application should have been made to the Commissioner of the General Land Office.

I agree to the judgment of the court on the ground set forth by this court in the case of Gaines v. Thompson, that the courts have no jurisdiction to control the actions of the departments in such cases.

I do not think that the merits of the present claim were before the court, and I decline to express any opinion upon it.

JUDGMENT REVERSED, and the cause remanded with directions to DISMISS THE PETITION.


text: Talk:The Secretary v. McGarrahan/Opinion of the Court

license: Creative Commons - Attribution Share-Alike - https://creativecommons.org/licenses/by-sa/4.0/


text:
Lynch v. Bernal

[Syllabus from pages 315-317 intentionally omitted]

ERROR to the Supreme Court of the State of California.

The case was ejectment to recover the possession of certain real property situated within the corporate limits of the city of San Francisco, as defined by its charter of 1851, the plaintiffs asserting title to the premises under a grant of the Mexican government confirmed by the tribunals of the United States. The case was commenced in a District Court of the State, and was tried by the court without the intervention of a jury by stipulation of the parties.

The court found as facts, that the plaintiffs (who are the widow and son of Jos e Cornelio Bernal, deceased), in March, 1853, presented a petition to the Board of Land Commissioners, created under the act of March 3d, 1851, to ascertain and settle private land claims in California, for the confirmation of a claim asserted by them to the premises in controversy; in which petition they averred that the premises were granted in 1834 by Figueroa, then Mexican governor of the Department of California, to said Jos e Cornelio Bernal; and that such proceedings were had that in 1854 the said claim was adjudged valid and confirmed by the board; and in 1856, on appeal, by the District Court of the United States. The court set forth in its findings the proceedings had before the board, and the District Court on appeal; and what it declared to be the evidence remaining of record with the clerk of the District Court with respect to the grant. That evidence stated that a grant was made by Governor Figueroa to Bernal, as alleged above, but the court found that according to that evidence no such grant was ever issued, differing in its finding in that respect from both the Board of Land Commissioners and the District Court of the United States.

From the decree confirming the claim of the District Court, the United States declined to prosecute an appeal to this court, and the decree thus became final.

In 1861 the tract confirmed was surveyed under the directions of the Surveyor-General of the United States, and the survey was subjected to the revision and correction of the District Court, under the act of Congress of June 14th, 1860. When made to conform to the directions of the court, the survey and the plat of it were approved, and its decree of approval was, on appeal, affirmed by this court. The approved survey and plat embraced the premises in controversy.

The defendants were in possession of the premises at the commencement of the action; and asserted that they possessed an older and superior title to the premises under the ordinance of the city of San Francisco, adopted in June, 1855, and the subsequent legislation of the State and of the United States respecting the same. Their claim arose in this wise. At the cession of California to the United States, and for many years previous thereto, San Francisco was a Mexican pueblo, asserting a claim to lands embracing its site and adjoining lands to the extent of four square leagues. The city of San Francisco, as successor of the Mexican pueblo, claimed these municipal lands, and presented her claim to the Board of Land Commissioners for confirmation. In December, 1854, the board confirmed the claim to a portion of the land, embracing the premises in controversy. The case was then appealed by the city to the District Court of the United States, and was afterwards transferred to the Circuit Court of the United States, under the act of Congress of July 1st, 1864. In May, 1865, the Circuit Court confirmed the claim to four square leagues, subject to the following deductions, namely: 'Such parcels of land as have been heretofore reserved or dedicated to public uses by the United States; and also such parcels of land as have been by grants from lawful authority vested in private proprietorship, and have been finally confirmed to parties claiming under said grants by the tribunals of the United States, or shall hereafter be finally confirmed to parties claiming thereunder by said tribunals in proceedings pending therein for that purpose, all of which said excepted parcels of land are included within the area of four square leagues, above mentioned (those described as confirmed), but are excluded from the confirmation to the city.' The claim thus confirmed by the decree of the Circuit Court, was also confirmed, with some modifications, by the act of Congress of March 8th, 1866.

Whilst this claim was pending before the District Court on appeal from the board for confirmation, viz., on the 20th of June, 1855, the common council of the city of San Francisco passed 'an ordinance for the settlement and quieting of the land titles in the city of San Francisco,' which is known in that city as the 'Van Ness ordinance,' after the name of its supposed author. By its second section the city relinquished and granted all the title and claim which she held to the lands within her corporate limits, as defined by the charter of 1851, with certain exceptions, to the parties in the actual possession thereof, by themselves or tenants, on or before the 1st of January, 1855, provided said possession was continued up to the time of the introduction of the ordinance into the common council, or if interrupted by an intruder or trespasser, had been or might be recovered by legal proceedings.

In March, 1858, the legislature of the State ratified and confirmed the ordinance, and in July, 1864, Congress passed an act by which all the right and title of the United States to the lands were granted to the city of San Francisco, for the uses specified in the ordinance. The party through whom the defendants claim was in the actual possession of the premises in controversy at the time designated in the ordinance, and also on the passage of the confirmatory act of the legislature, and therefore acquired whatever right or title the city then possessed.

The District Court found as conclusions of law that the defendants were estopped by the final decree of confirmation, and the approval survey, from questioning the plaintiffs' title to the premises, and gave judgment for the plaintiffs for the possession of the premises and $500 damages for their use and occupation. On appeal the judgment was affirmed by the Supreme Court of the State; and the case was brought here under the 25th section of the Judiciary Act.

Messrs. Ashton and G. H. Williams, for the plaintiffs in error; Mr. E. L. Goold, contra.

Mr. Justice FIELD delivered the opinion of the court.

title: Lynch v. Bernal


text: Talk:Lynch v. Bernal

title: Talk:Lynch v. Bernal


text:
Lynch v. Bernal/Opinion of the Court

The act of June 14th, 1860, gives to a survey and plat of land claimed under a confirmed Mexican grant, when approved by the District Court, the effect and validity of a patent of the United States. It so declares in express terms. It is therefore upon the decree of confirmation, and the approved survey and plat, that the Bernals rely to recover in the present action.

To meet the case thus presented the defendants contend, 1st. That the Board of Land Commissioners had no jurisdiction to consider the claim of the plaintiffs under the grant of Figueroa, and as a consequence, that the action of the District Court, in hearing the appeal from the board, and in revising and approving the survey of the claim, was without authority and void; and 2d. That if the board had such jurisdiction, the defendants possess an older and superior title to the premises under the ordinance of the city of San Francisco, adopted in June, 1855, and the subsequent legislation of the State and of the United States respecting the same.

The objection to the jurisdiction of the board arises from the fact that the premises granted consist of a lot within the limits of the pueblo or town of San Francisco as it existed at the cession of California to the United States. At that date San Francisco, as such pueblo, possessed an equitable claim to lands within the limits of four square leagues, to be assigned and measured off from the northern portion of the peninsula upon which the town is situated. They city of San Francisco succeeded to such interest, and her authorities presented the claim to the Board of Land Commissioners for confirmation; and the defendants insist that the claim of the Bernals under the grant of Figueroa should have been presented in the name of those authorities, and could in no other way have been brought under the jurisdiction of the board.

This position is founded upon the language of the 14th section of the act of Congress, but is not, in our opinion, supported by its meaning. A previous section of the act requires every person claiming lands in California by virtue of any right or title derived from the Spanish or Mexican government, to present his claim to the commissioners for examination. The 14th section qualifies this general language, and declares that the provisions of the act shall not extend to lots held under grants from any corporation or town, to which lands have been granted for the establishment of a town by the Spanish or Mexican government; nor 'to any city or town, or village lot, which city, town, or village existed on the 7th of July, 1846;' and provides that the claims for such lots shall be presented by the corporate authorities of the town, or if the land upon which the town, city, or village is situated, was originally granted to an individual, shall be presented in the name of such individual.

The second clause of this section does not apply to all lots situated within the limits of a city, town, or village, which existed on the 7th of July, 1846, but only to the lots owned or claimed by such city, town, or village.

The object of the section was to give to lotholders deriving title from a common source-from the authorities of a pueblo or town, or from an individual who was originally the grantee of the land upon which the pueblo or town is situated-the benefit of the examination by the board of the general title under which they hold, and relieve the commissioners from the necessity of considering a multitude of separate claims for small tracts depending upon the validity of the same original title. It intended that the corporate authorities should present under one general claim not only the interest of the city, town, or village which they represent, but also the separate interests of individuals holding under conveyances from them. The confirmation of the common title to these authorities would of course enure to the benefit of parties holding under them.

The section has no application to lots held adversely to the corporation or town by independent titles. The confirmation of a claim, whether made to corporations or individuals, could not enure to the benefit of parties holding adversely to them.

The claim of the Bernals, not being derived from the pueblo of San Francisco, or by any action of its authorities, but directly by grant from the political chief of the department, was adverse to the claim of the city. It was, therefore, properly presented to the Board of Commissioners for examination, and jurisdiction over it was rightfully taken by that tribunal.

The board having jurisdiction of the claim, its validity and title to recognition and confirmation were subjects for that tribunal's determination; and its adjudication, however erroneous, cannot be collaterally assailed on the ground that it was made upon insufficient evidence. The rule is as applicable to inferior and special tribunals as it is to those of superior or general authority, that where they have once acquired jurisdiction their subsequent proceedings cannot be collaterally questioned for mere error or irregularity. The provision of the fifteenth section of the act of March 3d, 1851, declaring that the final decrees of the commissioners, or of the District Court, and patents following them, in these California land cases, shall be conclusive between the United States and the claimants only, and shall not affect the interests of third persons, does not change the operation of this general rule. Final decrees in other judicial proceedings affecting the title to property, are not conclusive except between the parties; they bind only them and their privies; they do not conclude the rights of third persons not before the court, or in any manner affect their rights. Third parties, with respect to the adjudications of the Board of Commissioners, and of the District Court, on appeal from the board, stand upon the same footing as they do with respect to other adjudications in the ordinary proceedings of courts of law.

The decree of the District Court upon the claim necessarily involved an adjudication that the grant under which it was made was valid; and the decree approving the survey settled the location and boundaries of the land. As neither of these determinations can be collaterally assailed for any matter which might have been corrected on appeal, had it been brought to the attention of the appellate court, the plaintiffs must recover unless the defendants have a superior title to the premises.

Such title they claim to possess, as we have already mentioned, under the ordinance of the city of San Francisco, passed in June, 1855, and the subsequent legislation of the State and of the United States.

Whilst the claim of the city of San Francisco to her municipal lands was pending before the District Court of the United States, on appeal from the Board of Commissioners, the ordinance of June 20th, 1855, commonly known, from the name of its reputed author, as the Van Ness ordinance, was passed. By its second section the city relinquished and granted all the title and claim which she held to the lands within her corporate limits, as defined by the charter of 1851, with certain exceptions, to the parties in the actual possession thereof, by themselves or tenants, on or before the 1st of January, 1855, provided such possession was continued up to the time of the introduction of the ordinance into the common council, or if interrupted by an intruder or trespasser, had been or might be recovered by legal proceedings.

In March, 1858, the legislature of the State ratified and confirmed the ordinance; and in July, 1864, Congress passed an act by which all the right and title of the United States to the lands were granted to the city of San Francisco, for the uses specified in the ordinance. The party through whom the defendants claim was in the actual possession of the premises in controversy at the time designated in the ordinance, and also on the passage of the confirmatory act of the legislature, and therefore acquired whatever right or title the city then possessed.

The claim of the city was confirmed in May, 1865, by the decree of the Circuit Court of the United States, to which court the hearing of the claim had been transferred; and subsequently, with some modifications, by the act of Congress of March 8th, 1866.

The position of the defendants is that by the possession of the party through whom they claim, and the operation of the Van Ness ordinance, they acquired an older and superior title to that ceded to Bernal by the grant of Figueroa. This position assumes that the city possessed a title to the premises in controversy at the time the ordinance was passed, whereas, though the city was then asserting, in the courts of the United States, her claim to four square leagues, the boundaries of the tract were not defined, nor was it known what exceptions and reservations might be made from the claim when it should be considered and finally determined. Whoever received deeds from the city, or asserted title to parcels of land under the Van Ness ordinance, whilst the claim of the city to the land was thus pending, necessarily held whatever they took subject to the final determination of the claim. Their title stood or fell with the claim.

Now, when the final decree upon the claim was made there were excepted from the tract confirmed such parcels of land as had been, by grants from lawful authority, vested in private proprietorship, and had been finally confirmed to parties claiming under said grants by the tribunals of the United States, or should thereafter be finally confirmed to parties claiming thereunder by said tribunals in proceedings then pending therein for that purpose. This exception is not limited to parcels of land claimed under perfect grants, as contended by counsel, but includes all parcels claimed by private parties under grants from the authorities of the former government, the claims to which had been subjected, or might, in proceedings then, pending, be subjected to the examination of the tribunals of the United States, and had been, or might be, confirmed by them. The object of the exception was to prevent any possible controversy between parties claiming under the city, and parties holding under grants adjudged valid by the tribunals of the United States, and to protect the latter from being harassed by further litgation respecting their titles. By the language, 'such parcels of land as have been by lawful authority vested in private proprietorship,' no more is meant than parcels of land which have been granted by lawful authority to private parties.

The exception excludes, therefore, from confirmation to the city the land granted to Bernal, and the Van Ness ordinance did not operate to pass any right or interest in the demanded premises to the party through whom the defendants claim.

As, by the doctrine of relation, the decree confirming the title of the city took effect as of the day when her petition was presented to the board in July, 1852, it is contended that the exception is to be construed as referring only to grants, which had been confirmed previous to that date, or which might subsequently be confirmed in proceedings then pending. But the position is not tenable. Such a construction is not required from any application of the doctrine of relation. That doctrine in applied only to subserve the ends of justice, and to protect parties deriving their interests from the claimant pending the proceedings for the confirmation of his title. It gives effect to the confirmation of the title as of the day when the proceedings to secure such confirmation were instituted; and for that purpose only can the decree be treated as made at that time. No different interpretation is to be given to the language of the decree than would be given if the doctrine of relation had no application.

title: Lynch v. Bernal/Opinion of the Court


text: Talk:Lynch v. Bernal/Opinion of the Court


text:
Bennett v. Hunter

ERROR to the Supreme Court of Appeals of Virginia; the case being thus:By an act of August 5th, 1861, passed in quite the early part of the late rebellion, Congress having laid a duty on incomes, imposed a direct tax of $20,000,000 per annum upon the whole of the United States, of which a certain sum was apportioned to Virginia. The act provided that the tax should be assessed and laid on all lands according to their money value on the 1st of April, 1862; and it provided for the assessment and collection of the tax, and authorized the sale of so much of the lands of delinquent payers as might be necessary to satisfy the taxes due thereon; and furthermore provided that at any time after the advertisement for sale and before actual sale, the delinquent taxpayer might pay the amount assessed with ten per cent. penalty, and thus relieve his lands; and yet further that, in the event of a sale of property for non-payment of the tax assessed thereon, the owners, their heirs, executors, administrators, or any person in their behalf, might redeem the same within a certain period thereafter. The act also provided that if, at the time it went into operation, any of the people of any State should be in actual rebellion, so that the laws of the United States could not be executed therein, it should be the duty of the President to collect both land tax and income tax, with six per cent. interest, according to the provisions of the act, as soon as the authority of the government should be re-established.

Afterwards, however, the rebellion having now become widespread, and assumed far greater magnitude, an act of June 7th, 1862, declared that when in any State the civil authority of the government of the United States should be obstructed by insurrection or rebellion, so that the provisions of the former statute could not be peaceably executed, the direct taxes apportioned by that statute should be apportioned and charged in each State wherein the civil authority was thus obstructed, upon all the lands situate therein, respectively, &c., as the same were enumerated and valued under the last assessment and valuation thereof made under the authority of said State or territory previous to January 1st, 1861; and every parcel of the said lands, according to the said valuation, was declared to be charged, by virtue of the act itself, with the payment of so much of the whole tax laid and apportioned by said act upon the State wherein the same was situate, as should bear the same direct proportion to the whole amount of the direct tax apportioned to said State as the value of said parcels of land should, respectively, bear to the whole valuation of the real estate in the said State, according to the said assessment and valuation made under the authority of the same, and in addition thereto with a penalty of fifty per centum of said tax.

The 3d section allowed the owner or owners of the lands, within sixty days after the amount of the tax charged thereon, respectively, should have been fixed by a board of tax commissioners (the appointment of which was provided for by the act), to pay the same to the commissioners, and take a certificate thereof, by virtue of which the lands should be discharged from the tax.

The 4th section (which, if we divide the enactment into two clauses, reads thus) enacted as follows:

1st clause. 'That the title of, in, and to each and every piece or parcel of land upon which said tax has not been paid as above provided, shall thereupon become forfeited to the United States.

2d clause. 'And upon the sale hereinafter provided for, shall vest in the United States or in the purchasers at such sale, in fee simple, free and discharged from all prior liens, incumbrances, right, title, and claim whatsoever.'

The 7th section, as amended by the act of February 6th, 1863, required the board of tax commissioners in case the taxes charged on the lands should not be paid agreeably to the provisions of the 3d section, to advertise the property for sale, and to sell the same to the highest bidder, for a sum not less than the taxes, penalty, and costs, and ten per cent. per annum interest on the tax. And it also authorized the commissioners, in all cases where the owner of the property should not, on or before the day of sale, appear in person before them and pay the amount of the tax, with ten per cent. interest thereon and cost of advertising, or request the property to be struck off to a purchaser for a less sum than two-thirds of the assessed value thereof, to bid off the same for the United States, at a sum not exceeding two-thirds of its assessed value, unless some person should bid a larger sum, and in that case it declared that the property should be struck off to the highest bidder, who, upon payment of the purchase-money, should be entitled to receive from the commissioners their certificate of sale, which was thereby required to be received as prim a facie evidence of the regularity and validity of the sale, and of the title of the purchaser under the same, in all courts and places; with a proviso that the certificate should only be affected as evidence of the regularity and validity of the sale, by establishing the fact that the property was not subject to taxes, or that the taxes had been paid previous to sale, or that the property had been redeemed according to the provisions of the act. Also, by a proviso to this section, the owner of the property, or any loyal person having any valid lien upon or interest in the same, might, within sixty days after the sale, appear in person before the board of tax commissioners, and, if a citizen, upon taking an oath to support the Constitution, and paying the amount of the tax and penalty, with interest thereon, from the date when the State went into rebellion, at the rate of fifteen per cent., together with the expenses of the sale and subsequent proceedings, &c., redeem the same; and, if the owner were a minor, a non-resident alien, a loyal citizen beyond seas, a person of unsound mind, or under legal disability, the period of two years after the sale was allowed for redemption.

Under this act of the 7th of June, 1862-the second of the acts above mentioned-a tax was assessed upon a tract of land situate in Alexandria County, Virginia, of which one B. W. Hunter was then owner for life, the property in remainder being in his son, and default having been made in payment, the land was advertised for sale. After advertisement, but before sale, the amount of the tax, expenses, penalties, and costs (the whole being within $100), was tendered by a tenant, in occupation of about half of the premises, to the commissioners appointed for the collection of taxes under the act, who refused to receive the money, upon the ground that the tender was not made by the owner of the land in person. The land was then, January 11th, 1864, sold, and one Chittenden became the purchaser, and received a certificate from the commissioners, reciting the sale and his purchase for $8000. He thereupon leased the property to one Bennett, who went into possession. After the close of the war, Hunter, the son, who had served as an officer in the rebel army, but against whose property no proceedings for confiscation had been instituted, and whose estate in remainder had now become absolute, brought suit in one of the State courts of Virginia to recover possession of the land. No question was made of his right to recover if his title was not divested by the sale for taxes. The court in which the suit was brought gave judgment in his favor, and the judgment being affirmed by the Supreme Court of Appeals of the commonwealth, the other side brought the case here for review.

The case, as this court considered it, required the consideration and determination of one point only, namely, whether the commissioners under the act could make a valid sale for taxes, notwithstanding the previous tender by the tenant of half the premises, of the amount due? Other important and interesting questions were argued at the bar, but under the view taken of the case by this court they need not be stated.

Messrs. Chittenden and Willoughby (Mr. Hoar, Attorney-General, and Mr. Field, Assistant Attorney-General, filing a brief by leave of the court, for the United States), for the plaintiff in error:

1. Congress, having power to 'lay and collect' taxes, and 'to make all laws which shall be necessary and proper for carrying into execution' that power, may, for the purpose of enforcing their collection, declare a forfeiture of land for the non-payment of taxes laid thereon, or authorize a sale, by summary proceedings on the part of the executive branch of the government, of the whole of such land. Such summary measure is not in conflict with that clause of the Constitution which declares that no person shall be deprived of property without 'due process of law.'

That clause refers solely to the exercise by the State of the right of eminent domain.

2. The 4th section of the act of 1862 created a forfeiture to the United States of land upon which the direct tax had not been paid as provided in the 3d section of that act, which took effect at the time of default and prior to the sale or disposition of the property as provided for in the 7th and other following sections of the act.

This appears from the plain import of the language employed in declaring the forfeiture. The latter clause of the section does not qualify the preceding clause respecting the time when the forfeiture becomes absolute. The section has two branches-the first making the forfeiture of title, and the second the ultimate vesting of that title. To declare the title, in the particular event, to be forfeited to the United States, clearly means that the title is divested out of the defaulting owner, and devolved upon the United States. The section does not say that the delinquent lands shall be forfeited; but that the title of the owner of them shall be lost to him, and forfeited to the United States. But how, and for what purpose forfeited? The law itself gives the reply: not to be held by the United States for its own use, but to be sold for payment of taxes, penalty, and costs; and that sale, under the scheme of the law, becomes the appointed mode in which the title ultimately vests. Now, the condition of this sale is to the highest bidder; but in case no one bids to the amount of the penalty and costs, then it may be struck off to the United States at that sum. By the act of 1862, as subsequently amended by the act of 1863, the privilege of bidding by the commissioners, for and on behalf of the United States, was enlarged to the extent of two-thirds of the assessed value. In this way, the law appointed and designated two classes of purchasers at the sale-first, the highest bidders, and, secondly, the United States, acting through the commissioners, and subject to the restrictions of these acts. The United States, as well as the highest bidders, might be purchasers at these tax sales. When, therefore, the latter clause of this 4th section declares, that 'the title, upon the sale hereinafter provided for, shall vest in the United States or the purchasers at such sale,' it has exclusive reference to the United States as a purchaser, and not as the sovereign, to whom the forfeiture had been declared in the preceding clause.

After default, therefore, there was nothing left in the owner but a mere privilege of redemption, capable of being exercised only in such mode and upon such terms as the law prescribed.

3. It does not appear that the tax was paid within the sixty days. The case shows, that after the advertisement of the sale of said premises referred to in said certificate, and before sale, a tender by some one was made. But unless made within the sixty days, it was no tender even if it had been made by the owner in person. But

4. The owner did not make the tender, as the law required. The case shows that the tender was made by a tenant in occupation of about one-half of said premises. We concede that a lawful tender of the tax to the officer authorized to receive it would have been tantamount to payment, but deny that the tender in this case was lawful.

Messrs. J. A. Garfield and S. F. Beach, contra, citing, on the point of the tenant's tender, the case of Dubois v. Hepburn in this court, in which, on a case of redemption after sale, and, as they argued, a stronger case, therefore, than this, since interests had vested by the sale, the court say:

'Any person who has any interest in the land. . . is the owner thereof for the purpose of redemption. Any right of entry upon it, to its possession or enjoyment or any part of it, which can be deemed an estate in it, makes the person the owner for purpose of redemption.'

The CHIEF JUSTICE delivered the opinion of the court.

title: Bennett v. Hunter


text: Talk:Bennett v. Hunter

title: Talk:Bennett v. Hunter


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Bennett v. Hunter/Opinion of the Court

The case requires the consideration and determination of one point only, namely, whether the commissioners under the act could make a sale for taxes, notwithstanding a previous tender of the amount due?

In order to a right understanding of the real point in controversy, however, it will be useful to notice briefly the occasion and the objects of the enactments which have given rise to it.

The necessities of the war, arising from the rebellion, demanded immediate provision of adequate funds. For this purpose Congress increased the duties on customs, imposed a duty on incomes, and laid a direct tax of twenty millions of dollars upon lands. This latter tax was apportioned, agreeably to the direction of the Constitution, among the several States in proportion to their respective numbers; and it was provided that, if the act could not be carried into execution in any State in consequence of rebellion, it should be the duty of the President to proceed, as soon as the authority of the United States should be re-established therein, to collect both the land tax and the income tax, with six per cent. interest.

The income tax thus imposed has never been collected; but provision was made by the act of June 7th, 1862, for the collection of the land tax in the insurgent States. This act, or some similar provision, was necessary to enable the President to perform the duty devolved upon him by the act of 1861. The acts of 1861 and 1862 are, therefore, to be construed together. The general object of both was the same, namely, the raising of revenue by a tax on land. The first prescribed a mode of collection where the authority of the General Government was acknowledged, and no serious obstacle existed to the execution of the law; the second directed the mode of collection where this authority had been overthrown by insurrection, but had been sufficiently reestablished to make collection, to some extent at least, practicable.

The provisions of the latter act were necessarily adapted to the peculiar circumstances in which it was to be executed, and were in most respects more stringent than those of the former. The first act, for example, directed the assessment of lands by assessors to be appointed under it; the second adopted the valuation made under the authority of the several States prior to the rebellion, and charged directly upon each parcel of land its proportion of the tax apportioned to the State. Under the first act, delinquent tax-payers were permitted, at any time after advertisement for sale, and before actual sale, to pay the amount assessed with ten per cent. penalty, and thus relieve their lands. The second act imposed on each tract, without respect to delinquency on the part of the owner, a penalty of fifty per cent. in addition to its proportion of the tax upon the State, and, it is contended, allowed payment only within sixty days after assessment. In the earlier act indulgent provision was made for redemption after sale; in the latter, onerous conditions were imposed on such redemption.

Without adverting further to particular points of difference between the two acts, it may be observed that their most striking contrast was in their practical application.

The several adhering States, under the act of 1861, assumed and paid their respective quotas, and collected the amount of the tax from their own citizens under their own laws, so that in those States the machinery of the law was never really put in action; while in the insurgent States the act of 1862, so far as it was executed at all, was carried into effect according to its terms by the officials of the National government. In this way, the citizens of the adhering States were relieved from the processes of collection and from penalties and forfeitures for non-payment, while the citizens of the insurgent States who could not be thus relieved were exposed to their unmitigated operation.

Keeping these circumstances in view, we are to consider the effect of the sale for taxes made, as we have already stated, to the lessor of the plaintiff. And this must depend mainly on the construction to be given to the fourth section of the act of 1862.

This section provides 'that the title of, in, and to each and every piece and parcel of land upon which said tax has not been paid as above provided, shall thereupon become forfeited to the United States; and upon the sale hereinafter provided for shall vest in the United States, or in the purchasers at such sale, in fee simple, free and discharged from all prior liens, incumbrances, right, title, and claim whatsoever.'

And we are first to consider whether the first clause of this section, proprio vigore, worked a transfer to the United States of the land declared to be forfeited.

The counsel for the plaintiff in error have insisted earnestly that such was its effect. But it must be remembered that the primary object of the act was, undoubtedly, revenue, to be raised by collection of taxes assessed upon lands. It is true that a different purpose appears to have dictated the provisions relating to redemption after sale, and to the disposition of the lands purchased by the government; a policy which had reference to the suppression of rebellion rather than to revenue. But this purpose did not affect the operation of the act before sale, for until sale actually made there could be, properly, no redemption. The assessment of the tax merely created a lien on the land, which might be discharged by the payment of the debt. And it seems unreasonable to give to the act, considered as a revenue measure, a construction which would defeat the right of the owner to pay the amount assessed and relieve his lands from the lien. The first clause of the act, therefore, is not to be considered as working an actual transfer of the land to the United States, if a more liberal construction can be given to it consistently with its terms.

Now the general principles of the law of forfeiture seem to be inconsistent with such a transfer. Without pausing to inquire whether, in any case, the title of a citizen to his land can be divested by forfeiture and vested absolutely in the United States, without any inquisition of record or some public transaction equivalent to office found, it is certainly proper to assume that an act of sovereignty so highly penal is not to be inferred from language capable of any milder construction. In the case of lands forfeited by alienage the king could not acquire an interest in the lands except by inquest of office. And so of other instances where the title of the sovereign was derived from forfeiture. And in the case of United States v. Repentigny, where the forfeiture to the government of lands arose from omission to perform the conditions of the grant, this court held that before the forfeiture could be consummated by reunion of the land with the public domain, 'a judicial inquiry should be instituted, or, in the technical language of the common law, office found, or its legal equivalent,' should take place. The court said further that 'a legislative act directing the possession and appropriation of the land is equivalent to office found.'

Applying these principles to the case in hand, it seems quite clear that the first clause of the fourth section was not intended by Congress to have the effect attributed to it, independently of the second clause. It does not direct the possession and appropriation of the land. It was designed rather, as we think, to declare the ground of the forfeiture of title, namely, non-payment of taxes, while the second clause was intended to work the actual investment of the title through a public act of the government in the United States, or in the purchaser at the tax sale. The sale was the public act, which is the equivalent of office found. What preceded the sale was merely preliminary, and, independently of the sale, worked no divestiture of title. The title, indeed, was forfeited by non-payment of the tax; in other words, it became subject to be vested in the United States, and, upon public sale, became actually vested in the United States or in any other purchaser; but not before such public sale. It follows that in the case before us the title remained in the tenant for life with remainder to the defendant in error, at least until sale; though forfeited, in the sense just stated, to the United States.

But it has been insisted that the right to pay the tax and relieve the land from sale expired at the end of sixty days after the amount was fixed by the proper authority.

It does not appear when the amount was fixed, or when the sixty days ended. It may be inferred, perhaps, from the fact of sale, that default for payment had continued at least through that time, for otherwise there could have been no power to sell.

If this inference be admitted, however, it by no means follows that the right to pay the tax and have the land discharged from it expired with the sixty days. It is more reasonable to suppose that this right remained as long as the title of the land remained in the owner-that is, until after sale. And this view is confirmed by reference to another part of the act. The seventh section gives direction as to sales, the issue of certificates of sale to purchasers, and proceedings for redemption after sale, and then provides that 'the certificate of sale shall only be affected, as evidence of the regularity and validity of sale, by establishing the fact that the property was not subject to taxes, or that the taxes had been paid previous to the sale, or that the property had been redeemed according to the provisions of this act.' This provision makes it clear that proof of payment of taxes prior to the sale invalidates the certificate, and this could not be unless the right to pay the tax continued until the sale. This seems to leave no doubt on the point that the right to make such payment was not strictly limited to sixty days after the fixing of the amount of the tax.

But to whom did the right to make this payment belong? The obvious answer is, to the owner, either acting in person or through some friend or agent, compensated or uncompensated. The terms of the act are, that the owner or owners may pay; and it is familiar law that acts done by one in behalf of another are valid if ratified either expressly or by implication, and that such ratification will be presumed in furtherance of justice.

But it is insisted that the right of payment is limited by the act to the actual owner in his proper person. But we perceive no such limitation in its terms. On the contrary, the fact that the privilege of redemption after sale is limited to the owner or the loyal person having a lien or other interest, appearing in proper person and taking a prescribed oath, appears to us to afford an irresistible inference that the right of payment before sale is not so limited. It is a right which, under the act, belongs to the owner, and no oath is required in order to its exercise. It is a right to be exercised under the act as a law for raising revenue. It is expressly distinguished from the privilege of redemption after sale and complete divestiture of title, which is accorded upon very different principles, and in pursuance of a very different policy. We cannot doubt that it might be properly exercised by the owner in person, or through any other person willing to act in his behalf and not disavowed by him.

The application of these principles decides the case before us. The title and possession of the land, at the time of assessment, was in B. W. Hunter for life, with remainder in fee to his son, the defendant in error. The life estate terminated, and the fee became vested in 1864. The sum due the United States for taxes, penalty, and costs, was tendered to the commissioners before sale, and it was their duty to accept it. The tender was not objected to as insufficient, but was refused solely because not made by the owner in person. This refusal not being warranted by the act, the tender must be held good. The certificate of sale under which the plaintiff in error claims title cannot, therefore, be sustained. The sale must be regarded in law as having been made after the payment of the tax, and as insufficient to vest the title to the land in the purchaser.

It follows that the judgment of the Court of Appeals of Virginia must be

AFFIRMED.

title: Bennett v. Hunter/Opinion of the Court


text: Talk:Bennett v. Hunter/Opinion of the Court


text:
Bigelow v. Forrest

ERROR to the Supreme Court of Appeals of Virginia, the case being this:

Congress, by an act commonly called the Confiscation Act, passed July 17th, 1862, during the late rebellion, 'to suppress insurrection, to punish treason and rebellion, to seize and confiscate the property of rebels, and for other purposes,' after enacting that treason should be punished with death, provides:

'Section 5. That to insure the speedy termination of the present rebellion, it shall be the duty of the President of the United States to cause the seizure of all the estate and property. . . of the persons hereinafter named, and to apply and use the same, and the proceeds thereof, for the support of the army of the United States.'

This 5th section proceeded to name six classes of persons whose property should be liable to seizure, and first among them:

'Any person hereafter acting as an officer of the army or navy of the rebels in arms against the government of the United States.'

And the last clause of it enacts that

'It shall be a sufficient bar to any suit brought by such person for the possession or use of such property,. . . to allege and prove that he is one of the persons described in this section.'

The act proceeds:

'Section 7. That to secure the condemnation and sale of any such property, after the same shall have been seized, so that it shall be made available for the purpose aforesaid, proceedings in rem shall be instituted in the name of the United States, in any District Court thereof, or any Territorial court, within which the. . . property above described may be found;. . . which proceedings shall conform, as nearly as may be, to proceedings in admiralty or revenue cases; and if said property. . . shall be found to have belonged to a person engaged in rebellion,. . . the same shall be condemned as enemies' property, and become the property of the United States, and may be disposed of as the court shall decree, and the proceeds thereof paid into the treasury of the United States for the purposes aforesaid.

'Section 8. That the several courts aforesaid shall have power to make such orders, establish such forms of decree and sale, and direct such deeds and conveyances to be executed and delivered by the marshals thereof, where real estate shall be the subject of sale, as shall fitly and efficiently effect the purposes of this act, and vest in the purchasers of such property good and valid titles thereto.

'Section 14. That the courts of the United States shall have full power to institute proceedings, make orders, and do all other things necessary to carry this act into effect.'

By the latter clause of a 'joint resolution explanatory' of this act, passed on the same day with it, it was resolved by Congress 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 was a part of the history of this legislation of July 17th, 1862, that the then President, Mr. Lincoln, immediately after the passage of the act by both houses of Congress, had prepared the draft of a message objecting to provisions that might result 'in the divesting of title forever,' and suggesting or showing that the bill, as Congress had passed it, was in conflict with that clause of the Constitution, which ordains that 'no attainder of treason shall work corruption of blood or forfeiture, except during the life of the person attainted;' that before his message was presented to Congress, the joint resolution, above quoted, was passed to remove his objections; and that the President, in a message of July 17th, 1862, mentioned, that before he was informed of the resolution, he had prepared the draft of a message, stating objections to the bill becoming a law; a copy of which draft he submitted; and also mentioned that, considering that act of Congress, and the joint resolution explanatory thereof, as substantially one, he approved and signed both.

Under this act, above quoted, as appeared by a case agreed on and stated, in the nature of a special verdict, the District Attorney of the United States for the Eastern District of Virginia, in September, 1863, caused a tract of land in the eastern part of Virginia, of which a certain French Forrest (a person acting as an officer of the navy of the socalled Confederate States, from July 1st, 1862, to April, 1865, and thus one of the persons described in the 5th section of the above quoted act), was seized and possessed in fee, to be seized. A libel was afterwards, on the 9th November in the same year, filed on behalf of the United States, in accordance with the act, in the District Court of the district just named, 'against all the right, title, and interest, and estate of the said French Forrest, in and to the said tract of land.' The said libel proceeded to judgment in accordance with the act, and on the 9th of November, 1863, an order of condemnation was made by the court, by which it was decreed that the clerk should issue a venditioni exponas to the marshal, and that the property described in the libel be sold by the marshal of the district, for cash, to the highest bidder, and that he execute a deed to the purchaser for the same.

In pursuance of the decree the land was publicly sold, and knocked off on the 10th July, 1864, to one Buntley, to whom the marshal made a deed reciting the renditioni. Buntley's rights under the sale became afterwards vested in a certain Bigelow. Forrest died intestate November 24th, 1866, and his only child and heir-at-law, Douglass Forrest-whom the cases agreed on stated was 'one of the persons described in said section 5th, that is to say, who acted as an officer of the army and navy of the so-called Confederate States, from and after the passage of the said act till April, 1865.'-brought an action of ejectment, on the 1st of April following, in the Circuit Court of Fairfax County, one of the State courts of Virginia, against Bigelow, to recover the land, averring seizure in himself on the 1st of January, 1867.

The defendant having pleaded to issue, on the 8th day of November, 1867, filed his petition for the removal of the cause into the Circuit Court of the United States, under the provisions of the 5th section of the act of Congress of March 3d, 1863, entitled 'An act relating to habeas corpus, and regulating judicial proceedings in certain cases.'

This act thus provides:

'Section 4. That any order of the President or under his authority, made at any time during the existence of the present rebellion, shall be a defence in all courts to any action or prosecution, civil or criminal, pending or to be commenced, for any search, seizure, arrest or imprisonment made, done, or committed, or acts omitted to be done under and by virtue of such order or under color of any law of Congress.

'Section 5. That if any suit or prosecution, civil or criminal, has been or shall be commenced in any State court against any officer, civil or military, or against any other person for any arrest or imprisonment made, or other trespasses or wrongs done or committed, or any act omitted to be done at any time during the present rebellion, by virtue or under color of any authority derived from or exercised by or under the President of the United States, or any act of Congress; and the defendant shall. . . in the court in which such suit or prosecution is pending file a petition, stating the fact verified by affidavit, for the removal of the cause for trial at the next Circuit Court of the United States, to be holden in the district where the suit is pending, and offer good and sufficient surety for his filing in such court, on the first day of its session, copies of such process and other proceedings against him, &c.,. . . it shall then be the duty of the State court to accept the surety and proceed no further in the cause or prosecution. . . .. And copies being filed, as aforesaid, in such court of the United States, the cause shall proceed therein in the same manner as if it had been brought in said court by original process.'

Bigelow's petition for removal complied with the requisitions of this statute, respecting the form of procedure for removal.

The prayer of the petition was, however, denied, and, by agreement of the parties, the case already set forth, was stated in the nature of a special verdict, upon which the court gave judgment for the plaintiff. A petition was then presented to the District Court of Appeals praying for a writ of supersedeas to the judgment, and assigning as errors that the Circuit Court denied the motion to remove the cause into the Circuit Court of the United States upon the petition which had been filed for such removal, and also that the judgment was not warranted by the facts found in the agreement made in lieu of a special verdict, and that it was against the law and the evidence. The District Court of Appeals, however, being of opinion that no error had been committed in the cause by the Circuit Court of Fairfax County, refused the supersedeas. A petition was then presented by the defendant to the Supreme Court of Appeals of the State, complaining of the action of the District Court of Appeals, and praying for a writ of supersedeas to the judgment, assigning the same errors which he had assigned in his petition to the District Court. The application to the Supreme Court was unsuccessful. The supersedeas was denied, and thereupon the present writ of error was sued out. There were two questions, therefore, presented by the record:

1st. The question whether there was error in the refusal of the State Circuit Court to allow a removal of the cause into the Federal court; for if there was not, then obviously there was no ground for complaint that the Court of Appeals had refused a supersedeas to the judgment because such removal had not been allowed.

2d. The question whether there was error in the judgment of the court upon the merits of the case.

Messrs. Poland and Willoughby, for Bigelow, the plaintiff in error:

1. The court erred in denying the motion to remove the cause, for the action asserted a trespass or wrong to have been committed, and so fell within the act of March 3d, 1863.

The act on which the ejectment was founded was at least committed under color of an act of Congress, and also under color of an order given by authority of the President of the United States.

2. The decree of the District Court of the United States condemning and confiscating all the right, title, and interest of the original owner, under the act of July 17th, 1862, or Confiscation Act, is binding upon all but appellate courts. Such decree cannot be collaterally assailed, especially by a State court, except by showing that such District Court did not have jurisdiction.

It is agreed that the land was seized under the act. Proceedings were had 'in accordance with said act.' The act prescribes that the 'proceedings shall conform as nearly as may be to proceedings in admiralty or revenue cases.' Regularity in all that was done is of course to be inferred.

By the act all the property is to be seized. No other seizure would have been proper under the act. A life-estate could not have been seized, for the act did not direct it, nor did the owner have a life-estate. The officer could not make a seizure of separate interests. He is to take the property belonging to the person.

3. Douglass Forrest, plaintiff below, is admitted to have been, like his father was, one of the persons described in the fifth section of the Confiscation Act. The latter part of that section declares that 'it shall be a sufficient bar to any suit brought by such person for the possession or the use of such property, or any of it, to allege and prove that he is one of the persons described in this section.' No amount of argument could show more clearly that Douglass Forrest cannot maintain this action, than this statement in the law itself. It is decisive of this whole case.

4. The decree of the District Court, confiscating all the right, title, and interest of the original owner, was authorized by the law. This is not a proceeding in the nature of a bill of attainder. The clause of the Constitution concerning this subject had reference to bills of attainder which were common to the English Parliament, and had often been resorted to by several of the colonial legislatures during the revolution, by which it often happened that the estates of persons were confiscated after their death, and without conviction or trial, and often when such estates had passed into the hands of innocent holders. The true construction of this clause is that no attainder of treason should work a forfeiture except during the life of the person attainted; that is, that it should be done during his life. But this limitation upon bills of attainder does not apply to proceedings in courts, in individual cases, where there are regular trials and formal proceedings in which the individual has full opportunity to defend.

The last clause of the joint resolution, explanatory of the Confiscation Act, was passed out of superfluous caution to keep the act within the limits of the Constitution. It employs the very language of the Constitution, except in one word, which must have been inserted inadvertently in the hurry attending the passing of many resolutions with this, upon the last day of a long session. It was inserted because of the suggestion of the President, and because of his great desire to keep within the bounds of the Constitution. But neither the President nor Congress had fully considered the effect of the clause of the Constitution.

Any other construction of the real intention of Congress than that which we give it, would defeat the object of the bill, which was to raise money for the support of the army. The life of a traitor, liable to be executed for his crime, especially if the government could get him into custody, might be supposed to be very short. In any event the tenure of a mere life-estate would be so uncertain, that but very little money could be raised upon it. Such estates would not be improved, and instead of building up the country with loyal men upon these estates, as was contemplated, the tendency would be to destroy and impoverish it. Such a construction should not be given to an act of Congress if it is possible to give any other reasonable view of its intention.

Again, the act has at least equal force with the joint resolution. Both were approved by the President on the same day, and became a law at the same time. But the act says that all the property shall be seized, and the same shall be condemned. If the construction contended for by the defendant in error be allowed, then one exactly contradicts the other. If this be so we must give effect to that part of the bill which will be most consistent with its whole object. The word forfeiture is always spoken of as referring to all the interest a man has in property. It is one of the modes of absolute conveyance of real estate, and the word is never used in any other legal sense.

If any other construction is given to the word forfeiture than that for which we contend, both in the Constitution and the act, and which is the universal legal construction of the word, we shall be led into difficulties which cannot be solved by any known rules of law. Can it be said to affect only the life-estate? But the interest of the owner is not that of a life-estate. He holds in fee. Can the legislature determine that an estate in fee shall be a life-estate, or that it can be divided into one estate for life and some other interest? If it does make this separation there must be a remainder. Who is the holder of this? not his heirs, for there can be no heirs of the living. Besides a remainder must pass from the grantor at the same time with the creation of the particular estate, and must be supported by such particular estate, and if this fails the remainder falls with it. Can there be any inheritance from the estate which is left in the original owner? What kind of an estate is it that he has left which can descend to heirs? What is there left upon which an inheritance can be built, and what would be the name of such estate? The first rule of inheritance is, that the inheritance must be from a person who dies seized of the estate.

Mr. Conway Robinson, contra.

Mr. Justice STRONG delivered the opinion of the court.

title: Bigelow v. Forrest


text: Talk:Bigelow v. Forrest

title: Talk:Bigelow v. Forrest


text:
Bigelow v. Forrest/Opinion of the Court

The first question presented by the record for our consideration is whether there was error in the refusal of the State Circuit Court to allow a removal of the cause into the Circuit Court of the United States; for if there was not, there is no ground for complaint that the Supreme Court of Appeals had denied a supersedeas to the judgment because the removal prayed for had not been allowed.

The act of Congress of March 3d, 1863, under which the right to remove the cause was claimed, and under which the right existed, if it existed at all, enacted, in its fifth section, that if any suit or prosecution, civil or criminal, had been or should be commenced in any State court against any officer, civil or military, or against any other person, for any arrest or imprisonment made, or other trespasses or wrongs done or committed, or any act omitted to be done, at any time during the then existing rebellion, by virtue or under color of any authority derived from or exercised by or under the President of the United States, or any act of Congress, the defendant might effect the removal of the cause into the Circuit Court of the United States holden in the district where the suit might be pending. The act prescribed the course to be pursued in order to stay the proceedings in the State court and transfer the cause into the Federal tribunal. It must be conceded that the plaintiff in error complied with the requisitions of the statute and its supplements respecting the form of procedure for a removal of his cause. It remains, therefore, only to inquire whether the action was one which, under the act of Congress, could be removed. It was an action of ejectment, commenced on the 1st of April, 1867, in which the plaintiff averred seizin in himself on the 1st day of January, 1867, and an entry by the defendant upon the land on the same day, and a withholding of the possession. It might, perhaps, be sufficient to say that the act complained of, for which the suit was brought, was not, as described by the statute, 'an arrest or imprisonment made,' or 'other trespass or wrong done or committed,' or 'an act omitted to be done during the rebellion.' It is to suits for acts done or omitted to be done during the rebellion exclusively that the statute is applicable, and prior to January 1st, 1867, the rebellion had ceased to exist.

But we do not rest our judgment upon so narrow ground. In our opinion, the statute was not intended to apply to actions of ejectment. It is manifest to us that Congress had in view only personal actions for wrongs done under authority or color of authority of the President of the United States, or of some act of Congress. The fourth section made any order of the President, or under his authority, a defence in all courts to any action, civil or criminal, pending or to be commenced, for any search, seizure, arrest, or imprisonment made, done, or committed, or acts omitted to be done, under and by virtue of such order, or under color of any law of Congress. The description of the causes of action mentioned in the fifth section is slightly different, not quite so detailed and specific, but it is evident that they were intended to be the same in both sections, as well as in the seventh, which prescribed a statutory limitation to suits and prosecutions. The specification, which all of these sections contain, of arrests and imprisonments, or, as in the fourth section, of searches, seizures, arrests, and imprisonments, followed by more general words, justifies the inference that the other trespasses and wrongs mentioned are trespasses and wrongs ejusdem generis, or of the same nature as those which had been previously specified. This construction is fortified by the consideration that the mischief against which the statute was intended to guard was manifestly the excitement and prejudice so likely, in times of intense popular feeling, to attend suits in local courts for personal wrongs; excitement and prejudice which might render a fair trial difficult, and which might, indeed, greatly embarrass the government. The same mischiefs, in the same degree, could hardly have been expected to attend the trial of possessory actions for real estate. The action of ejectment is not a personal action, and it appears to us not to be embraced in any of the classes mentioned in the fourth, fifth, and seventh sections of the act.

It follows that there was no error in disallowing the removal of this case into the Circuit Court of the United States.

We proceed next to inquire whether there was error in the judgment of the court upon the merits of the case. The plaintiff below claimed the land as the sole heir of his father, French Forrest, who had been the owner down to September 1st, 1863, and who died intestate on the 24th day of November, 1866. The defendant claimed as a purchaser under a decree of confiscation made by the District Court of the United States for the Eastern District of Virginia, on the 9th day of November, 1863. French Forrest, the father of the plaintiff, was an officer in the navy of the Confederate States from July 1st, 1862, until April, 1865. In September, 1863, under the act of Congress of July 17th, 1862, known as the Confiscation Act, the land in controversy was seized as his property, libelled in the District Court of the United States, and, on the 9th of November next following, a decree of condemnation was entered, and the land was ordered to be sold by the marshal. Whether there was a venditioni exponas issued, as was ordered by the court, does not appear from the case stated (to which alone we can look for the facts), except that the marshal's deed recites its issue. We may assume that there was. The property was sold at the marshal's sale and a deed was made to the purchasers. Subsequently, and before the institution of this suit, the entire interest acquired by the purchase became vested in Bigelow, the defendant. But what was that interest?

The fifth section of the Confiscation Act of July 17th, 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 belonged. That it was not intended the mere act of seizure should vest the property seized in the United States is plain from the provisions of the seventh section, which enacted that to secure the condemnation and sale of any such property, after the same shall have been seized, proceedings in rem should be instituted in a District Court, and that if it should be found to have belonged to a person engaged in rebellion, or who had given aid or comfort thereto, it should be condemned as enemy's property, and become the property of the United States, and that it might be disposed of as the court might decree. 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 this 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 to the 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.

It is argued, however, on behalf of the plaintiff in error, that the decree of confiscation in the District Court of the United States is conclusive that the entire right, title, interest, and estate of French Forrest was condemned and ordered to be sold, and that as his interest was a fee simple, that entire fee was confiscated and sold. Doubtless a decree of a court, having jurisdiction to make the decree, cannot be impeached collaterally; but, under the act of Congress, the District Court had no power to order a sale which should confer upon the purchaser rights outlasting the life of French Forrest. Had it done so it would have transcended its jurisdiction. And it attempted no such thing. The decree made has not that meaning. It is true, the cause in the District Court was entitled, 'United States against all the right, title, interest, and estate of Franch Forrest in and to all that certain piece, parcel, or lot of land' (describing it); but all this is descriptive, not of quantity of estate, but of the subject of seizure, and that was land. 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. It is, therefore, a mistake to argue that the plaintiff below was permitted to impeach collaterally the decree under which the marshal's sale was made, or that the judgment of the court in this case impeaches it. The argument assumes what cannot be admitted, that the decree of the District Court established a confiscation reaching beyond the life of French Forrest, for whose offence the land was condemned and sold.

It has been further argued on behalf of the plaintiff in error, that the plaintiff below was barred against maintaining his suit by the latter clause of the fifth section of the act of 1862, which enacted that it shall be a sufficient bar to any suit brought by such person for the possession or use of such property or any of it, to allege and prove that he is one of the persons described in the section. The agreed statement of facts, in lieu of a special verdict, finds that the plaintiff is one of the persons described in said section fifth; but it immediately explains this by adding, 'that is to say, he acted as an officer of the army and navy of the so-called Confederate States from and after the passage of said act until April, 1865.' Was he, therefore, barred from maintaining the ejectment? The land was not seized or condemned for any act of his. He had no interest in it when it was declared forfeited. He could not have been heard in opposition to the decree of forfeiture. That proceeding was wholly inter alias partes. If, therefore, he is not at liberty to assert his claim, he is denied the right to his property without trial, without any procedure in due course of law, and the practical effect of the bar is to assure to the purchaser at the marshal's sale the enjoyment of the property after his right has expired, and to give him by estoppel a greater estate than he purchased. No construction of the act of Congress that works such results can be acceptd. It is plainly against the true meaning of the act. We have already remarked that the act and the contemporaneous resolution must be construed together. The latter declares that the act shall not be construed to work a forfeiture of the real estate of the offender beyond his natural life. It can do this neither directly nor indirectly. The punishment inflicted upon him is not to descend to his children. His heritable blood is not corrupted. It is, of course, necessary to give such an interpretation to the words of the statute that they shall not contravene the declared intent of Congress. And this may be done and effect given to every part, by holding that the persons described in the fifth section, who are barred from bringing a suit for the possession or use of such property, are those, and those only, whose property the President has caused to be seized. Such we think is the meaning of the clause barring suits.

This is all that need be said of the case. It is enough to show that, in our opinion, none of the errors assigned have any real existence. We do not care to speculate upon the anomalies presented by the forfeiture of lands of which the offender was seized in fee, during his life and no longer, without any corruption of his heritable blood; or to inquire how, in such a case, descent can be cast upon his heir, notwithstanding he had no seizin at his death. Such speculations may be curious, but they are not practical, and they can give no aid in ascertaining the meaning of the statute.

JUDGMENT AFFIRMED.

title: Bigelow v. Forrest/Opinion of the Court


text: Talk:Bigelow v. Forrest/Opinion of the Court