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DAY V. MICOU, 85 U. S. 156 (1873)

U.S. Supreme Court

Day v. Micou, 85 U.S. 18 Wall. 156 156 (1873)

Day v. Micou

85 U.S. (18 Wall.) 156


1. Under the Act of July 17, 1862, known as the Confiscation Act, and the Joint Resolution, of the same date, explanatory of it, only the life estate of the person for whose offense the land has been seized is subject to condemnation and sale. The fact that the decree may have condemned the fee does not alter the case.

2. When such person has, previously to his offense, mortgaged the land to a bona fide mortgagee, the mortgage is not divested. His estate and property in the land being but the land subject to the mortgage, any sale made in pursuance of the act passes the life estate subject to the charge.

An Act of Congress, Commonly called the Confiscation Act, passed July 17, 1862, [Footnote 1] during the rebellion, and entitled "An act to suppress insurrection, to punish treason and rebellion, to seize and confiscate the property of rebels, and for other purposes," after providing in its first section that treason shall be punished with death, and in its second that persons inciting, setting on foot, assisting, or engaging in rebellion &c., shall be punished with fine and imprisonment, in the third that every person guilty of either of the offenses described in the act shall be incapable to hold any office under the United States, with a limitation in the fourth section that the act should not affect those guilty before its date &c., enacted further:

"SEC. 5. That to insure the speedy termination of the present rebellion, it shall be the duty of the President 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."

The section proceeded to name six classes of persons whose property should be liable to seizure: officers of the army and navy of the rebels in arms against the government, or officers of the so-called "Confederate" states, and among them any person thereafter acting as a "cabinet officer" of

Page 85 U. S. 157

such states, or agents of the same, or officers or agents of someone of the rebel states, or persons who gave aid and comfort to the rebellion.

The sixth section was thus:

"If any person within any state or territory of the United States other than those named as aforesaid, being engaged in armed rebellion against the government of the United States or aiding or abetting such rebellion, shall not within sixty days &c., cease to aid, countenance, and abet such rebellion, all the estate and property, moneys, stocks, and credits of such person shall be liable to seizure as aforesaid; and it shall be the duty of the President to seize and use them as aforesaid or the proceeds thereof."

The seventh section provided:

"That to secure the condemnation of any such property after the same shall have been seized, so that it may 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 in any territorial Court, or in any United States district court within which the property above described or any part thereof may be found, . . . which proceedings shall conform as nearly as may be to proceedings in admiralty and revenue cases, and if said property . . . shall be found to have belonged to a person engaged in rebellion, or who has given aid or comfort thereto, 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."

By 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." [Footnote 2]

This statute, thus explained, being in force, a libel of information was filed in January, 1865, in the District Court for the Eastern District of Louisiana against "two squares of ground [described], property of J. P. Benjamin," which

Page 85 U. S. 158

property the said Benjamin had, in 1858, by proper instrument duly inscribed, mortgaged to one Madame Micou. In the libel of information, Mr. Benjamin was charged to have been owner of the property at the date of the act just named, and the ground on which a forfeiture was claimed was that subsequently to the passage of the act he had acted as a cabinet officer of the so-called Confederate states. An order of publication was made by which all persons interested in the property were required to appear on the 13th of February, 1865, to answer and to show cause "why said property and real estate, and the right, title, and interest therein of the said J. P. Benjamin, should not be condemned and sold according to law." There was no opposition, and on the 18th day of March, 1865, the judgment of condemnation was entered, the decretal order describing the property as belonging to J. P. Benjamin. The property was sold May 15, 1865, and a deed was executed to the purchaser, Madison Day.

In this state of things, Madame Micou or her representatives filed, in 1868, a bill of foreclosure of the mortgage against Benjamin as mortgagor and Day as a "third possessor" or terre tenant. Benjamin made no opposition, but Day set up a claim as owner of the property in fee simple, discharged of all liens, the foundation of such his claim being the already mentioned proceeding in rem in the district court under the Confiscation Act.

The court in which the bill was filed held that under this act, no estate of any kind in fee simple passed, but at best the life estate of Mr. Benjamin, and that this was subject to the mortgage of Madame Micou, regularly created and in existence before the rebellion began. The decree founded on this view being affirmed in the supreme court of the state, the case was now brought here.

Page 85 U. S. 160

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